U.S. Supreme Court
Justice Souter Calls Lawyer’s Argument ‘Utterly Irrational’
Posted Dec 10, 2008 6:07 AM CST
By Debra Cassens Weiss
A lawyer for the state of Tennessee defending prosecutors’ decision to withhold evidence in a death penalty trial encountered skeptical and indignant questioning from several justices on Tuesday.
“There were flashes of incredulity and anger from justices” during the oral arguments, the New York Times reports. At issue is when federal courts may reconsider state court rulings in death penalty cases, according to the story. But oral arguments focused on prosecutors’ failure to turn over the evidence.
The defendant, Gary Cone, had admitted murdering a Memphis couple, but his lawyer had claimed he committed the crime in an amphetamine psychosis, the Times says. Prosecutors called the defense “baloney” while withholding police reports and witness statements from the defense saying Cone was a heavy drug user.
The U.S. Supreme Court has twice upheld the death sentence for Cone, but arguments Tuesday raised the possibility that this time the court will overturn it, the Washington Post reports.
Jennifer Smith, a lawyer in the state attorney general's office, faced tough questions from Justice Stephen G. Breyer about why the evidence was withheld, the Post says.
"You're saying that the lawyer, the trained lawyer for the government, who knew this information and knew the defense, just what? Just overlooked it by accident? Just what?" Breyer demanded to know.
Justice David H. Souter pursued a line of questioning about whether the undisclosed evidence would have helped Cone, according to the two newspaper accounts. Smith finally said it would not have benefited the defendant.
“I will be candid with you,” Souter responded. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
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Comments
B. McLeod
Dec 10, 2008 8:40 AM CST
Who is being “Irrational”? The items in question are described as “police reports” and “witness statements” that the defendant was a heavy drug user.
What would be the basis for the admission of the police reports? It seems unlikely the officers would have reliable, first hand knowledge of the defendant’s drug use. Also, if the defendant was a heavy drug user, doesn’t the defendant know he is a heavy drug user? Would it not follow that he would also have a pretty good idea who the other potential witnesses are that would know he is a heavy drug user? In other words, isn’t this all very clearly information the defense could readily have developed even if the witness statements in the hands of the prosecutors never even existed?? Where is the “prejudice”?
mythago
Dec 10, 2008 10:05 AM CST
The issue is not whether the police reports would have been admissible into evidence, but the fact that they weren’t turned over to the defense attorneys.
B. McLeod
Dec 10, 2008 10:46 AM CST
The issue should be whether it made a difference to the case. Normally, police officer (lay) opinions as to the defendant’s drug use, and even fact testimony by other witnesses with personal knowledge of the defendant’s general drug use would not suffice to support the defense claim (that the defendant was in an “amphetamine psychosis” at the time of the killings). This claim would obviously require “expert” testimony. To the extent it could have been relevant what drugs the defendant actually used in close proximity to the killings, the defendant should have known better than anybody who the witnesses to those facts were. It is not as though the prosecution somehow prevented the defense from discovering or developing that information.
SorryMcLoed
Dec 10, 2008 11:44 AM CST
B. McCloed’s otherwise cogent argument misses the central premise of the adversarial system. We don’t allow prosecutors to discern the relative worth of evidence for the defense. Discovery that State Witnesses have personal knowledge of an addiction that supports the defendant’s defense can hardly be characterized as “gray area” in the spectrum of exculpatory. It should also be noted that a death penalty case prosecutor should simply know better than to restrict any discovery. The post hoc analysis of whether it “could/would have” helped is a tragic consequence of this prosecutors intentional conduct.
Of course, McLeod’s attack on the admissibility is off the mark. First, the police reports could absolutely be introduced by the defense. Second, any cross or direct exam which resulted in contradictory testimony could permit impeachment.
Jim
Dec 10, 2008 1:23 PM CST
What if evidence HAD been turned over, but a confession were extracted by short ter psychological torture (2 hours) or long term intense questioning (100 hours)? See Chambers, et al. =v. Florida from the early 1940’s
2008-12-10-4 1423 -0400
DG
Dec 12, 2008 4:45 AM CST
People… we are clearly told that Ms. Smith focused her argument on the prosecution’s failure to turn over the evidence regarding his drug use, which a short time later she followed with an admission that the evidence would not have been helpful to the defendant anyway. This is irrational not only because it seems as though this evidence would in fact be helpful to the defendant, but more importantly, if she didn’t actually believe it would be helpful, why was she spending the majority of her time before the Court arguing a point that was moot?
D.
Dec 12, 2008 6:06 AM CST
I think some people need to actually read the transcripts. I was laughing out loud.
H. Whitaker
Dec 12, 2008 6:37 AM CST
I don’t do criminal work, so my question may be naive. How would an amphetamine pyschosis be a defense? Isn’t that like saying the defendant could not form intent because they were drunk? If a person puts themself into an altered state, I thought (perhaps incorrectly) that they could not avoid responsibility for their actions.
Brett
Dec 12, 2008 7:36 AM CST
Evidence of amphetamine psychosis would not be used as a defense to the crime itself. It would however be used in sentencing. Evidence of extreme drug abuse may persuade a jury that life in prison is more appropriate than death. This evidence ABSOLUTELY should have been turned over.
Stop using our money
Dec 12, 2008 8:03 AM CST
The real crime here, which people are overlooking, is that this case has been to the U.S. Supreme Court THREE times now! What an extraordinary waste of our judicial resources, taxes, and time.
Marc
Dec 12, 2008 8:22 AM CST
Smith was from the prosecutor’s office. She was arguing for the state, not for the defense. And, from what I remember from law school, the defense would be some sort of dimished capacity.
Why is this a waste of money? Because we aren’t just letting the state of Tennessee get away with judicial misconduct to fry the guy?
Scott
Dec 12, 2008 8:39 AM CST
We abandoned the notion that the end justifies the means a long time ago - or have we? The real question is whether we willl allow the government to cheat when they deem it appropriate. Why can’t some prosecutors just follow the law and turn over all information as required. The issue of whether it is helpful or not, or relevant or not, or important or not is not the government’s decision, but a decision ultimately for the defense and then the trial court. Play by the rules and the Supreme Court will not have to hear the case multiple times.
c.h.
Dec 12, 2008 9:03 AM CST
I really appreciated these thoughtful and knowledgeable comments about an important subject. They weren’t silly, and I learned something. I wish all the comments to the articles posted were as informative and insightful as these were.
John P. Horan
Dec 12, 2008 9:16 AM CST
Justice Souter was inappropriately intemperate. He needs to apologize to the lawyer and to his colleagues for his lack of decorum. It costs him nothing to be kind and respectful. A person with his intellect and experience should be able to have an unexpressed thought.
SRG
Dec 12, 2008 9:45 AM CST
As a prosecutor I know the pitfalls of the discovery process in a criminal case. But the best practice is to simply turn it over. If you have the evidence, you can overcome the negatives beyond a reasonable doubt. What is the point of giving them a reason to appeal? Turn it over and save yourself the retrial.
Former prosecutor
Dec 12, 2008 9:49 AM CST
I agree with #4…this is not a gray area. Police reports and witness statements are not to be withheld from the defense because the prosecutor thought them to not be exculpatory. There are rules to this “game”, and the stakes are very high. If I have any faith in this system or my case as a prosecutor, I would ethically and morally have to give the defense everything I could. Put your 12 citizens in the box, and let them decide whether drug psychosis is a defense or a mitigation. Btw, what if, by having those police reports and witness statements, the defense was able to spot another possible trial strategy—one that was more persuasive than the chosen line of defense? By withholding evidence, the state denies opposing counsel a complete picture of the state’s case, and its potential weaknesses. Tsk, tsk, state of Tennessee.
j.b.c.
Dec 12, 2008 9:50 AM CST
There can be no possible doubt that the state’s information was relevant. Consider that the defense, during the sentencing stage, wants the jury to believe that he really is a heavy abuser of drugs. Of course, he can testify himself and he knows others who can as well. But the prosecution will always challege the credibility of the person testifying. The fact that the police investigation identifies the witness with relevant information is at least something that may alter the credibility balance in favor of the defense. There is no way the prosecutor would not have known this.
The Litigator
Dec 12, 2008 9:58 AM CST
The question is not whether the exculpatory evidence would have been helpful during the trial as it was evident, through defendant’s own admission that he killed the victims. This evidence is however, integral in the sentencing phase, a jury may have voted for life in prison rather than recommend the death penalty were they aware that the defendant was a heavy drug user whose state of mind was altered at the time of the killings. The voluntary intoxication does not excuse the crime, but it may mitigate the punishment to be meted out.
Above all, the State should always play by the rules, regardless of how heinous a crime is. Fighting for the victims doesn’t have to be done by disregarding the rules of evidence or failing to provide any mitigating or exculpatory evidence to the defense.
Nevertheless, should this case be sent back to the trial court for re-trial, the defendant may still get the death penalty regardless of his claim that he was induced at the time, it all depends on whether the jury would consider the evidence of heavy drug use as mitigating.
Jeremy
Dec 12, 2008 10:08 AM CST
Under Brady v. Maryland and Giglio v. United States, the prosecution must disclose everything it collects in relation to investigation in the case. The state does not have to go out of its way to exculpate the defendant or build an argument for the defendant. If the information, while not pertinent to the prosecutor’s case, was collected collaterally, then it should have been disclosed.
Glenn
Dec 12, 2008 10:39 AM CST
Comment 7 is right on the money. Read the transcripts.
Dan S.
Dec 12, 2008 11:06 AM CST
Worth noting that there was other evidence aside from the police report indicating a history of drug use. This was a bad, bad case and I understand the Justice’s frustration. When the government is deciding whether to take a life, you don’t cut corners. Also, the issue of his mental state does not just count in the sentencing phase: If he was not capable of formulating a plan of action, then he was inappropriately charged. The death penalty is (and should be) only available in cases of first-degree murder; if the defendant was not capable of formulating a plan, he was guilty of a lesser charge (which would still likely entail a life sentence).
John Gear
Dec 12, 2008 12:10 PM CST
What is needed, if we are not going to abolish the death penalty entirely, is to eliminate the lawyer-created havens of judicial and prosecutorial immunity for capital cases. Death rows are stacked with victims of shoddy trials, overreaching prosecutors, and a “win at all costs” mentality. If the key actors—- the judges and the prosecutors—- did not enjoy immunity from civil suits for wrongful conviction and from errors (errors that can and have resulted in innocent people being murdered by the state) then we would be able to have a much greater insight into these actors _real_ beliefs about the ability of the system to make correct judgments.
Andy the Lawyer
Dec 12, 2008 12:26 PM CST
Mr. Horan (# 14) is incorrect. Justice Souter’s assessment from the bench was prompted by a lawyer’s argument that defied logic—that counsel for a criminal defendant whose defense against the death penalty was that he had murdered while in a state of amphetamine psychosis would not have benefitted from the prosecution’s disclosure of police reports and other documents confirming the defendant’s heavy drug use.
When a lawyer insults a judge’s intelligence by saying something that makes no sense, judicial manners are less important than prompt chastisement of the lawyer. This is no less true than when the insulted judge sits on the U.S. Supreme Court.
I’d say that Justice Souter showed remarkable restraint. In a less august courtroom a far less temperate response could have been expected from the bench—and deserved.
Victoria
Dec 12, 2008 12:39 PM CST
Comment 7 and 20 - Where can I find the transcripts?
S. Brown
Dec 12, 2008 12:47 PM CST
I agree with Andy (#23) wholeheartedly. Later in the transcript, Justice Breyer appears to agree with Justice Souter that the argument in question is wholly irrational. Should Breyer also apologize? Of course not. She’s fortunate that he merely expressed his opinion of the argument rather than humiliating her in open court, as a less confident and restrained judge may have been tempted to do.
S. Brown
Dec 12, 2008 12:49 PM CST
Victoria, you can find the transcript here:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1114.pdf
t.j.
Dec 12, 2008 12:57 PM CST
If it’s clear that the prosecutor’s decision not to turn over the evidence was so wrong, you have to feel sorry for Ms. Smith who was sent to clean up this prosecutor’s mess. Granted, she made a poor argument, but it doesn’t sound like she had any other arguments to offer. The prosecution screwed up. Maybe the state should have just owned up to it rather than sending an attorney to the Supreme Court to be slaughtered.
T. Owens
Dec 12, 2008 1:52 PM CST
For those who believe that the lawyer arguing for the prosecutor was mistreated, you must not have kids. See, when my kid confesses to doing a horrible deed, I still take account of mitigating circumstances. If one of the other kids knowing about a mitigating circumstance just sits idly by and watches the other kid go down in flames, that kid risks a punishment of his own. Here it’s even worse because the stakes are much higher.
Amen
Dec 12, 2008 2:05 PM CST
t.j. is right on the mark. States never seem to be able to decide to do the right thing where such a decision might call into question a prosecutor’s actions. That serves nobody’s interest.
Legal Eagle
Dec 12, 2008 2:38 PM CST
Is McLeod the new “Ellen B.”?????? He seems to have replaced “her.”
shahid
Dec 12, 2008 3:23 PM CST
Before commenting, I did take time to read the transcript. The linguistic gymnastics used by the State’s attorney is amazing. This should be required reading for every trial attorney.
BD
Dec 12, 2008 3:33 PM CST
Opening civil liability is an interesting idea. However, in a case like this, wouldn’t it only come into play when an inmate is executed and then (totally) exoneratied after the fact? Otherwise, what are the damages?
We should just release them. Make it as high a stakes game for the prosecution as it is for the Defense.
sb
Dec 12, 2008 6:32 PM CST
In some states, amphetamine psychosis would negate the specific intent required for premeditated murder. Whether for that reason or as mitigation in sentencing, in any state it would serve to either reduce to 2nd degree or take the death penalty off the table.
sb
Dec 12, 2008 6:34 PM CST
Also, in response to Mr. McLeod’s statements, information doesn’t have to be admissible to be discoverable, only reasonably likely to lead to admissible information.
sb
Dec 12, 2008 6:37 PM CST
BD, you don’t need actual damages for a section 1983 civil rights claim. You only need a civil rights violation. Prosecutorial misconduct interferes with due process and a fair trial; it doesn’t matter that the guy was going to prison for a minimum of his entire life.
B. McLeod
Dec 12, 2008 6:39 PM CST
In my humble opinion, nobody can replace Ellen B.
After reviewing the comments posted by my colleagues, I realize my initial comments were ill-considered, and I thank those who have pointed out the bearing that the materials might have had on “mitigation” issues in the sentencing phase. I should have thought that through more carefully before commenting on the story.
sb
Dec 12, 2008 6:42 PM CST
John Gear, prosecutors need immunity so they can do their jobs effectively without fear of civil reprisal because some cop screwed up somewhere. That doesn’t mean that they aren’t still subject to ethical standards, though; a prosecutor may still be disbarred or otherwise censured.
Kalifornia Arnold
Dec 13, 2008 4:23 AM CST
The actions of Souter and the lawyer—Dope and Dopier
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