Owens v. Guida and Cone v. Bell:

In his Owens v. Guida dissent, Judge Merritt suggested that prosecutorial misconduct was "typical" of the Memphis district attorney's office and referenced Cone v. Bell, another death penalty case out of Tennessee in which Judge Merritt dissented. Perhaps not coincidentally, Owens was released on Tuesday, the very same day the Supreme Court heard oral argument (for the third time) in Cone -- an argument in which Gary B. Cone's lawyers stressed alleged prosecutorial misconduct in his case.

Twice before the Sixth Circuit had granted Cone habeas relief, and twice before the Supreme Court reversed and remanded. The third time around, the Court denied Cone's habeas petition, and the Supremes granted cert again. If the press reports are any indication, they may reverse the Sixth yet once more -- only this time in Cone's favor.

The Cone argument was covered in the NYT, WaPo, and AP. My prior posts on the case are here and here.

emsl (mail):
Having read the transcript in the Cone case and the decision in Owens, I can only say that I am shocked and appalled both by the conduct of the prosecutors and the tolerance shown by the courts. This is outrageous. As a former AUSA, I can see no possible justification or explanation. I am not alone as both Justice Breyer and Justice Souter seemed to have the same problem.

My reaction, however, may be mistaken. I would really like to hear some defense or justification that makes sense.
12.12.2008 9:07am
I actually do hope the Supreme Court pays a little attention to the procedural default question before them. I know Roberts wanted to say that the merits have already been adjudicated so it's irrelevant.

But that procedural default stuff is tricky and needs some standardization. States and some courts/prosecutors have played fast and loose with that stuff. I recognize that habeas is an inappropriate forum for arguments you never brought before the state or didn't properly bring before the state at the time you were supposed to (i.e. tried to raise your constitutional claim on state collateral relief, other than ineffective assistance of counsel or another that must be brought on collateral relief), but there's too many cases where the state argues that it was waived or wasn't properly brought or they got the run around about when they were adjudicated.

And it's a bit unseemly some of the checklist-form type opinions from state courts where they just check the boxes for each claim: "Defendant's ineffective claim was (a) procedurally defaulted, (b) fails on the merits. Next claim: it too was defaulted and fails on the merits. Same for all claims. End of opinion."
12.12.2008 10:41am
JMB (mail) (www):
Wake up you sovereign pigs, for your federal masters are dipping in slop.
12.12.2008 2:15pm

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