For the second time since its current term began in October, the Supreme Court has considered and rejected a death row inmate's effort to have his sentence overturned because of alleged bad lawyering.
By a vote of 8 to 1, the court ruled yesterday that Tennessee may execute Gary Bradford Cone, a convicted double murderer, even though his defense attorney did not make a final appeal for life imprisonment in the sentencing phase of his 1982 trial.
Overturning a federal appeals court's ruling that the lawyer had abdicated his responsibility to function as an adversary to the state, the court, in an opinion by Chief Justice William H. Rehnquist, held that the lawyer's silence was a defensible strategic decision intended to preclude a devastating prosecution rebuttal -- not a denial of the defendant's constitutional right to effective assistance of counsel.
Concerns over the legal representation available to capital defendants have fueled the national debate over the fairness and accuracy of state death penalty procedures. Such concerns were cited in a recent report by an Illinois commission recommending changes in that state's death penalty system.
And two justices of the Supreme Court have recently spoken out on the issue.
Justice Ruth Bader Ginsburg told a Washington audience last year that she has "yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial."
And Justice Sandra Day O'Connor told a group of Minnesota lawyers that it may be "time to look at minimum standards for appointed counsel in death cases."
But these observations have not yet translated into majority opinions at the court, where the justices must apply precedents that define constitutionally defective legal assistance to specific cases.
In a case decided earlier this term, Mickens v. Taylor, the court ruled, by a vote of 5 to 4, that a Virginia death row inmate's defense had not necessarily been harmed as a result of the fact that his attorney had previously represented the victim -- a fact that the lawyer failed to disclose and that the trial judge might well have known but failed to discover.
O'Connor voted in the majority in that case, as she did yesterday. Ginsburg dissented, along with justices John Paul Stevens, David H. Souter and Stephen G. Breyer.
Yesterday, however, the only dissenter was Stevens. Taking issue with the majority's "uncritical analysis" of the lawyer's proffered reasons for not making a closing argument, he said that the jury had been deprived of information that might have made them feel more sympathetic to Cone, a college graduate and Bronze Star winner in Vietnam who turned to drugs and crime after his return from the war.
This, Stevens wrote, was "nothing short of incredible."
The case is Bell v. Cone, No. 01-400.
