Reforms of Tennessee’s capital punishment process face tough trials

On January 25, 2009, in News 2009, by Mark Norris

Political, fiscal factors shadow death row issues By Michael Kelley, Memphis Commercial Appeal January 25, 2009 The case arose from the brutal, senseless, unforgivable murder of an elderly Memphis couple in 1980. But Tennessee’s criminal justice system was on trial last month when the U.S. Supreme Court heard arguments in Gary Bradford Cone’s appeal of […]

Political, fiscal factors shadow death row issues

By Michael Kelley, Memphis Commercial Appeal
January 25, 2009

The case arose from the brutal, senseless, unforgivable murder of an elderly Memphis couple in 1980. But Tennessee’s criminal justice system was on trial last month when the U.S. Supreme Court heard arguments in Gary Bradford Cone’s appeal of his death sentence.

The justices were incredulous and angry, according to the description in a lengthy New York Times report, when evidence was presented that the Shelby County district attorney’s office had withheld important evidence from the attorney who represented Cone in his 1982 trial.

The evidence purportedly supported Cone’s claim that an amphetamine-fueled psychosis had contributed to his actions in the bludgeoning deaths of Midtown residents Shipley O. Todd, 93, and his 79-year-old wife, Cleopatra Todd.

As damning as the argument appeared — one Supreme Court justice said statements by the attorney representing the state of Tennessee were “utterly irrational” — the bad press was misleading, according to John Campbell, an assistant district attorney in Shelby County who has been prosecuting first-degree murder cases since 1985.

There had never been a hearing on the disclosure issue, Campbell said, before the case reached the Supreme Court.

But the Cone case nevertheless sharpened the focus on a state death penalty system with a serious problem.

How serious?

More than half of the 184 persons sentenced to death in Tennessee since capital punishment was restored in 1977 have had their sentences set aside. Convicts on death row spend an average of 10 years there. One has managed to delay his execution since 1978. Twenty-six men have spent 20 years or more fighting the ultimate punishment. Four have been executed. One inhabitant recently died there with no help from the state.

A legislative study committee headed by state Sen. Doug Jackson, D-Dickson, and Rep. Kent Coleman, D-Murfreesboro, will make another attempt this year to reform Tennessee’s system for moving death penalty cases through the investigation, trial court and appeals processes. But few of the changes favored by the committee are regarded as strong bets for passage in the General Assembly.

That doesn’t mean the concerns of those who support death penalty reform won’t get a fair hearing from the new GOP leadership in the legislature, said Senate Republican Leader Mark Norris of Collierville. Despite an increase in the concern about crime, Norris said, “I don’t know anyone who would use that to leverage someone’s life. Everyone is concerned to make sure that justice is done and done appropriately. No one wants to see anyone executed who shouldn’t be.”

One reform of criminal investigation procedures that is likely to pass would encourage law enforcement officers statewide to record custodial interviews of murder suspects. The Tennessee Bureau of Investigation, encouraged by the study committee, has taken the lead on that issue and virtually assured its passage.

Less likely to succeed, but not out of the question, is a measure that would require DNA evidence to be preserved throughout a convict’s incarceration. The current law covers preservation only for the duration of the appeals process.

Political risks

But significant progress on other death penalty reform measures is going to take a vigorous, sustained effort. Most Tennesseans support the death penalty in general, and in the current climate, a politician who supports reform runs the risk of producing material for an attack ad during his or her next re-election campaign.

The political risks are not insurmountable, though, said Memphis attorney Mike Cody, a former state attorney general, federal prosecutor and member of the Constitution Project, a national task force that completed a lengthy study of the death penalty in 2006.

“The only way to overcome that is to say that all of us should want to have guilty people convicted and punished, but none of us should want an innocent person convicted or, more important, put to death,” Cody said.

“We’re not talking about a person who, in fact, committed a murder. We’re trying to protect someone who did not commit a murder but is, in fact, caught up in the system due to either prosecutorial abuse, inadequate defense lawyers or some other reason.”

Members of the Constitution Project task force did not agree on whether murderers should be put to death, Cody said. “But all of us agreed that … if people through the legislative process insist on having the death penalty, it’s incumbent on the state and the citizens to do what they can to be sure it’s fairly administered.”

Economic ramifications

Of course, the economic climate also tends to dampen prospects for improvements in criminal justice. One of the most important goals of death penalty reformers in Tennessee is the establishment of a commission to set standards, train and oversee the selection of appointed defense attorneys who represent indigent clients and provide better funding for attorneys, who in some cases aren’t paid enough to cover their office overhead.

As with many other legislative initiatives, however, it’s difficult to see past the initial investment required. No one knows how much money the proposal to create an indigent defense commission might save taxpayers in the long run by ensuring more effective trial representation and reducing costly appeals.

And the initiative does not have the support of prosecutors, a high hurdle to cross in a law-and-order state.

Nor do many prosecutors support the notion of allowing defense attorneys to browse through prosecutors’ files in capital murder cases, a reform that supporters say could eliminate appeals based on the claim that prosecutors withheld information that could have aided the defense.

Opponents say the so-called open-file discovery could subject witnesses to harassment or perhaps even identity theft. Proponents point out that a form of open-file discovery has been adopted with some success by Davidson County Dist. Atty. Gen. Victor S. “Torry” Johnson III.

“Nobody has come up with a valid argument why it shouldn’t be done,” said Brad McLean, executive director of the pro-reform group The Tennessee Justice Project, pointing out that excluding certain types of information from the open-file rule could ease prosecutors’ concerns. But that, opponents say, would put prosecutors right back where they started — defending themselves against allegations that they withheld evidence.

Shelby County Dist. Atty. Gen. Bill Gibbons says prosecutors are committed to their obligation to release exculpatory evidence. But many object to the kind of written protocols such as those being advocated by death penalty reformers. “The minute you deviate,” he said, “you raise an issue that doesn’t have merit.”

Mental illness exceptions

There is little hope, either, for passage of one of the least understood goals of Tennessee’s death penalty reformers — excluding people with severe mental illnesses from the death penalty.

Reformers believe a life sentence with no parole would be more appropriate in such cases. But among the nation’s 36 death penalty states, only Connecticut excludes first-degree murder convicts from the death penalty because of mental illness.

Many states, including Tennessee, don’t allow death sentences for the mentally retarded. But excluding convicts with psychotic disorders lacks broad support. Among other handicaps, the idea can easily be confused with the unpopular verdict of not guilty for reasons of insanity.

Like so many other aspects of the reform movement, there is little doubt that the proposal to make defendants with severe mental illnesses ineligible for the death penalty would save money, but it is difficult to say how much. That makes supporters of reform realistic about the dim prospects for immediate progress, but determined to stay on the case.

“This may not be the best year,” says Jackson, the primary reform sponsor in the Senate, “but we will have to deal with this in the future. Few things are as profound as the government taking the life of a citizen.”

Few things are as expensive, either.

Third time for Cone

The case that resulted in the Supreme Court spanking for Tennessee last month was not an unfamiliar one to the justices.

It was the third time Cone’s lawyers had traveled to Washington to plead for his sentence to be set aside. On two previous occasions, the high court has reversed rulings from the federal appeals court in Cincinnati that had favored Cone, a Vietnam veteran whose behavior may have been influenced by post-traumatic stress disorder, or perhaps by excessive drug use — after so much time, that question seems almost moot.

The legal question, as usual in old capital murder cases, is not so much about Cone himself but rather an arcane, technical matter — whether and when federal courts are free to reconsider state court rulings in capital cases.

This time, 28 years after his arrest, the court may be poised to send Cone back to court again. In the meantime, he continues to serve as an exhibit in the case against capital punishment in Tennessee — growing old and collecting mold in his home on death row.