Caseflicks

Supreme Court of the United States • 2002

Bell v. Cone

535 U.S. 685 | 122 S. Ct. 1843 | 152 L. Ed. 2d 914 | 2002 U.S. LEXIS 4020

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Takeaway

In short, Bell v. Cone sharply confines Cronic's presumed-prejudice rule to a complete failure of advocacy; even serious, specific errors in a capital sentencing ordinarily must be tested under Strickland and overcome AEDPA's deferential habeas standard.

Background

Gary Cone was convicted and sentenced to death in Tennessee for murdering an elderly couple after a two-day crime spree that included a jewelry-store robbery, shootings during his flight from police, and other offenses. At the guilt phase, Cone's lawyers conceded most of the conduct but argued that he was legally insane because Vietnam-related trauma and extensive drug use had caused psychosis. They presented testimony about his drug dependence, post-traumatic stress, military service, and expressions of remorse.

The next day, at the separate capital-sentencing hearing, defense counsel made an opening plea for mercy and referred to mitigating evidence already introduced. Counsel cross-examined a State witness to establish that Cone had received a Bronze Star, objected successfully to graphic photographs, presented no additional witnesses, and waived final argument. Waiving argument prevented the State's lead prosecutor from making a rebuttal closing. The jury found four aggravating circumstances and sentenced Cone to death.

Tennessee courts rejected Cone's postconviction claim that counsel had been ineffective at sentencing. They treated counsel's decisions about mitigation witnesses and closing argument as tactical choices within the range of competent representation and concluded that Cone's sentence rested on the facts and governing law, rather than counsel's asserted shortcomings. On federal habeas review, the Sixth Circuit reversed the sentence. It held that counsel had entirely failed to subject the State's request for death to meaningful adversarial testing, so prejudice was presumed under United States v. Cronic. The Supreme Court reversed the Sixth Circuit.

Issues

Issue #1

Whether Cone's claim of ineffective assistance at the capital-sentencing hearing was governed by the presumed-prejudice rule of United States v. Cronic rather than the ordinary deficient-performance-and-prejudice test of Strickland v. Washington.

Holding

No. Cone's claim was governed by Strickland, not Cronic, because counsel did not entirely fail to oppose the prosecution throughout the sentencing proceeding.

Reasoning

Strickland ordinarily requires a defendant to establish both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different absent counsel's errors. Cronic recognizes narrow circumstances in which prejudice is presumed, including a complete denial of counsel, circumstances making effective assistance virtually impossible, or counsel's complete failure to subject the prosecution's case to meaningful adversarial testing.

Cronic's meaningful-adversarial-testing exception requires a complete failure. Cone alleged that counsel failed at particular points—by not presenting additional mitigating evidence and by waiving final argument—not that counsel wholly ceased to oppose the State during the sentencing proceeding. That distinction is one of kind, not merely degree, for purposes of choosing between Cronic and Strickland.

Counsel did act as an advocate at sentencing: he gave an opening statement urging mercy, directed the jury to mitigating evidence from the guilt phase, established Cone's Bronze Star through cross-examination, and successfully objected to the State's proposed photographs. The challenged omissions therefore did not amount to the total breakdown in adversarial testing contemplated by Cronic.

The Court's prior cases also treated claims involving a lawyer's failure to present mitigating evidence at a capital sentencing hearing as ordinary Strickland claims. Accordingly, Tennessee's use of Strickland was not contrary to clearly established federal law.

Issue #2

Whether the Tennessee courts unreasonably applied Strickland when they rejected Cone's sentencing-phase ineffective-assistance claim, as required for federal habeas relief under 28 U.S.C. § 2254(d)(1).

Holding

No. The state court's conclusion that counsel's mitigation decisions and waiver of closing argument were tactical choices within the range of reasonable professional assistance was not objectively unreasonable.

Reasoning

Under AEDPA, a federal court may not grant habeas relief merely because it believes a state court applied Strickland incorrectly. The state court's application must be objectively unreasonable. This standard operates alongside Strickland's own strong presumption that counsel's conduct may reflect sound trial strategy and must be evaluated without hindsight.

Counsel could reasonably decide not to repeat the medical experts' testimony at sentencing because the same jury had heard it shortly before during the guilt phase. The trial court instructed the jury that it could consider evidence from both phases and specifically could treat mental disease or defect insufficient to establish insanity as mitigating evidence. Counsel had also referred to that evidence in his sentencing opening.

The state court could reasonably accept counsel's decisions not to call other potential mitigation witnesses. Counsel believed Cone's mother had not performed well at the guilt phase and wished to avoid further cross-examination. Cone's sister did not wish to testify, and her testimony might have invited damaging questions about Cone's call to her from the victims' home after the murders. Counsel also had reason to fear that testimony from other family, childhood, or military witnesses could expose Cone's criminal history or weaken the defense theme by emphasizing his otherwise normal background.

Waiving final argument was a difficult tactical choice, but not one no competent attorney could make. Counsel had already pleaded for mercy in opening, the State's evidence at sentencing was relatively brief, and the junior prosecutor's initial closing was low-key. By waiving a defense summation, counsel prevented rebuttal by the State's lead prosecutor, whom he believed would be especially persuasive and would vividly portray Cone as a heartless killer immediately before deliberations.

Because reasonable lawyers could disagree over whether the advantages of a closing argument outweighed the risk of a powerful prosecutorial rebuttal, Tennessee's acceptance of counsel's choice was not objectively unreasonable. Cone therefore could not satisfy AEDPA's demanding standard for overturning the state court's Strickland ruling.

Dissents

Justice Stevens

Reasoning

Justice Stevens concluded that Cronic, rather than Strickland, should control because counsel's omissions collectively amounted to a complete failure to serve as an adversary at the penalty phase. In his view, failing to investigate mitigation, failing to present available mitigation, and declining to make any final plea for Cone's life were not isolated errors but failures of every fundamental advocacy function in a capital sentencing proceeding.

The available mitigation was substantial. Cone's counsel could have presented evidence of Cone's previously gentle character and academic success, his family relationships, his brother's drowning, the murder of his fiancée, his honorable military service and Bronze Star, his remorse, and a victim relative's letter expressing prayers for Cone. Stevens stressed that much of this evidence was either never developed or never placed before the jury as a basis for mercy.

Stevens rejected the majority's acceptance of counsel's supposed tactical explanations. Counsel's fear of cross-examination and of the prosecutor's skill did not justify abandoning the effort to save a client's life, especially because much of the potentially harmful information was already known to the jury. Nor could counsel properly rely on the rejection of Cone's insanity defense to conclude that the same evidence had no mitigating force at sentencing.

The dissent also considered evidence suggesting that counsel later suffered from a severe mental illness, including confused thinking, impaired memory, paranoia, and an eventual suicide. Although the evidence had not been presented in state court and its timing was uncertain, Stevens believed counsel's unusual and incoherent explanations at trial supported the inference that his failures were not the product of competent professional judgment.

In Stevens's view, requiring Cone to prove prejudice under Strickland was especially inappropriate because counsel's abdication left an incomplete record of the mitigation case that competent representation would have developed. When counsel effectively abandons advocacy at a capital sentencing, the resulting unreliability is sufficiently serious to justify Cronic's presumption of prejudice.