In a recent opinion, Judge Gilbert Merritt of the 6th U.S. Circuit Court of Appeals says Tennessee's system to review death penalty cases is "completely broken," a point he illustrates in accusing former Attorney General Paul Summers of deliberately falsifying the record in a capital case.
The case is that of Gary Bradford Cone, a Memphis man sentenced to death in 1982 for murdering an elderly couple whose home he broke into while eluding police after a robbery. When the victims, ages 93 and 79, refused to cooperate, he killed them.
In a 2-1 decision issued June 19, the 6th Circuit denied Cone's latest appeal, which includes a claim that prosecutors presented false arguments to the jury. In his dissent, however, Merritt says the state deliberately concealed mitigating evidence related to Cone's drug addiction and mental illness he suffered as a result of serious post-traumatic stress disorder stemming from combat in Vietnam: "If one or more jurors had believed that Cone was suffering from a post-traumatic combat stress mental illness and drug addiction—instead of believing it was just 'baloney,' as the trial prosecutor and the Attorney General's office insist—it is unlikely that the jury would have reached a verdict of death."
The Tennessee Court of Criminal Appeals previously denied this and other claims raised by Cone in 1995, saying the evidentiary matter had been "previously determined" in state court, and further chastising his lawyers for their "perpetual disrespect for the finality of convictions." The opinion was authored by then-judge Paul Summers, who went on to serve as attorney general from 1999-2006.
As attorney general, Summers reportedly altered his argument when the Cone case re-emerged in federal court, this time saying the evidentiary claims could not be argued because they "were simply never raised in the state court." Summers, who stepped down as AG in October, now practices law at a private Nashville firm.
Judge Merritt points out that, of course, both arguments cannot be true, suggesting Summers is "deliberately falsifying the procedural record in this case." He then criticizes his colleagues for their unwillingness to correct past judicial mistakes, particularly when a man's life is at stake. "The majority seems totally unconcerned that the Tennessee Attorney General's office has completely falsified the procedural record in the case by asserting that the [evidentiary] claims were both 'never raised' and 'previously determined.' "