Yesterday, the Supreme Court released Cone v. Bell, found here. It is a habeas case reviewing the waiver and procedural barring of a Brady violation claim based on the complex procedural history of the state direct and collateral reviews. Cone has the distinction of this being his not first, nor second, but third published Supreme Court collateral review of his case. See Bell v. Cone, 543 U.S. 447 (2005); Bell v. Cone, 535 U.S. 685 (2002). What caught my attention in this case relates to some recent discussion regarding on CAAFlog regarding the duties of trial counsel. In Bell, the prosecutor did not turn over evidence that could be used to support the defense theory that Cone was heavily influenced by drugs at the time of the offenses – an argument the defense used both in findings and sentencing. Cone’s possible insanity and “chronic amphetamine psychosis” were the cornerstones of his defense. The Court does a nice job distinguishing the impact on findings (none) and on sentencing (maybe) and remands the case to determine what the impact on sentencing was. The suppressed evidence came to light ten years after trial when the defense obtained the prosecutor’s file. If the prosecutor had given the defense everything in the file, who knows if Cone could have avoided the death penalty. But there is a pretty good bet that the state of Tennessee wouldn’t be arguing about this case 27 years later.