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Court to hear case that will affect death penalty

In graphic detail, prosecutors told jurors in 1982 how Gary Cone beat to death an elderly Tennessee couple after he robbed a jewelry store. The only reasonable punishment, they said, was to sentence Cone to death.

Then came the court-appointed defense lawyer's turn to plead for his client's life. He rose from his chair next to Cone and spoke three words:

"The defense rests."

Jurors didn't take long rendering the punishment: death.

On Monday, the U.S. Supreme Court took up the 20-year-old case to review two constitutionally significant issues: adequate legal representation for a defendant and the power of federal judges to intervene in state criminal matters. The court isn't expected to rule on it until summer.

Legal analysts say the Cone appeal could affect death penalty appeals across the country and significantly alter the way capital punishment is handled at trial.

And, they say, it will gauge whether the justices consider the appearance of fairness more important in capital cases than efficiency and procedure.

Despite its legal importance, the Cone case has received little public attention. Lawyers say the case has been overshadowed by an appeal that focuses on whether mentally retarded people should be eligible for the death penalty.

"Every year, the Supreme Court has what's called "sleeper cases' that few people have heard about but that have huge potential consequences," said Ronald Smith, chairman of the American Bar Association's Criminal Justice Section. "This is one of those cases because its issues aren't sexy, but its constitutional and practical impact could be huge."

The justices are examining the Cone matter on two grounds:

Was the defense attorney's lack of advocacy on behalf of his client so prejudicial to Cone that it violated his constitutional right to the effective assistance of counsel?

Did the federal appeals court that threw out his death sentence last year overstep its authority?

Civil libertarians hope the Supreme Court uses the case to emphasize the requirement that lawyers aggressively defend their clients during trial and the need for a strong, independent federal judiciary to look over the shoulder of their state judicial counterparts.

Prosecutors, by contrast, want the justices to slap the hands of federal judges who are quick to reverse death sentences if they believe the defense attorneys could have done a better job. A ruling in that direction could effectively slam the door on hundreds of such appeals.

Court considers case involving judge sentences

WASHINGTON _ The Supreme Court unleashed a potential revolution in criminal sentencing two years ago when it ruled that only the jury, and not a judge, could find a defendant eligible for a sentence above the range that the legislature had specified.

The decision, Apprendi vs. New Jersey, not only invalidated New Jersey's hate crime law but called into question the basic sentencing system that the federal government and many states use in which the jury determines guilt but judges make the crucial factual findings _ the quantity of drugs, for example _ that determine the sentence.

Now the justices have to decide what happens next. The proceeding in the courtroom on Monday morning was labeled an argument, and technically it was. But in contrast to the typical argument, an often dizzying hour in which the justices interrupt one another as often as they hurl questions at the lawyers, this hour more resembled a high-level seminar in which the justices and the lawyers were engaged with utmost seriousness in figuring out what the Apprendi revolution meant and how far it would go.

At issue was a seven-year federal sentence that a pawnbroker in Albemarle, N.C., got for brandishing a gun while he sold 4 ounces of marijuana to undercover officers. Carrying a gun during a drug transaction violates a federal law and yields a sentence of five years to life in prison. "Brandishing" a gun brings a mandatory minimum sentence of seven years.

The federal indictment charged William Harris only with carrying a gun, a 9-mm handgun that he wore, unconcealed, in a holster. The judge made the finding that he had brandished the weapon, after the jury found Harris guilty.

On appeal to the 4th U.S. Circuit Court of Appeals, in Richmond, Va., Harris argued that the judge's role violated the rule of the Apprendi decision. But the 4th Circuit, along with every other federal appeals court to consider the issue, held that because the maximum sentence was life in prison, the seven-year minimum was within the statutory range and did not violate the Apprendi principle.

His Supreme Court appeal, therefore raises the important question that the Apprendi decision left hanging: If a judicial finding cannot be allowed to pierce the sentencing ceiling, can it logically be permitted to raise the sentencing floor, through the imposition of a mandatory minimum sentence?

Ordinarily, the Supreme Court would not even agree to hear a case in which all the lower courts were in agreement, particularly on the government's side. Simply by taking this case, and two other Apprendi-related cases that it will hear next month, the court was sending a signal on the importance of the issue.

Harris' lawyer, William Ingram, a federal public defender from Greensboro, N.C., told the court that the logic was inescapable. "Mandatory minimums add additional deprivations of liberty" based on facts "that should be found by a jury beyond a reasonable doubt," Ingram said. "The constitutional underpinning of Apprendi was that any fact that increases the sentencing range" had to be found by the jury, whether it raised the ceiling or the floor, he added.

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