The Supreme Court lifted the death sentence for
a long-serving Texas inmate who claimed that prosecutors played
dirty and withheld evidence at his trial.
The court's action, announced Tuesday, came in
the case of a man who came within minutes of execution before the
body stepped in last year to stop it.
Delma Banks, one of the country's longest-serving
death row inmates, was sentenced to die for the 1980 killing of a
16-year-old former co-worker at a fast food restaurant.
The high court's 7-2 ruling means Banks can
continue to press his appeals in lower courts.
He claims that prosecutors lied and that his
original defense lawyer did not do enough to help him.
"When police or prosecutors conceal significant
exculpatory or impeaching material, we hold, it is ordinarily
incumbent on the state to set the record straight," Justice Ruth
Bader Ginsburg wrote for the high court majority.
Chief Justice William H. Rehnquist and Justices
John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David
H. Souter and Stephen Breyer fully agreed with Ginsburg.
"A rule declaring 'prosecutor may hide,
defendant must seek,' is not tenable in a system constitutionally
bound to accord defendants due process," Ginsburg said.
Justices Clarence Thomas and Antonin Scalia did
not agree that Banks got a raw deal from prosecutors, but still
would have sent his case back to a federal appeals court for
Texas prosecutors said Banks lured Richard
Whitehead to a quiet park and shot him three times to steal his
car. Banks maintains he is innocent, and that he was framed by
lying witnesses who were bought off by the state.
Banks' backers including former FBI Director
William Sessions, and a group of former judges say Banks' case is
a textbook example of the wrong way to run a capital trial.
Prosecutors knew of numerous serious legal
errors during Banks' trial, but said nothing, Banks' new lawyers
Banks was scheduled to die last March, and was
nine minutes away from execution when the Supreme Court stepped in
and agreed to hear his case.
Banks claims his original lawyer failed to
present evidence about Banks' family and background that might
have persuaded a jury to spare Banks a death sentence.
The case also raised questions about how to
weigh the severity of courtroom errors long after the fact.
Banks claims prosecutors improperly sat on
evidence that could have undermined the testimony of a key witness
for the state. The witness later recanted parts of his testimony.
Banks also claimed that prosecutors hid the fact that another
trial witness was a paid informant.
The facts of the Banks case are tangled and
unusual, meaning that Tuesday's ruling in his favor may have
little effect on other death row inmates or on future prosecutions.
Throughout 24 years of court fights, the
parents of Richard Whitehead have insisted on Banks' guilt while
Banks and his mother have insisted on his innocence.
The Whiteheads were waiting at a Texas prison
the night Banks was to die.
The case is Banks v. Dretke, 02-8286.
This article is part of a civilrights.org
series that examines civil rights-related decisions issued during
the Supreme Court's October 2003 Term.
Although the precedential impact is likely
minimal, the Supreme Court's ruling in Banks v. Dretke
underscores the Court's concern over prosecutorial abuses in
capital cases, as well as its reluctance to find habeas corpus
petitioners in procedural default of their remedies in cases where
the default was due in part to misconduct by the prosecution.
Delma Banks' death sentence was reversed on
February 24, 2004, following allegations that the prosecution had
withheld crucial information, which might have undermined the
credibility of two key prosecution witnesses, in both the guilt
and penalty phases of Banks' 1980 trial.
In September, 1980, Banks was tried for the
murder of 16-year-old Richard Whitehead in Bowie County, Texas.
Under the Texas capital murder scheme, Banks' trial was divided
into two phases: a guilt-innocence phase, which resulted in a
verdict of guilty, and a penalty phase, at which the jury issued
special verdicts on three supplemental issues, including the issue
of whether there was a probability that Banks would commit other
violent crimes in the future.
As a result of the jury's special verdicts,
Banks was sentenced to death.
Two of the key trial witnesses against Banks
were Charles Cook and Robert Farr. Cook testified that Banks had
asked him to dispose of Whitehead's car and a gun later determined
to have been the murder weapon, and also testified that Banks had
boasted of "kill[ing] a white boy."
Farr was called as a witness in the sentencing
phase of the trial and testified that Banks had later sought to
retrieve the gun from Cook in order to commit robberies with Farr.
On cross-examination, both Cook and Farr denied
having discussed their testimony with anyone in advance, and
specifically denied having reached a deal of any sort with
prosecutors in exchange for their testimony.
As later events would prove, the cross-examination
testimony of both Cook and Farr was false. Contrary to his
testimony, Cook had received extensive coaching in preparation for
the trial from law enforcement officials and prosecutors, and
would later claim that he had been threatened with prosecution if
he did not cooperate against Banks.
Farr was a professional police informer who had
been paid several hundred dollars for his role in the Banks
Based on these facts, Banks eventually sought
to overturn both his conviction and his death sentence on the
grounds that the state had violated his due process rights under
Brady v. Maryland by failing to disclose information which
would have impeached the testimony of Cook and Farr.
In particular, Banks would later argue that the
prosecution had violated his Brady rights by:
Failing to produce a 74-page transcript of
Cook's pre-trial interrogation (which would have revealed the
extensive role played by law enforcement officials in preparing
Cook's testimony), even after the prosecution had represented
that it would abide by an "open file" policy and turn over all
prosecution material to Banks without the need for discovery;
Failing to disclose to the defense Farr's
status as a paid informer;
Failing to correct the false testimony of Cook and Farr during
Referring to the cross-examination testimony
of Cook and Farr in its closing arguments, notwithstanding the
fact that the prosecution knew this testimony to be false.
While his petition for post-conviction relief
was pending, Banks uncovered significant new evidence to bolster
his claim: both Cook and Farr provided affidavits recanting their
earlier cross-examination testimony; while a discovery order
resulted in the production of the Cook interrogation transcript.
In addition, at an evidentiary hearing before a
federal magistrate, the investigating sheriff in the Whitehead
case admitted that Farr had been paid $200 for his services as an
informer against Banks.
Adopting the recommendation of the magistrate
judge, the district court granted the writ of habeas corpus with
respect to Banks' death sentence only, reasoning that Farr's
undisclosed informant status tainted the punishment hearing.
However, the district court denied the Cook
Brady claim on procedural grounds, ruling that the specific
issue of the interrogation transcript had not been properly
alleged in Banks' 1996 petition, and rejecting Banks' argument
that the Cook claim could be heard under the "implied consent"
exception of Federal Rule of Civil Procedure 15(b) because it had
been litigated without objection before the Magistrate Judge.
On appeal, the U.S. Court of Appeals for the
Fifth Circuit reversed the district court's judgment on the Farr
Brady claim, and affirmed the ruling on the Cook Brady
While agreeing that the state had impermissibly
suppressed information about Farr's role as an informer, the Fifth
Circuit held that the new evidence should have been developed by
Banks during the state habeas proceedings. Because Banks, in the
court's view, had failed to diligently investigate his Farr
Brady theories in 1992, he was procedurally barred from doing
so in 1996.
In any case, the Fifth Circuit alternatively
found that the suppression of Farr's informant status was not
material, since other witnesses corroborated Banks' violent
tendencies at the sentencing phase of the trial.
Finally, the Fifth Circuit affirmed the
district court's ruling on the Cook Brady claim on the
grounds that Rule 15(b) was inapplicable to federal habeas corpus
On March 12, 2003, just ten minutes before
Banks' scheduled execution, the Supreme Court issued a writ of
certiorari on the issues of whether the Fifth Circuit had properly
denied Banks' claims regarding the Farr and Cook testimony.
The Court also granted certiorari on an
ineffective-assistance-of-counsel claim, which was not addressed
in the Court's decision due to its disposition of the Farr and
Cook Brady issues.
Supreme Court Majority Opinion
Writing for a 7-2 majority, Justice Ruth Bader
Ginsburg ordered a new trial on the penalty phase of Banks'
conviction. With respect to the guilt phase of Banks' conviction,
the Court remanded the case to the lower courts for further
consideration of Banks' claims with respect to the Cook testimony.
The Supreme Court considered three main issues
in Banks: (1) whether Banks was precluded from introducing
evidence concerning Farr which was not discovered until the
federal habeas corpus hearing; (2) whether the failure to disclose
Farr's relationship with the police violated Banks' rights under
Brady v. Maryland; and (3) whether the lower courts
correctly denied a certificate of appealability on the grounds
that Rule 15(b) does not apply in habeas corpus cases.
Justice Ginsburg noted that the substantive
Brady issue and the question of whether the Brady
argument was defaulted raised overlapping factual issues.
Because Banks filed his federal habeas petition
in 1992, the issue of whether the Farr Brady claim was
procedurally defaulted was decided under the legal rules in place
prior to the 1996 enactment of the Anti-Terrorism and Effective
Death Penalty Act (AEDPA). Under that test, Banks would be excused
for his failure to develop a factual record for an in-state court
to the extent that he could demonstrate: (1) cause for his failure
and (2) actual prejudice resulting from that failure.
Similarly, in order to succeed on the merits of
his Brady claim, Banks would need to show that the
impeachment evidence regarding Farr had been suppressed, that it
was exculpatory, and that it was material.
The first two of these elements were not in
dispute, while the question of whether Farr's evidence was
"material" was identical the question of whether the suppression
resulted in "prejudice" for purposes of the procedural issue.
In its brief, the state argued that cause had
not been established since Banks could not show that he had been
diligent in his efforts to uncover Farr's perjury before 1996. In
particular, the state noted that Banks had failed to request
discovery or investigative assistance on the Farr issue during the
state habeas corpus proceedings, and had not sought to interview
Farr prior to the federal proceedings.
In addition, the circumŽstances of Banks
arrest "undoubtedly suggest[ed]" that Farr was an informant; as
such, Banks could not have reasonably relied on any of the
prosecution's representaŽtions to the contrary.
The Court rejected this argument. Because the
state had represented that it would follow an open file policy,
Banks could not be faulted for relying on that representaŽtion and
was entitled to presume that all material evidence had in fact
Based on its review of the facts of the case, the Court next
disagreed with the Fifth Circuit's conclusion that Farr's perjury
was immaterial to Banks' death sentence.
Noting that Banks had no prior criminal record,
the Court concluded that Farr's testimony was crucial to the
jury's finding that Banks was likely to commit violent acts in the
future. Because of the prosecution's misconduct, moreover, the
jury had been forced to consider that issue without the "customary,
truth-promoting precauŽtions" that generally accompany the
testimony of informants.
As a result, the Court concluded that there was
a reasonable probability that the prosecution's misconduct had
affected the outcome of the penalty phase of Banks' trial, and
Banks therefore had satisfied both the procedural and the
substantive elements of his Farr Brady claim.
Turning to the Cook Brady claim, the
Court found no support for the Fifth Circuit's conclusion that
Rule 15(b) was inapplicable to pre-AEDPA habeas corpus
On the merits of the Rule 15(b) claim, the
Court found that the Cook Brady claim was litigated
before the magistrate judge without objection, and that a
certificate of appealability on the Cook Brady claim should have
Supreme Court Dissenting Opinion
Joined by Justice Scalia, Justice Thomas
dissented in part from the Court's opinion.
While Justice Thomas agreed with the majority
that a certificate of appealability should have been issued on the
Cook Brady claim, Justice Thomas disagreed with the
Court's ruling that the Farr Brady violations were
Noting the horrific facts of the murder for
which Banks had been convicted, as well as other evidence of Banks'
violent tendencies that had been admitted, Justice Thomas opined
that the jury would likely have sentenced Banks to death even if
Farr's testimony had been excluded altogether.
Although he viewed the merits of the Farr
Brady claim as a "close call," Justice Thomas did not believe
that Banks had established as reasonable probability that the
misconduct affected the outcome of the death sentence proceedŽings.
As noted, however, Justice Thomas would have
still remanded Banks' case for a full airing of the Cook Brady
Reactions and Implications of Banks
The Banks decision received a moderate
amount of media attention, largely due to the dramatic
circumstances of the Banks' last-minute stay of execution by the
Supreme Court. Banks' ultimate fate, however, was still in doubt
months after the decision, as Texas officials publicly vowed to
seek reimposition of Banks' death sentence upon retrial.
In the meantime, the Supreme Court's decision
prompted a flurry of editorial critiŽcism of the Texas criminal
justice system. The Banks decision was hailed by the
Washington Post as a "well-deserved rebuke to the Texas
justice system" and by the Fort Worth Star-Telegram as "another
knock against the credibility and reliability of the death penalty
Other papers demanded more immediate action
against prosecutorial misconduct in the wake of the Banks
case. An editorial in the Austin American-Statesman asked,
"will Texas make a practice of disciplining dishonest prosecutors?"
and called for greater investigation of "rogue prosecutors,"
including the surviving prosecutors from the original Banks trial,
while the Dallas Morning News cited the Banks
decision in a call for a moratorium on Texas executions.
Delma Banks Jr.