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.

Banks' History

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 prosecution.

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 cross-examination; and

• 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 claim.

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 proceedings.

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 circum¬stances 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 representa¬tions 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 representa¬tion and was entitled to presume that all material evidence had in fact been disclosed.
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 precau¬tions" 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 proceed¬ings.

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 been issued.

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 material. 

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 proceed¬ings.

As noted, however, Justice Thomas would have still remanded Banks' case for a full airing of the Cook Brady claim.

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 criti¬cism 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 system."

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.