Banks, Delma v. Cockrell, Dir., Texas Dept. of Corrections

Questions presented: 1) Did the 5th Circuit err in rejecting Banks' claim under Brady v. Maryland that the prosecution suppressed material witness impeachment evidence that prejudiced him in the penalty phase of his trial, on the grounds that: (a) the evidence supporting the claim was procedurally defaulted, notwithstanding the fact that there was no reasonable basis for concluding that counsel for Banks could have discovered the suppressed evidence prior to or during that trial or state post-conviction proceedings; and (b) the suppressed evidence was immaterial to Banks' death sentence, where the panel neglected to consider that the trial prosecutors viewed the evidence to be of "utmost importance" to showing a capital sentence was appropriate? (2) Did the 5th Circuit act contrary to Strickland v. Washington, 466 U.S. 668 (1984) and Williams v. Taylor, 529 U.S. 362 (2000), when it weighed each item of mitigating evidence separately and concluded that no single category would have brought a different result at sentencing without weighing the impact of the evidence collectively? (3) Did the 5th Circuit act contrary to Harris v. Nelsen, 394 U.S. 286 (1969) and Withrow v. Williams, 507 U.S. 680 (1993) in holding that Fed. R. Civ. P. 15(b) does not apply to habeas proceedings because "evidentiary hearings" in those proceedings are not similar to civil trials?

BY: LIBBY SANDER, MEDILL NEWS SERVICE

When the news came, it turned out Delma Banks' last supper on Death Row wasn't so final after all.

By March 12, 2003, Banks' epic legal battle with the state of Texas was drawing to a close. It was the day that would have shut the book on 23 years of petitions and appeals - and on Banks' life. But 10 minutes before being strapped to the gurney, Banks learned that the U.S. Supreme Court had granted him a temporary stay of execution while it considered his appeal.

On April 21, the Court said it will address the alleged suppression of evidence by prosecutors and the ineffectiveness of Banks' legal counsel. It said it would not review an additional claim by Banks, who is African-American, that the all-white jury that convicted him of capital murder was racially biased.

The high court's review of this case came after 23 years of legal proceedings that included one direct appeal, three state habeas petitions and a federal petition with an evidentiary hearing. In August 2002, the 5th Circuit Court of Appeals overturned a district court judge's decision to grant Banks a new trial in light of new evidence that was never presented at the first trial. The appeals court reversed and said Banks had not proven that the jury would have reached a different verdict if he had had adequate legal representation.

So Banks waited on Death Row, convicted for the 1980 murder of a 16-year-old boy in East Texas, while his attorneys argue that the case embodies fundamental weaknesses of capital punishment.

"The questions presented in Mr. Banks' petition directly implicate the integrity of the administration of the death penalty in this country," wrote four former federal judges and prosecutors - including former FBI director William Sessions - in an amicus brief.

Richard Whitehead was found dead the morning of Monday, April 14, 1980 at an East Texas park just outside of Texarkana, which sits on the Texas-Arkansas border. A nearby resident told police he was awakened around 4 a.m. by two gunshots. Investigators determined that Whitehead was last seen alive on the night of Friday, April 11, with a 21-year-old African-American man later identified as Delma Banks. The two young men worked together at a local steakhouse. Police surveillance over the next week did not yield any incriminating evidence of Banks, who at the time had no prior criminal record.

The lead investigator contacted a man named Robert Farr and offered to pay him $200 to locate Banks' gun. Farr subsequently contacted Banks and told him that he needed a pistol to commit some robberies. Banks refused repeatedly, but Farr persisted. Banks agreed, but said they would have to travel to Dallas - a three-hour trip by car - to get his gun.

On April 23, nine days after Whitehead's body was discovered, Banks traveled to Dallas with Farr and another man, Vetrano Jefferson, the brother of Banks' common-law wife. Bowie and Dallas County law enforcement monitored the trip. The threesome traveled in Farr's car, with Banks at the wheel, to the South Dallas home of Charles Cook. Banks went to the door of the house and soon returned to the car. The three men drove away, and were quickly apprehended by the authorities. Police seized a .22 caliber pistol that was later determined not to be the murder weapon. Banks was arrested; Farr and Jefferson were released the following morning.

Police returned to Cook's home the next day and interviewed him at length. He said Banks came to stay with him on April 12, had admitted to killing a "white boy," and had left the vehicle he had arrived in (that closely resembled descriptions of the victim's car) along with a .25 caliber pistol for Cook to get rid of. Police retrieved the weapon from a neighbor. Forensics experts concluded it was the murder weapon.

Banks was indicted for capital murder on May 21, 1980. The day before, at an examining trial, the lead investigator summarized the state's case and the unfolding of events that preceded Banks' arrest. He did not mention that police paid Farr $200 to obtain Banks' weapon. He also did not state that two witnesses had indicated that Whitehead's car - the one Banks allegedly drove to Dallas the day after the murder - had major mechanical problems that would have made it unlikely to survive the 180-mile trip.

In the months preceding Banks' trial, Bowie County prosecutors told Banks' court-appointed counsel, Lynn Cooksey, a former District Attorney for the county, that they would turn over any relevant evidence. They assured Cooksey there was no need for him to file for discovery, a pre-trial motion that requires prosecutors to disclose any information that could prove the innocence of the defendant.

Prosecutors did not disclose that Farr was a paid informant who accepted the $200 in exchange for a reduction in drug charges against him.

Cooksey claimed not to have seen the witness list at all, which had been provided to him by prosecutors, as required. He did not object when prosecutors peremptorily struck all qualified black potential jurors. He did not investigate Banks' social history or school records. He did not view crime scene photographs or the ballistics report. He did not investigate the reports from the medical examiner's office to confirm the approximate time of death, which would have shown that it was highly unlikely that Whitehead was killed in the early hours of April 12 and that more likely Whitehead had been shot many hours later.

Banks' trial lasted one day. Cooksey presented no evidence or witnesses. On Sept. 30, 1980, at a few minutes past 11 p.m., the jury found Banks guilty of capital murder.

After the guilty verdict, Banks' mother fainted and was taken to the hospital. Cooksey called her late that night and told her to start lining up witnesses who could testify to Banks' character at the penalty phase. Mrs. Banks checked herself out of the hospital and started making phone calls into the early hours of the morning.

The next day, the state relied heavily on the testimony of Farr and Jefferson in convincing the jury that Banks deserved the death penalty. To impose a capital sentence, prosecutors had to prove that Banks posed future danger to society and was incapable of being a peaceful prisoner. Banks testified and said he was innocent. Farr testified that Banks said he wanted to reclaim his gun in Dallas to commit armed robberies and to take care of any trouble that might arise during one. Jefferson testified that a week before the murder, Banks had struck him with a pistol and threatened to kill him.

The few witnesses Mrs. Banks was able to round up testified that Banks was a quiet, churchgoing young man. They had not been interviewed by Cooksey before testifying.

Banks did present two witnesses who questioned the credibility of Farr's testimony, stating that Farr frequently filled false prescriptions at local pharmacies, and that he had served as a police informant in the state before. Prosecutors assured the jury that Farr's testimony was truthful and that it was "of the utmost significance" to the case. On October 1, 1980, the jury imposed the death penalty.

If a person is convicted in state court and believes that his conviction sentence does not comply with his constitutional rights, he has the opportunity to apply for habeas relief to a federal judge. The judge then determines whether the conviction sentence passes constitutional muster.

Banks filed three post-conviction habeas petitions with the state court to assert that lawyers on both sides of his case had not done their jobs, according to George Kendall of the NAACP Legal Defense and Education Fund, which took on Banks' case in 1992. None of the petitions received any attention.

The first two petitions questioned whether the evidence determining Banks' "future dangerousness" (a critical element in imposing the death penalty) was sufficient. "Farr offered uniquely damaging evidence," Banks stated in his petition for writ of certiorari. "He testified that Mr. Banks was going to Dallas to obtain a weapon so that Banks could commit armed robberies and, if necessary, kill reluctant victims. This testimony was both the heart and soul of the state's case for the death penalty and was uncorroborated."

The third state petition made the same claims as the petition to the U.S. Supreme Court would ultimately make. It claimed that Banks had ineffective legal counsel; that blacks had been purposefully struck from the jury pool; that prosecutors deliberately withheld important evidence on their two key witnesses, Farr and Cook; and again, that evidence supporting "future dangerousness" was insufficient.

It wasn't until 1996, when Banks' lawyers were able to track down Robert Farr - who had moved to California and was living there in poor health - that the case began to pick up speed. Farr admitted to being a paid informant.

"I told [the deputy] that he would have to pay me money right away for my help on the case," Farr said in a sworn affidavit. "I think altogether he gave me about $200 for helping him. He paid me some of the money before I set Delma up. He paid me the rest after Delma was arrested and charged with murder. He said that the case was worth a lot more than that to him."

And Cook - who had told the jury in 1980 that Banks had arrived on his doorstep the morning of April 12 and admitted to killing a "white boy" the night before - said large parts of his testimony were false. He said he had given his testimony under pressure from authorities, who said they would drop a pending arson charge in exchange for favorable testimony.

Banks filed a federal habeas petition after contacting Farr and Cook. At a federal evidentiary hearing, Banks' attorneys were able to get sworn testimony from a former prosecutor and police officer that Farr was a paid informant. Nearly 19 years after Banks' conviction, a Bowie County District Attorney submitted a 74-page transcript of a September 1980 pretrial interview between investigators and Cook. And Vetrano Jefferson testified that Farr was the one who initiated conversations with Banks about getting a gun to commit armed robberies.

The magistrate judge and the federal district judge both ruled in Banks' favor, concluding that the jury probably would not have sentenced Banks to death if effective lawyering by Cooksey had presented the jury with all the facts.

A 5th Circuit Court of Appeals panel unanimously reversed, though the judges acknowledged that Banks had received deficient legal representation. "Obviously, to determine whether expert assistance was needed, counsel needed to know the circumstances of Banks' past. For example, was he abused; did he have mental deficiencies? Failure to ask these and similar questions of his parents and others, a failure the State does not dispute, falls below an objective standard of reasonableness," the panel wrote in an unpublished opinion on Aug. 20, 2002.

But in evaluating whether the jury would have refrained from imposing a death sentence, the appeals court rejected the lower court's conclusions. Instead, it considered separately each piece of evidence that was omitted from the trial and concluded that it was unlikely that any one piece of evidence would have changed the outcome of the verdict.

In addition, the appeals court maintained that at the sentencing phase, Banks' testimony supported Farr's statements. "Farr's paid informant status?and the fact that much of his testimony concerning the trip to Dallas to retrieve Banks' pistol was corroborated, does not [original emphasis] present a reasonable probability that the jury would have found differently concerning Banks' future dangerousness," the appeals court said.

In their brief, the former federal judges and prosecutors urged the U.S. Supreme Court to clarify how a claim of ineffective counsel should be reviewed. They said an item-by-item review of each piece of evidence, as the 5th Circuit did, is insufficient. "A deficient performance by counsel in a capital case?must be evaluated instead through a fair comparison of what the jury actually heard with the totality of what it would have heard had counsel performed in a competent manner," they said.

Earlier in 2003, the Supreme Court handed down a decision on another Texas death penalty case, Miller-El v. Cockrell. In an 8-1 decision, the justices said the 5th Circuit set too high a bar in its requirements for habeas appeals.

James Elliot, a Bowie County assistant district attorney and an original prosecutor in Banks' case, told reporters shortly after the Court accepted the case that if the high court remands the case for a new sentencing, he will not offer a plea bargain to Banks. "They are going to face another trial," he said. Banks refused to sign a confession in exchange for a life sentence years ago.

On Feb. 24, 2004, the Court sided with Banks, holding 7-2 that prosecutors had violated his constitutional rights by withholding information. In writing the opinion for the Court, Justice Ruth Bader Ginsburg criticized Texas officials for continuing "to hold secret'' the information throughout years of appeals in both state and federal courts.

"Prosecutors' dishonest conduct or unwarranted concealment should attract no judicial approbation,'' Ginsburg wrote.

Justices Clarence Thomas and Antonin Scalia dissented, calling it "a very close question" whether the nondisclosure of Farr's informant status was prejudicial.

However, by a vote of 9-0, with Thomas and Scalia joining, the full Court also ruled that Banks should be allowed to appeal his murder conviction, because prosecutors may have improperly withheld information during the phase of the trial in which jurors found him guilty of murder.

The rulings allow Banks to be taken off death row and to have the first chance in more than 20 years to contest his original murder conviction.