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The Supreme Court Considers An Appalling Case Where Prosecutors Hid Evidence From the Death Row Defendant, and Knowingly Presented Perjured Testimony Against Him
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By Edward Lazarus
Dec. 11, 2003


Delma Banks, Jr., has been on Texas' death row for 24 years. He has been scheduled for execution fifteen different times. Most recently, he was strapped on a gurney awaiting the lethal injection that Texas uses to kill people. But the U.S. Supreme Court, with ten minutes to spare, stayed his execution.

If the Supreme Court's oral argument -- held this week, on December 8 -- is any indication, Banks is likely to win his case: His death sentence will be reversed. The Court may order that Banks receive a new trial. Or it may simply release him because of the appalling government misconduct that tainted his case.

More specifically, the prosecutors in his case hid important exculpatory evidence from Banks and his defense counsel. And they knowingly relied on false testimony from key witnesses.

Banks's case underlines what has, for a long time, been plain: America's system of capital punishment is broken, indeed, worse than broken: it is profoundly corrupting. And the federal judiciary will never be quite right until the Supreme Court recognizes this inescapable truth.

The Prosecutorial Misconduct at Banks's Trial

Here are some basic and pretty much undisputed facts about Banks' case. Banks -- who had no prior criminal record at all -- was charged with the murder of a 16-year-old boy. At Banks's trial, the police and prosecutors relied mainly on two witnesses, Charles Cook and Robert Farr.

Cook's original statement to the police regarding the murder was nonsensical and full of holes. And Cook himself was a twice-convicted felon who was awaiting trial on yet another felony charge. Nevertheless, police and prosecutors decided to present Cook as one of their star witnesses against Banks. And in exchange, they let him walk away from an arson charge. They also coached him carefully before he testified, in an attempt to get around the problems with his original statement to the police. (The transcript of the coaching, revealed later, ran to seventy-four pages.)

When Cook testified, he perjured himself at least twice. He denied receiving immunity on the arson charge. He also denied rehearsing his testimony with the prosecution.

Meanwhile, the prosecution sat silently by and knowingly watched him perjure himself. (That was not only a violation of professional ethics, but also a crime.) Worse yet, they argued that Cook's testimony should be of central importance to jurors in convicting Banks.

What about the second witness, Farr? At trial, the prosecution presented him as a neutral observer of events. In fact, he was a paid police informant -- and what he was paid for, was to set up Banks.

Prosecutors are constitutionally required to tell defense counsel about such arrangements because they cast a shadow over the paid witness's credibility. Nevertheless, Banks' prosecutors made no such disclosure.

Prosecutorial Misconduct Comes to Light, Yet Texas Won't Admit Error

Years ago, both Cook and Farr (as well as three other state witnesses) recanted significant parts of their trial testimony against Banks. Years ago, the misconduct of the Texas police and prosecutors came to light.

Indeed, years ago it became apparent that Texas's entire case against Banks was a tissue of lies -- and that there's a darn good chance Banks is innocent of the crime for which he was convicted and sentenced to die. Aside from discrediting the witnesses against Banks, his post-trial lawyers at the NAACP Legal Defense Fund have accumulated a pile of evidence showing that Banks could not have committed the murder - and, thus, has rotted on death row, thanks to a set of conniving state actors, for half a lifetime.

Under the circumstances, one might have thought that the powers-that-be in Texas might admit error in Banks' case. But in death penalty America, such confessions just don't happen. Absent irrefutable DNA evidence (and Banks' innocence can't be proven that way), and sometimes even then, states basically never admit mistakes.

As a result, throughout the appeals process, Texas' lawyers continued to stonewall. Texas has doggedly defended its conviction on the Kafkaesque procedural ground that Banks' lawyers discovered the hidden illegalities of the prosecution too late to raise them in court.

This kind of argument is appropriate in a civil case -- not a criminal case in which a probably innocent man's life is at stake, and where the illegalities are the fault of Texas's own employees. And ironically, even in a civil case, such an argument probably wouldn't work: Time periods are extended when the reason a plaintiff can't discover information, is that the defendant has concealed it.

The Federal Appellate Court Turns a Blind Eye to the Prosecutorial Misconduct

One might have thought that correcting this kind of injustice, especially in a capital case, is the paramount duty of a court. But here again, reality rudely intrudes.

Banks appealed to the U.S. Court of Appeals for the Fifth Circuit, which includes Texas, by far the most active death penalty state. The Fifth Circuit is notorious for turning a blind eye to serious problems in death penalty cases -- including the famous case in which the defense lawyer fell asleep during trial. And sadly, Banks' case was no different. The Fifth Circuit essentially accepted the State's bizarre claim that, even though it played hide and seek with the evidence of its own misconduct, Banks should have uncovered the State's unlawful actions sooner.

Moreover, the Circuit did its utmost to shield its decision from Supreme Court review by making it seem routine. The panel deciding Banks' case ordered its 70-plus page opinion to be designated as "unpublished" - a category that is supposed to be reserved for run-of-the-mill cases of little importance to anyone but the actual parties involved.

The idea that any death penalty decision could be seen by the court as so unimportant as to go unpublished is saddening. The idea that this one could be seen by the court as so unimportant as to go unpublished is shocking.

Why Our System Often Performs Particularly Poorly in Death Penalty Cases

Most readers may agree that what happened to Banks is unconscionable. And most may also agree that he deserves, at a minimum, a new trial. But I also believe something that is more controversial: The Banks case is not aberrant, but rather indicative of a larger truth about capital cases.

The Supreme Court has long recognized that, in theory, because "death is different," capital cases are deserving of extra scrutiny and the most careful adherence to procedure. But sadly, in practice, it seems that, far from matching this ideal, our system - from the police to the prosecutors to the courts - often performs at its very worst in capital cases.

Why? Probably because capital crimes are heinous, and the police in such cases are under enormous pressure to solve them. Therefore, they bend the rules to convert the main suspect into a charged defendant.

Prosecutors feel the heat as well. Capital cases can be career-makers for the politically ambitious lawyers who often fill this role. Prosecutors also often find themselves under significant pressure from the families of victims, and from the police investigators who are their long-term partners. These loyalties and responsibilities can make it very hard to say "no" when it comes to tilting the scales of justice towards conviction.

Finally, judges are human too. In states like Texas, where judges run for election, being perceived as soft on crime, especially in high profile capital cases, is an absolute no-no.

Federal judges, who have life tenure, are less susceptible to such careerist influences. But they, too, may not give capital cases the scrutiny they deserve. For instance, the Fifth Circuit is filled with very conservative jurists, many of whom are ideologically committed to letting states carry out executions with a minimum of federal oversight.

With the inundation of capital cases in this Circuit, Fifth Circuit judges could spend all their time correcting errors in capital cases. But instead their inclination towards deference has become a regrettably reflexive, unthinking tendency to give capital convictions and sentences a free pass.

These problems are endemic and intractable because they are the product of immutable human failings. Simply put, capital cases bring out the very worst in the system of criminal prosecution, and the whole apparatus of law becomes complicit in these failings.

The Supreme Court Is Likely to Vindicate Banks, And One Can Hope It Will Go Further

The Supreme Court, as I noted above, is likely to address Banks's case by, at a minimum, giving him a new trial. The real question, however, is whether it is willing to do more.

Will the Court content itself with continuing to tweaking the system at the margins, as it has for the last 20 years? Or will it use the Banks case (or another one soon) as an occasion for announcing openly and aggressively that it intends to return to the posture of death penalty skeptic that it abandoned a generation ago?

There are some hopeful signs. Just last year, the Court rebuked the Fifth Circuit for failing to scrutinize whether Texas prosecutors were trying to manufacture all-white juries in capital cases. It is likely to rebuke it even more harshly in the Banks case. And it may come to understand that the Fifth Circuit is not an outlier; similar instances of judicial willful blindness happen elsewhere, too.

The Banks oral argument, too, was marked by a rising level of indignation -- and not just on the part of the more liberal justices. Even more conservative Justices such as Justice Kennedy -- whose sense of righteousness is growing term by term -- made clear how appalled they were by what happened to Banks.

Still, I like to think of myself as a realist and, realistically, I know that the Supreme Court is nowhere close to tackling the death penalty systemically. Generally, it is conservative on criminal law issues. (For instance, last week, it voted unanimously that police need only wait 15 seconds before barging into your house.)

Let us hope that over time, the Supreme Court takes its precedents at their word, and decides that "death is different": While it is important that we have a fair "knock and announce" rule, it is of far more profound importance that we have a fair death penalty system.

As that great literary fugitive from justice, the Count of Monte Cristo, said long ago, all one can do is live and hope.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.


Death Penalty Issues
Truth in Justice