When do trial lapses void a death sentence?

At the center of Banks's appeal is the failure of prosecutors to disclose fully contacts and cooperation between prosecutors and two key trial witnesses, Charles Cook and Robert Farr. The issue of prior contact is potentially important in a trial because jurors are expected to consider whether witnesses have received benefits or faced threats from authorities.

Mr. Farr provided key testimony against Banks during the penalty phase of the trial, suggesting to jurors that Banks posed a threat of future dangerousness and thus should be executed. What neither Banks nor the jurors knew was that Farr was a paid police informant hired to help gather evidence against Banks. Nonetheless, during closing argument, the prosecutor told jurors that Farr had been "open and honest with you in every way."

Mr. Cook's testimony was even more crucial to the state's case. He told jurors that Banks had confessed to having killed someone, that Banks asked Cook to get rid of a gun that turned out to be the murder weapon, and that Banks asked Cook to dispose of the victim's car.

When asked on cross-examination by Banks's lawyer whether he had previously discussed his testimony with authorities, Cook said no. Prosecutors knew the statement was false: They had in their files a 74-page transcript of Cook's pretrial preparation with authorities.

Cook's denial of involvement with authorities prevented the defense, and ultimately the jury, from learning that the prosecutors intervened in a pending arson case involving Cook. According to court documents, one month prior to Cook's testimony in the Banks trial the prosecutors filed habitual-offender charges against Cook in the arson case, a move that substantially increased his potential prison time if convicted. But after Cook's testimony against Banks, the arson case was dismissed.

During closing arguments, the prosecutor vouched for Cook. "Charles Cook brought you absolute truth," he said. And he added that state prosecutors "didn't hide anything with regard to any of these witnesses."

In an unusual move, six former state and federal judges, including former FBI Director William Sessions, filed a friend-of-the-court brief urging the justices to overturn the Fifth Circuit decision.

John Gibbons, former chief judge of the Third US Circuit Court of Appeals, is among the six who filed the brief. He says the Fifth Circuit's decision in the Banks case "simply shocked us."

"These are not a bunch of left-wing kooks who are trying to undermine the social order in Texas," Mr. Gibbons says of his fellow judges filing the brief. "A lot of them, like me, were appointed by Republican presidents."

The brief says in part: "The court of appeals treatment of these claims poses a significant threat to the fairness of future proceedings." It adds, "The questions presented in this case are ... of vital importance to all persons who are committed to ensuring fairness and accuracy in the administration of the death penalty."

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