High-level rebuke to courtroom deceit

A Texas death-row inmate who once came within 10 minutes of execution has had his death sentence overturned. In a 7-to-2 decision, the US Supreme Court sent the case of Delma Banks back to an appeals court for further consideration.

Lawyers for Mr. Banks had said state prosecutors at his 1980 murder trial allowed key witnesses to lie to the jury that issued a death sentence. In addition, prosecutors failed to disclose full details about contacts between law-enforcement officials and the state's witnesses.

But even after the deception was uncovered, a federal appeals court said it didn't matter. Banks's scheduled March 12, 2003, execution was allowed to go forward and was stopped only at the last moment by the intervention of the Supreme Court.

The decision in Banks v. Dretke is important because it puts prosecutors and other law-enforcement officials on notice that they have an obligation to ensure that a potential death-penalty case is conducted truthfully and fairly.

"When police and prosecutors conceal significant exculpatory or impeaching material, it is ordinarily incumbent on the state to set the record straight," Justice Ruth Bader Ginsburg writes for the majority. "A rule declaring that 'prosecutor may hide, defendant must seek' is not tenable in a system constitutionally bound to accord defendants due process."

The decision also puts federal judges and appeals court judges on notice that it is their job to ensure such cases do not involve deception on the part of witnesses and prosecutors. When judges encounter such deception, the high court says, they must permit a defendant an opportunity to appeal his conviction and death sentence.

Two justices, Antonin Scalia and Clarence Thomas, dissented to part of the opinion. Both justices would have sent the case back to the appeals court, but on only one of the two grounds cited by the majority.

It took Banks and his lawyers 19 years to uncover the truth about what happened at his trial. Banks was convicted of the April 1980 murder of Richard Whitehead, who was found shot dead in a park near Nash, Texas.

The Fifth US Circuit Court of Appeals rejected Banks's appeal, saying that the deception by prosecutors and witnesses at trial, and the alleged ineffectiveness of Banks's defense counsel, did not rise to a level necessary to invalidate the death sentence.

At the center of Banks's appeal is the failure of prosecutors to fully disclose 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. Benefits or threats might cause jurors to question the veracity of the testimony. In a capital case, such judgments by even a single juror can mean the difference between life and death.