When do trial lapses void a death sentence?

Supreme Court considers what amount of faulty prosecuting and bad defense lawyering violates standards of fairness.

It took Delma Banks and his lawyers 19 years to discover the truth.

State prosecutors at his 1980 murder trial allowed two key witnesses to lie to the jury that sentenced Mr. Banks to death.

But even after the deception was uncovered, a federal appeals court said it didn't matter.

On March 12, 2003, Texas corrections officers strapped Banks to a gurney and prepared a lethal injection. Then, with 10 minutes to go, word of a stay came from the US Supreme Court.

Monday, the justices take up the Banks case to determine whether the misconduct of prosecutors and the ineffectiveness of Banks's own lawyer were so significant as to require the invalidation of his death sentence. The case arises at a time of heightened national debate over the propriety of capital punishment, with 111 death-row inmates having successfully overturned their death sentences since 1973.

The Banks case is only the most recent capital-punishment case to attract the attention of the nation's highest court. Several justices have spoken out about what they view as shoddy procedures used in state death-penalty cases, and a series of rulings in recent years have set higher standards of conduct not only for prosecutors but for defense counsel as well.

At the same time, the court has upheld congressional efforts to speed up the death-penalty process by sharply restricting the use of multiple habeas corpus appeals by death-row inmates.

The Banks case is not about the constitutionality of capital punishment. Rather, the issue before the court is whether Banks's trial was conducted in accord with constitutional standards of fundamental fairness. "I don't think anyone who is fair-minded can look at the trial he got and say that is the way we want trials to be conducted in this country," says Miriam Gohara of the NAACP Legal Defense and Educational Fund, which is representing Banks in his appeal.

Lawyers with the Texas Attorney General's office disagree. They say that even if the jury had heard all the information withheld by prosecutors and state witnesses, it would have still returned a guilty verdict and a death sentence.

In addition, they say Banks's appeals lawyers made a major mistake by going to federal court rather than first litigating the issues in state court. "This case is about federalism," says Gena Bunn, Texas' top capital-punishment appeals lawyer, in her brief to the court. "The state courts were never afforded a fair opportunity to adjudicate [Banks's] claims based on the evidence later presented in federal court."

The Fifth US Circuit Court of Appeals rejected Banks's appeal last year, citing those same federalism grounds. The court also ruled that the deceptive statements by prosecutors and witnesses at Banks's trial, and the alleged ineffectiveness of Banks's counsel, did not rise to a level necessary to invalidate the death sentence.

Banks was convicted of the 1980 murder of Richard Whitehead, who was found shot dead in a park near Nash, Texas.

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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