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AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
lii\@lii.law.cornell.edu
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The following decisions have just arrived via the LII's
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BANKS V. DRETKE (02-8286)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/02-8286.ZS.html
Argued December 8, 2003 -- Decided February 24, 2004
Opinion author: Ginsburg
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After police found a gun-shot corpse near Texarkana,
Texas, Deputy Sheriff Willie Huff learned that the decedent
had been seen with petitioner Banks three days earlier.
When a paid informant told Deputy Huff that Banks was
driving to Dallas to fetch a weapon, Deputy Huff followed
Banks to a residence there. On the return trip, police
stopped Banks's vehicle, found a handgun, and arrested the
car's occupants. Returning to the Dallas residence, Deputy
Huff encountered Charles Cook and recovered a second gun,
which Cook said Banks had left at the residence several days
earlier. On testing, the second gun proved to be the murder
weapon. Prior to Banks's trial, the State advised defense
counsel that, without necessity of motions, the State would
provide Banks with all discovery to which he was entitled.
Nevertheless, the State withheld evidence that would have
allowed Banks to discredit two essential prosecution
witnesses. At the trial's guilt phase, Cook testified,
inter alia, that Banks admitted "kill[ing a] white boy." On
cross-examination, Cook thrice denied talking to anyone
about his testimony. In fact, Deputy Huff and prosecutors
intensively coached Cook about his testimony during at least
one pretrial session. The prosecution allowed Cook's
misstatements to stand uncorrected. After Banks's capital
murder conviction, the penalty-phase jury found that Banks
would probably commit criminal acts of violence that would
constitute a continuing threat to society. One of the
State's two penalty-phase witnesses, Robert Farr, testified
that Banks had retrieved a gun from Dallas in order to
commit robberies. According to Farr, Banks had said he
would "take care of it" if trouble arose during those
crimes. Two defense witnesses impeached Farr, but were, in
turn, impeached. Banks testified, among other things, that,
although he had traveled to Dallas to obtain a gun, he had
no intent to participate in the robberies, which Farr alone
planned to commit. In summation, the prosecution suggested
that Banks had not traveled to Dallas only to supply Farr
with a weapon. Stressing Farr's testimony that Banks said
he would "take care" of trouble arising during the
robberies, the prosecution urged the jury to find Farr
credible. Farr's admission that he used narcotics, the
prosecution suggested, indicated that he had been open and
honest in every way. The State did not disclose that Farr
was the paid informant who told Deputy Huff about the Dallas
trip. The judge sentenced Banks to death.
Through Banks's direct appeal, the State continued to hold
secret Farr's and Cook's links to the police. In a 1992
state-court postconviction motion, Banks alleged for the
first time that the prosecution knowingly failed to turn
over exculpatory evidence that would have revealed Farr as a
police informant and Banks's arrest as a "set-up." Banks
also alleged that during the trial's guilt phase, the State
deliberately withheld information of a deal prosecutors made
with Cook, which would have been critical to the jury's
assessment of Cook's credibility. Banks asserted that the
State's actions violated Brady v. Maryland, 373 U.S. 83, 87,
which held that the prosecution's suppression of evidence
requested by and favorable to an accused violates due
process where the evidence is material to either guilt or
punishment, irrespective of the prosecution's good or bad
faith. The State denied Banks's allegations, and the state
postconviction court rejected his claims.
In 1996, Banks filed the instant federal habeas petition,
alleging, as relevant, that the State had withheld material
exculpatory evidence revealing Farr to be a police informant
and Banks' arrest as a "set-up." Banks further alleged that
the State had concealed Cook's incentive to testify in a
manner favorable to the prosecution. Banks attached
affidavits from Farr and Cook to a February 1999 motion
seeking discovery and an evidentiary hearing. Farr's
declaration stated that he had agreed to help Deputy Huff
with the murder investigation out of fear Huff would arrest
him on drug charges; that Huff had paid him $200; and that
Farr had "set [Banks] up" by convincing him to drive to
Dallas to retrieve Banks's gun. Cook recalled that he had
participated in practice sessions before the Banks trial at
which prosecutors told him he must either testify as they
wanted or spend the rest of his life in prison. In response
to the Magistrate Judge's disclosure order in the federal
habeas proceeding, the prosecution gave Banks a transcript
of a September 1980 pretrial interrogation of Cook by police
and prosecutors. This transcript provided compelling
evidence that Cook's testimony had been tutored, but did not
bear on whether Cook had a deal with the prosecution. At
the federal evidentiary hearing Huff acknowledged, for the
first time, that Farr was an informant paid for his
involvement in Banks's case. A Banks trial prosecutor
testified, however, that no deal had been offered to gain
Cook's testimony. The Magistrate Judge recommended a writ
of habeas corpus with respect to Banks's death sentence
based on, inter alia, the State's failure to disclose Farr's
informant status. The judge did not recommend disturbing
the guilt-phase verdict, concluding in this regard that
Banks had not properly pleaded a Brady claim based on the
September 1980 Cook interrogation transcript. The District
Court adopted the Magistrate Judge's report and rejected
Banks's argument that the Cook transcript claim be treated
as if raised in the pleadings, under Federal Rule of Civil
Procedure 15(b).
The Fifth Circuit reversed to the extent the District Court
had granted relief on Banks's Farr Brady claim. The Court
of Appeals recognized that, prior to federal habeas
proceedings, the prosecution had suppressed Farr's informant
status and his part in the Dallas trip. The Fifth Circuit
nonetheless concluded that Banks did not act diligently to
develop the facts underpinning his Farr Brady claim when he
pursued his 1992 state-court postconviction appl
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