Banks v. Dretke
Banks v. Dretke, No. 02-8286. Justice Ginsburg wrote the majority opinion, which the Chief Justice and Justices Stevens, O'Connor, Kennedy, Souter, and Breyer joined in whole and Justices Scalia and Thomas joined in part. Justice Thomas wrote an opinion concurring in part and dissenting in part, which Justice Scalia joined.

Capital cases produce an uusual amount of litigation, both during the trial and direct appeal and during collateral proceedings. This case addressed a habeas challenge to both the death sentence and conviction of the petitioner in state court. The prosecution promised before trial that it would provide all of the discovery that the defense was entitled to without litigation. In reality, the prosecution failed to turn over several transcripts that would have provided substantial impeachment value to the defense; moreover, the prosecution failed to take action when its witnesses perjured themselves, with the defense unable to demonstrate the perjury because of the insufficient discovery. Unfortunately, none of this came out until many years later on the petitioner's habeas petition in federal court. The district court concluded that the evidence warranted a writ of habeas corpus, but the Fifth Circuit thought that the danger of a wrongful execution was outweighed by the importance of procedural rules and reversed. The Supreme Court granted certiorari, reversed the decision to not invalidate the death sentence, and remanded for further proceedings on the issue of whether the conviction should be invalidated.

The Majority Opinion

Justice Ginsburg began by reciting the facts and procedural history. In 1980, a 16 year old boy was killed by three gunshots. Attention quickly focused on 21 year old Banks, who had been walking with the victim prior to his death. Following a call from a confidential informant, the investigating officers followed Banks to Dallas and stopped him on his return trip. They found a gun in his car and arrested the occupants. Returning to the the residence that Banks had visited, they spoke with another person and recovered a second gun, which forensic evidence showed to be the murder weapon.

During preliminary proceedings, Banks's defense counsel asked for the identity of the informant. The prosecution refused to answer but later stated that it would provide all legitimate discovery without requiring litigation. At Banks's trial, witnesses told of seeing Banks with the victim and then hearing gunshots. Cook, the witness from whom the police recovered the murder weapon, testified that Banks had stayed with him for several days after the murder, arriving with blood on his leg. Cook quoted Banks as saying the blood was from when he "kill[ed] the white boy for the hell of it." Cook also said that Banks confessed to stealing the victim's car. Cook testified that after a few days, Banks left by bus, leaving his gun behind, and that he then returned on the day of his arrest to request the return of the gun.

On cross, Cook denied having received any coaching prior to his testimony. In truth, however, Cook had at least one intensive coaching session where the lead investigator and prosecutors worked with him on developing his testimony. Far from correcting the perjury, the prosecutor argued in summation that Cook had told the jury "absolute truth."

The prosecution's other key witness, Farr, testified that he traveled with Banks to Dallas to retrieve Banks's gun. The defense asked whether Farr had been paid by the police for information, but Farr perjured himself by testifying that he had not and that he hadn't talked to anyone about the case until a few days before trial. The state did not correct this perjury. In reality, Farr was the paid, confidential informant who told the police about Banks's trip to recover the gun. He was afraid that if he didn't cooperate, the investigators would pursue drug charges against him. When the police asked him to help recover the murder weapon, he demanded money, and was paid $200 to, in his own words, "set [Banks] up." He told Banks that he wanted the gun to rob a pharmacy for drugs, and Banks agreed to supply him with a gun.

The defense presented no evidence and the jury convicted Banks of murder in the course of a robbery. Under Texas law, that is a death-eligible crime, so the jury proceeded to consider the penalty, after considering further evidence. The critical question was whether there was proof beyond a reasonable doubt that Banks would commit further crimes of violence. The state presented two witnesses on that question. The first testified to an incident where Banks struck him in the head with a pistol and threatened to kill him. The second witness was Farr, who testified that Banks had said that he would "take care of any trouble" in the armed robberies they were ostensibly planning. Again, the prosecution remained silent when Farr perjured himself on cross, denying that he told the police about the trip to Dallas and denied that he was concerned about possible drug charges against him.

The defense impeached Farr, but only with witnesses who were themselves impeached. In particular, a former police officer testified that he had previously used Farr as a paid informant and had found him unreliable. The prosecution, however, elicited an admission that the officer had a pending application for employment with the defense attorney's private investigator.

Banks's family and friends testified that he was a "respectful, churchgoing young man." He also took the stand, testifying that he had never been convicted of a felony. He admitted having struck the first prosecution witness and travelling with Farr to get a gun, but he denied ever having planned on participating in the robberies, a denial that Farr's admissions long after trial proved to be true.

In summation, the prosecutor argued that Banks had lied, claiming that he wouldn't have travelled 200 miles to supply someone else with a gun for a crime that he wasn't involved with. He relied on Farr's testimony, stating that the "taking care of trouble" comment demonstrated a willingness to commit further murders, and that Farr had been completely open and honest.

The jury sentenced Banks to death. The Texas Court of Criminal Appeals, the state court of last resort for criminal matters, affirmed the conviction and sentence on direct appeal in 1984. After two irrelevant state motions for postconviction relief, Banks brought a claim that the prosecution had withheld evidence that Farr was a police informant and information about the deals that the prosecution cut with Cook to elicit his testimony. The state denied withholding any information and the state court denied postconviction relief. Banks then brought the current claim in federal court. Eventually, Banks was able to procure affidavits from both Farr and Cook in which they admitted their lies. The magistrate judge ordered discovery and an evidentiary hearing. The discovery resulted in the disclosure of a 74 page transcript of a coaching session between Cook and the police. While the transcript did not include evidence of a deal, it did include numerous examples of the police coaching Cook on how to solve "problems" with his testimony. A prosecutor denied that Cook had ever been offered a deal in exchange for his testimony. The police investigator also testified and admitted for the first time that Farr had been a paid informant of his.

The magistrate judge recommended granting habeas relief as to the sentence, but not as to the conviction, based on the government's suppression of Brady materials about Farr and the "dismal" performance of Banks's trial counsel during the penalty phase. The district court agreed and rejected Banks's arguments based on the suppression of the Cook transcript on the procedural ground that Banks's habeas petition had not raised the issue. The petition did not, of course, because the state did not divulge the transcript until 1999, three years after Banks filed his petition. The Fifth Circuit reversed the writ of habeas corpus on the death sentence on procedural grounds, in an unpublished per curiam opinion. The Fifth Circuit held that even on the Farr evidence, relief was barred by Banks's failure to exercise sufficient diligence in developing the evidence for his state court proceeding. The court also concluded that the evidence about Farr was not material, because Banks had already presented evidence impeaching him as a police informant. The Supreme Court stayed the execution and granted certiorari.

Justice Ginsburg began by noting that the Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply to this case because Banks's claims predate its passage. AEDPA substantially raises the procedural barriers to habeas relief. The majority opinion then considered the Farr claim and the Cook claim separately. Beginning with Farr, the Court started with whether Banks had, as required, exhausted his state court options for remedies. Under Brady, the prosecution cannot constitutionally withhold material evidence that tends to reduce a defendant's culpability, regardless of good faith. In order to prevail on a Brady claim, a defendant must show that the evidence is favorable, was suppressed by the prosecution, and that prejudice ensued. In order to bring a habeas claim that was not fully raised in state court, an inmate must show good cause for not having presented the evidence there and prejudice. When the claim is of a Brady violation, the second two prongs of the Brady test parallel the "cause and prejudice" requirements. Because the fact that a witness was a paid informant is favorable to the defense, as it tends to impeach the witness's testimony, the only questions were whether Banks demonstrated sufficient "cause and prejudice."

As to cause, a defendant shows cause for failing to raise a Brady issue when the prosecution encourages the defense to rely on its "open file" policy, fails to disclose evidence, and denies any omissions from disclosure in the state habeas proceeding. Because Banks's case tracks those three requirements precisely, he demonstrated cause. Furthermore, the majority noted, his case was even more extreme than required because of the failure of the prosecution to correct perjurious testimony at trial. The Court rejected any requirement that Banks should have investigated further by locating Farr and eliciting testimony from him, because the defense can reasonably rely on assurances from the prosecution. Justice Ginsburg scorned the notion that the prosecution may lie and the defense must demonstrate those lies in a system based on defendants' due process rights. The state also argued that Banks should have sought investigative assistance in the state court proceedings, but Justice Ginsburg dismissed this as a simple variation of the first issue. Besides, a state court would be unlikely to provide any assistance based solely on the defense's allegations when contradicted by ongoing false denials by the prosecution. The majority also rejected any reliance on precedents that allow the police to conceal an informant's identity, because those precedents do not apply when the informant is called as a witness.

The majority then turned to the question of whether the evidence was "material." The question under the relevant precedent is whether the new evidence puts the whole case in a different light, undermining confidence in the verdict. The question is only whether the defendant showed a reasonable probability of a different result. Farr's evidence was central to the penalty phase. In particular, the prosecution relied in its summation on Farr's testimony that Banks was willing to participate in another crime, not on his admission that he helded supply Farr with a gun. Because Banks had no prior record, Farr's testimony was essential to proving the propensity issue for the death penalty. The Court distinguished prior cases where the evidence had been amply corroborated and was mostly cumulative. Here, the evidence was central to the government's penalty phase case and the concealed evidence showing that the witness was a paid informant, in fear of conviction for his own crimes, and willing to perjure himself in multiple regards, went directly to the strength of the government's case. In light of those suppressions, the Court concluded that it was impossible to be confident that Banks received a fair trial in the penalty phase.

Justice Ginsburg then turned to the Cook evidence, in the section of her opinion for a unanimous Court. The lower courts did not consider this evidence because they considered it insufficiently plead in the habeas petition. In response, Banks argued that Fed. R. Civ P. 15(b), which treats a pleading as amended to incorporate issues tried by implied or actual consent of the parties, entitled him to treate the pleading as having been amended to cover the issues raised by the Cook transcript. The lower courts held that Rule 15(b) does not apply in habeas proceedings, but the Supreme Court disagreed. While AEDPA includes a requirement that the prosecution expressly waive procedural defenses, no such rule existed pre-AEDPA. Because the Fifth Circuit erred in not considering the Cook issue because of procedural grounds, the Court remanded for further consideration. The Court thus granted a writ of habeas corpus on the death sentence and remanded for further proceedings on the conviction.

The Partial Dissent

Justice Thomas wrote a brief dissent from the conclusion that withholding the Farr evidence prejudiced Banks. He argued that, while it was a close call, the jury would not have changed its opinion, because it was faced with evidence of a horrible crime and that the defendant had admitted that he was willing to supply Farr with a gun to facilitate Farr's violent crimes. As a result, Justice Thomas concluded that even if the jury totally disregarded Farr's testimony, it would have sentenced Banks to death, and thus Banks failed to show prejudice. While the dissent did not reach the issue of whether Banks showed sufficient cause, Justice Thomas stated his doubts, relying on the state's claim that it did not "knowingly" fail to turn over any evidence for the proposition that the state may have been unknowing in its failures, and that Banks should not have relied on that statement as much as he did. Justice Thomas also briefly dismissed Banks's ineffective assistance of counsel claim, which the Court did not reach.

Analysis

This is an easy case. The only thing difficult about this case is figuring out how two justices could have gotten it wrong. Prosecutorial misconduct cuts to the heart of our confidence in the criminal judicial system. Nothing is more damaging to its integrity than a prosecutor permitting perjury by a witness who is in the employ of the police. In the same way that fraud statutes of limitations do not run until the fraud is or should have been discovered, when the prosecution fails in its obligations to disclose exculpatory information, courts should have little patience with procedural arguments that fault the defendant for failing to raise the issue earlier.

Similarly, the question of prejudice is easily resolved by the fact that the prosecution relied on the evidence in its summation. The prosecution clearly believed that the false testimony mattered, because it focused the jury's attention on it. While that could happen where the false evidence was simply the most extreme evidence in a huge pile of evidence, that was not the case here. A jury could reasonably conclude, if it knew all the truth, that the prosecution had been forced to rely on purchased lies because it could not actually demonstrate, with the high degree of confidence of "beyond a reasonable doubt," that Banks remained a danger. In any event, the consequences of granting relief are low: the state remains free to empanel a new jury for a new penalty phase. But the consequence of denying relief are very high. First, a prisoner may be executed under circumstances where a properly informed jury would have sentenced him to a lesser penalty, perhaps life without parole. Second, and at least as important, denying relief sends the signal to prosecutors that these sorts of games are acceptable. If one of your witnesses lies, go ahead and let 'em, because even if it comes out, the courts may let the conviction stand and the worst that happens is a new trial. On the other hand, if you correct the lie and your case is hurt, you're stuck with that result and don't get a second bite at the apple. That sort of incentive is a disaster. Prosecutors need to be the purest white knights, playing hard and zealously representing the state but turning perfectly square corners and living up to the highest ethical standards of the bar. In order to ensure that, prosecutors have to be confronted with heavy deterrence when they fail to live up to their obligations. I'm not even convinced that any test for prejudice provides enough deterrence. But even if some test for prejudice makes sense, to avoid the costs of retrying cases with overwhelming evidence, it should be limited to cases where the evidence is truly overwhelming.

Finally, it's worth noting the racial overtones, which the Court neglected. Cook testified that the defendant killed "the white boy." While the Court presented no evidence that he was coached on that, it's worth considering, especially because of the clear racial bias in the application of the death penalty to state-law murder cases: blacks who murder whites are vastly more likely to be executed than in other victim-offender race combinations. Testimony that brings the race of the victim to the attention of the jury is inherently worrisome, although it may be proper in cases like this where it represents a direct quote. Combining racially oriented testimony with evidence that the state coached the testimony and a failure to provide the defense with the evidence it needed to respond makes those worries far more troubling.