Banks v. Dretke – Oral Argument – December 08, 2003

Media for Banks v. Dretke

Audio Transcription for Opinion Announcement – February 24, 2004 in Banks v. Dretke

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William H. Rehnquist:

We’ll hear argument next in No. 02-8286, Delma Banks v. Doug Dretke.

Mr. Kendall.

George H. Kendall:

Mr. Chief Justice, and may it please the Court:

This case presents three issues, two arising from purposeful and recurring misconduct by the trial prosecutors, and a third from constitutionally deficient defense counsel.

Prior to trial, the prosecutors promised to disclose discoverable material to the defense.

They knew that Robert Farr would testify as a key witness at each phase of trial, and they knew that he was an informant and had been paid for his services.

Mr. Farr did in fact take the stand at both phases of this trial.

He denied he was an informant.

He denied he received any consideration for his work.

He denied tipping off the authorities that Mr. Banks would be taking a trip to Dallas.

He denied setting up Mr. Banks for arrest.

The prosecutors knew that when Mr. Farr gave his testimony it was not truthful.

They did not rise to their feet and ask Mr. Farr to correct this testimony.

Anthony M. Kennedy:

And it… is it your contention that this is a basis simply for setting aside the sentencing phase of the trial?

George H. Kendall:

We have asked this Court to affirm the district court, who… who did grant relief on death sentence.

We’re not asking for relief on guilt innocence on… on the Mr. Farr claim.

Anthony M. Kennedy:

All right.

I’m… I’m… I’m somewhat puzzled by that, but you have three different claims to discuss here and I don’t want to take too long.

It… it would seem to me that, if it… if… if this is the evidence at trial, that… that there’s no additional obligation or special obligation at sentencing where that becomes really a secondary matter.

George H. Kendall:

Your Honor, the reason why we take that position is that his testimony at the punishment phase is absolutely critical for the state to get the death penalty in this case.

The district court recognized that.

The Fifth Circuit in this case said that that testimony was crucial.

What he told the jury was that Mr. Banks had returned to Dallas to get a gun so that Mr. Banks could on the return trip commit armed robberies and take care of and eliminate witnesses.

There was no other testimony that came close to matching that at the punishment phase, and the state had the burden to establish beyond a reasonable doubt that Mr. Banks would be a danger in the future.

If they didn’t satisfy that–

Antonin Scalia:

Well, but… but you… you have the burden, don’t you, to show that the outcome would have been… would have been different had the… had the state come clean at the beginning?

And as I understand it, you… you assert that… that he would not… a jury would not have judged him as harshly if the jury had known that he was going to get the gun in order that Farr could commit robberies with… with apparently his assistance, rather than what Farr had told them, namely that he had gotten the gun in order that he would commit future robberies, right?

And you think that would have made the difference, whether he’s getting the gun to let somebody else kill or getting the gun to kill himself?

George H. Kendall:

–Your Honor, Mr. Banks denied at trial that he had any intent to commit any crime whatsoever with regard to this robbery.

And Mr. Farr had made it clear–

Antonin Scalia:

Understand.

But… but… but you’re saying he admitted that… that he got the gun so that Farr could commit robberies, right?

George H. Kendall:

–We think there’s a world of–

Antonin Scalia:

And that would have… would have… would have tapped a wellspring of mercy in the… in the jury’s breast?

I… I don’t really see how it would make that much difference.

George H. Kendall:

–No, Your Honor.

The point is… is that the… the state could not ask the jury to impose the death sentence unless it first found beyond a reasonable doubt that Mr…. there was a strong likelihood that Mr. Banks would commit acts of violence in the future.

We think there’s a clear difference, and the trial prosecutors recognized this, between Mr. Banks going to get a gun so that Mr. Banks could rob and kill, as opposed to providing instrumentality.

But more importantly, Your Honor, Mr. Farr recanted that testimony at the Federal hearing and that recantation was found credible by the district court.

Antonin Scalia:

Recanted what testimony?

George H. Kendall:

No one had the intent to rob anybody.

That was a ruse that Mr. Farr used–

Antonin Scalia:

Banks admitted that himself.

George H. Kendall:

–No. Mr. Banks admitted on the stand that he had finally agreed to accompany Mr. Farr to Dallas to get a gun.

But Mr. Farr denied… Mr. Banks denied that he had any intent whatsoever to commit any crime, and he flatly denied that assertion.

Mr. Farr… this was a ruse that Mr.–

Antonin Scalia:

What… what… what was… what was the gun going to be obtained for?

Self-defense?

George H. Kendall:

–It was–

Antonin Scalia:

These people were being–

George H. Kendall:

–it was a ruse–

Antonin Scalia:

–threatened by somebody?

George H. Kendall:

–Justice Scalia, it was a ruse that Mr. Farr used that was not true–

Antonin Scalia:

Oh, that… that explains–

George H. Kendall:

–to–

Antonin Scalia:

–why Farr got it.

It doesn’t explain why Banks got it.

George H. Kendall:

–But that was not the theory that the case… that the prosecutors asked the jury to conclude beyond a reasonable doubt that Mr. Farr would… that Mr. Banks would be dangerous in the future.

The district court granted relief on that and we think that clearly we have shown materiality on that point.

David H. Souter:

As to materiality–

David H. Souter:

–But he… I take it you do not agree that you have to show that the result would have been different?

George H. Kendall:

We… we do not agree with that.

In fact, we believe that this Court has not retired the Alcorta and Napue standard, and… and it shouldn’t use this case.

The… the standard in Alcorta and Napue that says if the Government puts up perjured testimony, that if there’s a possibility that that testimony affected the judgment or if the judgment is reversed.

We do acknowledge that this Court in Brecht did provide a rule generally for habeas corpus that is different from that rule.

But it said in footnote 9 of that decision that where there are cases where there was a pattern of misconduct, that the Brecht rule might not apply.

There is clearly a pattern of misconduct by the Government in this case.

Antonin Scalia:

Well, you have to show cause and prejudice, and I thought that under Strickler, the… the necessity of showing prejudice requires that you show that there is a reasonable probability that the sentence would have been different.

George H. Kendall:

Your Honor, we’ve not–

Antonin Scalia:

You… you don’t think you have an obligation to show reasonable probability–

George H. Kendall:

–We do.

We do, and… and–

Antonin Scalia:

–that the sentence would have been different.

George H. Kendall:

–We do, Your Honor, and the district court–

Antonin Scalia:

You… you acknowledge that you have to do that or?

George H. Kendall:

–On… on cause, we do, Your Honor, and we… we… we’ve met that clearly.

So it’s our submission here that Mr. Farr’s testimony was critical–

William H. Rehnquist:

Alcorta was a case on direct review?

George H. Kendall:

–It was a habeas case, Your Honor, but the Court has not distinguished between–

William H. Rehnquist:

But decided long before a lot of our other habeas cases, which are perhaps somewhat limited to relief?

George H. Kendall:

–That’s correct, Your Honor, but the Court, since Brecht, in… in subsequent cases, in… in Kyles and in Strickler, has continued to refer to the fact that there’s this category of misconduct that has always been treated differently, and we do not see why it shouldn’t be applied here.

However, we believe that, given the importance of Farr in this case to the state’s case that we meet the reasonable probability standard, or whatever the… other standard the Court would impose on us.

The Fifth Circuit reversed the district court–

Sandra Day O’Connor:

May I ask you whether the record shows that counsel for Banks and Banks thought Farr was an informant back in 1980?

George H. Kendall:

–There was repeated effort by trial counsel to answer that question.

At a pre-trial hearing, counsel specifically asked the chief investigator, who’s your informant?

And the investigator said, I’m not going to tell you.

When Mr. Farr was on the stand, both at the guilt phase and at the sentencing phase, counsel asked, are you working for the state, are you an informant?

Sandra Day O’Connor:

Well, so there was a suspicion of that back in ’80?

George H. Kendall:

And I think after trial, given the–

Sandra Day O’Connor:

But then 16 years went by.

George H. Kendall:

–Yes, Your Honor, because there were–

Sandra Day O’Connor:

And… and this wasn’t evidence that was under lock and key.

There were witnesses.

They just weren’t easily available.

George H. Kendall:

–Your… Your Honor, there was… it was very difficult for us to obtain this proof.

We… we had every right to belief the… given the fact that the prosecutors had said, Mr. Farr has been truthful with you in every way, that whoever the informant was in this case, it was not Robert Farr.

We only began to think differently about this when we finally got access to another of the critical state witnesses, Charles Cook, who told us in 1992 that some of his testimony was not truthful.

Anthony M. Kennedy:

Suppose we find that the… or… or conclude that the defense counsel was not as diligent as it ought to have been on this point.

Is that somehow excused by the prosecution’s failure to present the Brady material?

George H. Kendall:

Your Honor, we think that we acted reasonably and diligently in post-conviction.

We were misled by the state, and in fact, we used that state habeas… we filed in… in… in 1992 the claim on information belief Farr was an informant in this case.

Anthony M. Kennedy:

Well, it’s… there’s perhaps a slight difference in being misled and simply a… a case in which the prosecution does not come forward with Brady material.

There… they may be some distinction in the two.

What is the standard that you would have us apply in this case to rule for you with reference… if… if we base that ruling on the prosecution’s failure?

Is it just a standard Brady?

George H. Kendall:

That would be under Strickler.

Our view is that because of the misrepresentations in this case, we were… we were allowed to rely on those misrepresentations.

We wanted to litigate Farr’s informant status in the state habeas proceedings, but we couldn’t get the evidence to prove that.

Antonin Scalia:

What–

David H. Souter:

–But specifically the misrepresentations were what?

George H. Kendall:

Were that Farr had… had… had denied that he was a paid informant.

He was a paid informant, and the prosecutors in their closing arguments told the jury that he had been completely–

David H. Souter:

Okay.

George H. Kendall:

–truthful in every way with you.

David H. Souter:

Had they also not given, or… or before trial had they not also said, we’ll give you everything in the file?

George H. Kendall:

They said, you don’t have to file a discovery motion, we will disclose to you material that is discoverable, and this clearly was discoverable material–

David H. Souter:

Okay.

George H. Kendall:

–when they put him on the witness–

Ruth Bader Ginsburg:

–But they didn’t… the defendant didn’t ask to discover anything.

Ruth Bader Ginsburg:

The prosecutor said, you know, everything is available to you.

George H. Kendall:

–He–

Ruth Bader Ginsburg:

What did… what… what did he ask for?

What did defendant ask for?

George H. Kendall:

–He filed a standard discovery motion, but the… the Government long before that said, you don’t have to file a motion, we’ll provide material that’s discoverable to you.

And there’s no argument… the… the state has tried to say that it, even by calling an informant, it does not have to reveal–

Ruth Bader Ginsburg:

Did… did–

George H. Kendall:

–that status.

Ruth Bader Ginsburg:

–did… did the defendant get anything after the prosecutor said, you don’t have to file any formal motion, we’ll give you everything you’re entitled to?

George H. Kendall:

It… the prosecution revealed prior convictions on its witnesses.

It did not disclose Mr. Farr’s informant status or arrangement.

It did not disclose with regard to Charles Cook.

Anthony M. Kennedy:

Were there documents–

David H. Souter:

–Okay, but–

Anthony M. Kennedy:

–Were there documents or arrest reports to show Farr’s informant status, or was this just a… a… a circumstance where the prosecution should have said orally that this is his status?

George H. Kendall:

When we finally obtained what was represented to us to be the full prosecution file in this case, there was not one notation in there with regard to Mr. Farr, identifying him as an informant.

They were obliged to–

Anthony M. Kennedy:

So then there… you’re not complaining that documents weren’t turned over?

George H. Kendall:

–That’s correct.

They–

Anthony M. Kennedy:

You’re complaining that the… that… that a statement was not made by the prosecution?

George H. Kendall:

–That… that we believe the law required them, once they decided to put this informant on the stand, to disclose that factor to the defense.

David H. Souter:

Because it was Brady material?

George H. Kendall:

Because it was Brady material.

David H. Souter:

All right.

Now, may I go back to Justice Ginsburg’s question?

You… you… you gave us some examples of… of material that was turned over to you under this policy in… in which it was not necessary to file a motion.

Was that material turned over you in response… to you in response to a specific request from you, or did they simply come up with this and say, this is the material that you could get if you moved for it?

George H. Kendall:

It was turned over after a general discovery motion was filed, but that discovery motion was never taken up at a hearing.

This was disclosed–

David H. Souter:

All right.

Did the general discovery motion refer specifically to what they gave you, or was the motion simply, give us everything we’re entitled to?

George H. Kendall:

–It… I believe it said give us prior convictions.

And–

David H. Souter:

Well, then that was what they gave you.

George H. Kendall:

–And that’s all that they provided, that’s correct.

David H. Souter:

I mean, the problem that I’m… I’m having with this is, I thought at… and… and I… I… I got into this myself, I realize, but I thought they had said, in effect, we’ll give you everything you’re entitled to.

Now we’re getting down to greater detail, and I think the problem is mine, but I want to follow it through.

They apparently said, you don’t have to file a specific motion.

Justice Ginsburg raises the question, well, what did you ask for even though you didn’t have to file a specific motion?

You say that you filed a general discovery request that specifically did ask for prior convictions.

They gave you prior convictions.

My concern is that the understanding between counsel was, we’ll give you what you ask for, but we are not volunteering by our representation to give you anything you don’t ask for.

If this is correct, then the only reason you would be entitled to this would be an affirmative Brady obligation, whether you ask for it or not.

Is it the Brady obligation or do you think they had undertaken something more extensive than Brady required?

George H. Kendall:

I think that they assured counsel that whether it was… whether they had to disclose something under state law or under Brady, that there was no need for litigation.

They would provide Brady material–

David H. Souter:

But did they issue or counsel that counsel would not have to ask for it?

George H. Kendall:

–The letter… the letter says, you do not have to file a motion, we’ll provide you with material that the law requires us to disclose–

David H. Souter:

That the law requires us to disclose?

George H. Kendall:

–That’s correct, Your Honor.

Antonin Scalia:

Material.

I… I would take that to mean documents that we have that you’re entitled to, and we don’t know that there are any documents reflecting… reflecting Farr’s informer status, do we?

George H. Kendall:

But, Your Honor, it said in lieu of a motion, and so I think it was fair for counsel to include that there needed to be no litigation about discovery–

Antonin Scalia:

Well–

George H. Kendall:

–that the Government understood what state law and Federal law required.

Sandra Day O’Connor:

–But maybe there had to be a request, not litigation, but say, tell me, was he an informant?

George H. Kendall:

Well, Your Honor–

Sandra Day O’Connor:

Tell me.

Did you every ask that?

George H. Kendall:

–I think after these assurances, I think counsel–

Sandra Day O’Connor:

Please answer that question.

George H. Kendall:

–I’m sorry.

Sandra Day O’Connor:

Did you ever ask the prosecution whether Farr was an informant?

George H. Kendall:

At trial, there’s nothing in the record where the prosecution was specifically asked.

It’s state habeas.

We pled a… a claim on information belief that he was a paid informant.

That required the government lawyer who was… who was one of the trial prosecutors to respond, we believed, truthfully.

He did not respond to that, and that–

Sandra Day O’Connor:

Now, when was this?

George H. Kendall:

–That was in state post-conviction proceedings, and the… and he has was required to respond truthfully to that, and under state law that–

Antonin Scalia:

He didn’t respond falsely.

He just didn’t respond.

George H. Kendall:

–But under state law that is a no, that is a denial.

Antonin Scalia:

But–

George H. Kendall:

But he–

Antonin Scalia:

–A failure to respond is a no, rather than… than a yes?

George H. Kendall:

–Any… any factual allegation of petition that is not addressed specifically in the answer is treated as–

Antonin Scalia:

So as a–

George H. Kendall:

–a denial.

David H. Souter:

–And… and in addition–

Ruth Bader Ginsburg:

–It was more than that though, wasn’t it?

It… they… in… in fact, the state put it in a general denial.

It denied each and every allegation of the complaint, including the allegation that Farr was an informer.

George H. Kendall:

Well, it’s clear that when you read their answer that the state had denied our allegation that Mr. Farr was a paid informant in this case.

David H. Souter:

And they had in effect at trial in the jury argument vouched for his truth, as I understand it.

George H. Kendall:

On… on both at the guilt innocence phase and at the punishment phase.

Antonin Scalia:

Yeah.

That… that’s the most shocking thing.

Do… do we know that… that counsel who allowed Farr to lie on the stand, and indeed went on to argue to the jury about Farr’s testimony, do we know that counsel knew that that was a lie?

George H. Kendall:

Your Honor, there aren’t–

Antonin Scalia:

I mean, you… well, you can argue it was his responsibility, you know, but I’m not talking about whether it was his responsibility.

George H. Kendall:

–Mr. Elliott gave an affidavit in state post-conviction that said that he was aware of all the facts pursuant to the investigation and the presentation of evidence in this case.

I would think that, given Farr’s important status in this case, there’s no doubt that he knew.

At the Federal evidentiary hearing, he did not in any way try to say that he did not know that Farr’s… was… had this informant status until much later at the trial.

Stephen G. Breyer:

In 19–

Sandra Day O’Connor:

–This is a bit of an aside, but do you know whether any disciplinary proceedings were ever brought against the prosecutors?

George H. Kendall:

There have been absolutely no disciplinary proceedings whatsoever.

Can I ask you about–

Anthony M. Kennedy:

–But there’s a… a number… you have Banks and I take it… tell… you want to talk to us about Cooksey in the… in… in the sentencing phase.

George H. Kendall:

Let… let me… we… let me go to the Cook claim if I could.

There was another very troubling due process claim raised in this case, and that was at the key guilt phase witness.

Mr. Cook had testified pursuant to a deal and that the state had withheld impeachment material on him.

Three months before the evidentiary in the hearing in this case, we received for the first time a lengthy pre-trial statement that had all kinds of impeachment material in that and that showed beyond any doubt that Mr. Cook had lied in his testimony before the jury that he had not in any way, shape, or form rehearsed his testimony with the state.

From the time of that disclosure until the evidentiary hearing, it was clear that this transcript would serve as evidence for us to prove up our claim that the state had suppressed material, impeachment material, on Mr. Cook.

And Mr. Elliott, the trial prosecutor–

Antonin Scalia:

What… what did Cook testify to that was… that was essential to the… to the sentence?

George H. Kendall:

–This was the… the key guilt phase witness, Your Honor.

He was the… the entire narrative of the crime in the–

Antonin Scalia:

Yeah, but you’re… you’re… you’re not asking for the guilt to be… to be overturned.

You’re asking for the sentence to be.

George H. Kendall:

–With regard to the… Mr. Farr, we’re asking only for sentence relief.

With regard to Cook, we’re saying he was the crucial guilt phase witness.

Antonin Scalia:

So you’re asking for reversal of the conviction on the basis of Cook?

George H. Kendall:

That’s correct, Your Honor.

Antonin Scalia:

Okay.

What… now, what… what was essential to the conviction that… that he testified to?

George H. Kendall:

He… he provided… he had to… the… the prosecutor in his opening statement told the jury, Mr. Cook is our critical witness, you have to believe him for us to win this case.

He said that over and over again.

Cook presented the confession–

John Paul Stevens:

Well, he testified that the defendant confessed to him several times, didn’t he?

George H. Kendall:

–He… he was the only person who provided information that Mr. Banks had confessed.

He was the only person that tied Mr. Cook to… Mr. Banks to any other evidence in this case.

The trial prosecutor portrayed him accurately.

He was the critical witness for the Government at the… at the guilt phase of trial.

Antonin Scalia:

And… and what do you say the state withheld with regard to Cook?

That it had gone over his testimony in… in advance?

George H. Kendall:

Well, what he was asked, the first question on cross-examination was, who have you talked to about your testimony?

He said nobody.

He said, you haven’t talked to any about this case?

I haven’t spoken to anybody.

That was a bald-faced lie.

Antonin Scalia:

Well, it’s on its face incredible anyway.

You think the jury believed it?

George H. Kendall:

Well, Your Honor, the–

Antonin Scalia:

They think the prosecutors can just put him on without even asking him what he was going to testify about?

George H. Kendall:

–Well, they certainly would… they certainly would have believed that if the Government would have disclosed this transcript that showed that three days before trial Mr. Cook had a very difficult time keeping his narrative about this crime straight.

Anthony M. Kennedy:

How… how does that work?

When this occurs and… and this… these questions are set forth in footnote 4 of your brief… when this occurs, does a Brady obligation arise at that point?

George H. Kendall:

Your Honor, I think that–

Anthony M. Kennedy:

I’m the… I’m the prosecutor, I’m sitting there, I hear this guy say that he’s never talked to me and I know that he has and I know that I have 71 or 74 pages of notes.

Do I now have a Brady obligation?

George H. Kendall:

–Your Honor, for decades the Court has said that when a government witness lies, the government attorney has the obligation to correct that.

The Brady obligation continues, it’s pre-trial and it’s during trial.

It can arise during trial depending on… on what the government witness says, and it’s clear that after Cook gave that answer, that the Government was obligated, one, to have him correct his testimony, but certainly not, after he’d given that testimony, to get up in front of the jury and say, Mr. Cook was completely truthful.

Anthony M. Kennedy:

But my question is, is there a Brady obligation?

George H. Kendall:

There is a Brady obligation, absolutely.

William H. Rehnquist:

Well, now, is your point… your point is more than just that he said it, he didn’t admit that he had talked to other people before trial, is it?

George H. Kendall:

No, no, no, because it… it was clear that what the defense was trying to show was that Mr. Cook should not be believed because he’s really been worked over by the prosecutors to get his story together.

And that’s exactly what the transcript that wasn’t disclosed demonstrated.

George H. Kendall:

He was mocked during this pre-trial statement by the prosecutors who were preparing him because he was making so many mistakes and getting things all out of order.

They didn’t believe he was a credible witness three or four days before trial, and the only reason that he was, or might have appeared credible, was because of this session.

This was classic impeachment material.

The Government had this in their briefcase at trial.

They… they disclosed the… the brief statement that Mr. Cook had given four minutes before but not this one.

Ruth Bader Ginsburg:

But you lost on this point in the… in the Federal court?

George H. Kendall:

Unfortunately, Justice Ginsburg, we did not lose on it.

The district court did not adjudicate that claim.

Stephen G. Breyer:

But your time… your… your light’s flashing, and I… when you come back, I’d appreciate your asking… answering one factual question I have on this.

In 1996, you’re in Federal court with five witnesses about Farr being a… an informant.

In 1992, you say you learned from Cook information that led you to think you’d find those witnesses.

In 1992 and ’93, you are in state habeas.

Why did you not either engage in that kind of discovery in state habeas or find those witnesses for the state habeas court?

George H. Kendall:

Because we… efforts were made, we could not find Farr.

But we… efforts were made, and we could not find Farr, but we went right to the horse’s mouth.

James Elliott, the prosecutor in this case, knew that he was a paid informant.

When we raised that claim in our petition, he had an obligation then to… to tell us honestly was he an informant or was he not, and he did not do so.

We wanted to litigate his status, Farr’s status in the state court.

We were prevented from doing so because of the lack of candor and the lack of discovery from the prosecutor.

He could have made this very simple and said, yes he’s the guy, let’s litigate this in state court.

He didn’t do so.

Let me turn briefly to the ineffective assistance claim.

The district court granted relief on that claim after hearing information that this Court has said time and again is relevant to the capital sentencing process.

The Fifth Circuit overturned that grant of relief by making a… two legal mistakes.

First, unlike the district court, and… and not following the decisions from this Court, the… the Court vulcanized its review of our mitigating evidence instead of looking at it in its entirety and weight that against the aggravation.

It broke this evidence up into three categories and said, looking at each one, weighing these on the scale, the panel found no reasonable likelihood of a different result.

That is clear–

William H. Rehnquist:

What… what categories were–

George H. Kendall:

–There was mental health evidence.

There was testimony about Mr. Vetrano Jefferson recanting his testimony that… about who was the… who had been the aggressor in a fight before this crime, and then the testimony offered by the parents in this case.

William H. Rehnquist:

–All going to guilt or some going to sentencing?

George H. Kendall:

All… all going to sentence, Your Honor.

This was–

William H. Rehnquist:

All going to sentencing?

George H. Kendall:

–This was only about sentence, Your Honor, that’s correct.

Antonin Scalia:

Of course, the parents had testified in the… and I think he even said that they were good parents, didn’t he?

George H. Kendall:

Your Honor–

Antonin Scalia:

And… and… and the fact that they were these horrible parents were… was going to be testified to by a Dr. Pina, is that it?

George H. Kendall:

–Your Honor, there was no claim that these were horrible parents.

They were loving parents, but they was a very troubled family that Mr. Banks–

Antonin Scalia:

I see.

George H. Kendall:

–grew up in, and it’s… there was evidence that came out that was plainly relevant to the sentencing decision in this case.

Antonin Scalia:

It came out of whose mouth?

George H. Kendall:

It came out of Mrs. Banks’ mouth as a–

Antonin Scalia:

Who–

George H. Kendall:

–Mrs. Banks, the mother–

Antonin Scalia:

–What did… what did she say?

George H. Kendall:

–in the state habeas proceedings.

Antonin Scalia:

What did she say?

George H. Kendall:

She said that, for example, her son had been subjected to all kinds of problems because of his very serious dermalogical ailment that he had from birth all through his life.

Antonin Scalia:

He had a skin… a skin problem–

George H. Kendall:

A very serious–

Antonin Scalia:

–and you think that would have altered the jury’s–

George H. Kendall:

–Well, that was one piece of the… of the court–

Antonin Scalia:

–All right.

What… what… I… let… what… what is all of it?

George H. Kendall:

–That her… her husband unfortunately had been an… a alcoholic and… and for years when he became drunk would terrorize her, terrorize the children.

She often had to take the children and leave the house to assure her safety and Mr. Bank’s safety and his siblings’ safety.

Antonin Scalia:

She testified to that?

George H. Kendall:

She… she proffered that in state court, that’s correct, Your Honor.

George H. Kendall:

And then the experts, Mr. Cunningham in Federal Court, testified about what all this does to an individual in the formative years of life.

This is–

Ruth Bader Ginsburg:

There was one specific incident of the father tying the boy to a tree and whipping him.

Were there any other specific incidents or just general allegations that when he… he… when the father became drunk–

George H. Kendall:

–It… it–

Ruth Bader Ginsburg:

–he became violent.

George H. Kendall:

–It was… it was Mrs. Banks’ testimony that there had been repeated instances where, to avoid harm, they had to leave the home.

In… there were some problems that–

Antonin Scalia:

Did she testify about being tied to a tree?

George H. Kendall:

–Did–

Antonin Scalia:

Did… did Mrs. Banks provide the testimony about his being a tied to a tree and whipped?

George H. Kendall:

–No, she did not.

Antonin Scalia:

Who provided that?

George H. Kendall:

Mr. Banks provided that.

Antonin Scalia:

Mr. Banks provided that.

George H. Kendall:

Yes.

Antonin Scalia:

Not terribly credible if–

George H. Kendall:

Well, Your Honor, the state has never… in state court they did not attempt to show that any of this proffer was inaccurate or not true.

Their position in state court was simply that the trial lawyer had done a good job, and so we’d failed to show prong one of Strickland.

In the Federal court–

Antonin Scalia:

–Well, I’m… I’m just concerned whether it would make any difference.

One… once again, your burden is to show that would have made a difference.

George H. Kendall:

–And the… and–

Antonin Scalia:

Skin problems and an alcoholic father, you know, who… who on the basis of Banks’ mother’s testimony terrorized the child and Banks’ testimony that he was tied to a tree and whipped.

George H. Kendall:

–Your–

Antonin Scalia:

I… I just–

George H. Kendall:

–Well, Your Honor, the… the testimony here was that these were very serious–

Antonin Scalia:

–And this was–

George H. Kendall:

–things that plagued Mr. Banks’ life–

Antonin Scalia:

–and the jury would have thought that this explains his… his… his cold-blooded murder of… of the victim for his car?

George H. Kendall:

–Well, Your Honor, it might not fully explain it, but it would say that he’s not the type of offender for whom the death penalty needs to be carried out against.

I’d like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Kendall.

Ms. Bunn, we’ll hear from you.

Gena A. Bunn:

Mr. Chief Justice, and may it please the Court:

From 1983 to 1996, Banks filed three separate state habeas applications raising numerous claims, but Banks failed to diligently pursue his current Brady and Strickland claims during these state proceedings.

He elected instead to expend his efforts pursuing other claims.

It wasn’t until Federal habeas proceedings that he turned his efforts to developing the instant claims.

Antonin Scalia:

Did… did the state deny in one of these habeas applications, deny that Farr was an informant?

Gena A. Bunn:

No, Your Honor, the state never denied it.

It did fill–

Sandra Day O’Connor:

Well, now wait a minute–

Ruth Bader Ginsburg:

–Then explain to me what was–

Sandra Day O’Connor:

–in… in… in the state habeas proceeding, the state submitted a response to the petitioner’s petition and denied all the allegations in the petition, which included the assertion that Farr was a paid informant and that the state had withheld that information from Banks.

The state denied that, did it not?

Gena A. Bunn:

–No, Your Honor.

It is not our interpretation of the record that it did, because this single sentence found in a 145-page petition was buried in a… basically a laundry list of claims of prosecutorial misconduct, at the end of that section containing a great number of other allegations, which the state responded to specifically by saying, first a number of them had been addressed in other sections of the brief, including the Swain claim, and another Brady claim that was fully developed.

And then it responded to the remaining claims by saying that they were all procedural… procedurally defaulted based on the lack of a contemporaneous objection.

Ruth Bader Ginsburg:

Ms. Bunn, did not the state say, we deny each and every factual allegation in this complaint?

Gena A. Bunn:

Yes.

There was a general denial at the beginning of the… the state’s answer to the 145-page brief.

However, the context–

Antonin Scalia:

You better be careful what you deny, don’t you think?

I mean, each and every would include that, even if it’s buried in, you know, if it’s buried in a lot of other stuff.

I mean, you could have said, you know, everything’s so buried we can’t tell what’s what, but you didn’t say that.

You said, we deny each and every.

Gena A. Bunn:

–Yes, Your Honor, and it does appear that–

Sandra Day O’Connor:

Is it that the case that… do you now concede that Farr was paid something for his information–

Gena A. Bunn:

–Yes.

Sandra Day O’Connor:

–by the state.

Gena A. Bunn:

Yes.

Well, not for information.

He was paid to assist police in obtaining the murder weapon.

Sandra Day O’Connor:

Yeah.

And did the state prosecutor ever disclose that during the trial, even though he said, no, everything’s perfectly truthful here?

Gena A. Bunn:

No, Your Honor.

The state never–

Antonin Scalia:

He knew… he knew that Farr was testifying falsely and he… he let that testimony go, and indeed relied on it in his summation to the jury?

Gena A. Bunn:

–What the trial prosecutor knew… there’s nothing in the record to indicate the trial prosecutors actually knew about the money that Bank… that… that Farr was paid several months before the trial in this case by… by police investigators.

John Paul Stevens:

But isn’t he charged with knowledge of what the organization as a whole did?

Gena A. Bunn:

In the… in the Brady disclosure context, certainly he is.

Anthony M. Kennedy:

Wasn’t it representative of the police there at the trial the whole time to assist the prosecutor?

Gena A. Bunn:

Not that… not that I’m aware of that the police were at the… at… really have testified in the trial.

But I believe the rule was invoked in the trial, so he did not sit in on… on Farr’s testimony or any of the other state’s witnesses’ testimony.

But–

Sandra Day O’Connor:

Well, I assume we have to take this case on the… the premise that the state somehow knew that the state had paid the money to Farr, and I guess also had promised some kind of a break not making certain criminal charges?

Gena A. Bunn:

–There is no evidence of any inducement of that kind to Farr in this case, no evidence of any kind of inducement whether financial or a break in… in any convictions for his testimony, contingent upon his testimony in this case.

That’s what distinguishes it from cases like Bagley and Giglio.

John Paul Stevens:

But are you saying that because he was paid to help get the gun back rather than to testify falsely?

Gena A. Bunn:

Yes, Your Honor.

That is correct.

John Paul Stevens:

So that he was paid for a critical role in the scenario that led to the indictment, rather than post-indictment false testimony.

Gena A. Bunn:

Yes, Your Honor.

That is correct.

But again, as far as the cause issue goes, and there is no dispute that the claim is procedurally defaulted to… due to Banks’ failure to develop it in… in the state court.

The dispute is whether he has established cause, and the… the basis… the focus of the inquiry in cause is the petitioner’s conduct, and in this case, the state record makes clear that Banks was aware of this claim and actually alleged the claim in the petition itself.

Anthony M. Kennedy:

Well, does the petitioner’s awareness that there is a… a claim supersede the prosecution’s obligation to disclose Brady material, and to disclose the fact that one of its own witnesses lied on the stand?

Gena A. Bunn:

Not that it supersedes the obligation under Brady, but it does preclude a finding of cause in a case like this where the nondisclosure–

Anthony M. Kennedy:

So the prosecution can lie and conceal and the prisoner still has the burden to… to discover the evidence?

That’s your position?

Gena A. Bunn:

–Yes, Your Honor, because in a case like this, unlike Strickler, unlike Amadeo, this is more like… more like McCleskey, where the nondisclosure, whether in trial court or in state habeas, did not prevent the petitioner from developing the claim.

Stephen G. Breyer:

But it didn’t prevent it absolutely, but it made it pretty tough, didn’t it?

I mean, the… sitting there in January, the prosecution has been not… been denying nonstop that Farr has been paid anything, they’re beginning to get some information maybe that isn’t true.

The prosecution is still denying it by denying the allegation, and they think they’re going to have to find somebody who will prove… who will say that, and they can’t find Farr.

So what are… what were they supposed to be doing?

They were looking for witnesses.

They couldn’t find Farr.

The prosecution isn’t telling them the truth apparently.

And so, what… what is it that they should have done?

Gena A. Bunn:

Well, Your Honor, this case does not present a situation where there is a record developed on what efforts Banks expended on this case.

There’s nothing in the record to indicate that Banks’ counsel pursued this claim, that they sent investigators out to try to find Farr.

There’s absolutely nothing–

Stephen G. Breyer:

I didn’t say that.

What I said was, I was repeating what he said, that… and when they filed it in January… I don’t want to repeat it again, you heard what he said too… and he said they’re just learning from Cook some time in 1992 that it might be possible to get evidence that would show what the prosecution was saying was false.

So I want your opinion.

You say it’s quite clear that they should have investigated this further.

Really?

Because?

Gena A. Bunn:

–Because they were obviously aware of the claim, aware of the potential existence of the claim.

They requested no investigative assistance regarding the claim.

They investigated no discovery regarding the claim.

They… while they… what they did do was expend what at that point were pretty extensive resources pursuing and developing their Swain claim and another Brady claim.

Anthony M. Kennedy:

But you want us to say that the… that the defendant relies on his peril, at his peril, on the representations of the… of prosecution?

Gena A. Bunn:

At… in… in a case like this where, unlike Strickler, where the evidence, the… the nondisclosed evidence was not in the sole possession of the state.

It was discoverable as… as actually ultimately have it in habeas, in… in Federal habeas proceedings.

Banks was able to procure this evidence.

David H. Souter:

No, but you are… are… aren’t you arguing, just as Justice Kennedy suggested, that what they should have done in this case is to go to the court and say, we want further resources to investigate, and what specifically we want to investigate is an issue which, if we are correct, the state is affirmatively lying about.

We want investigative resources to prove that state’s counsel is lying.

Isn’t that your position?

Gena A. Bunn:

Well, yes, Your Honor–

David H. Souter:

And for failure to do that–

Gena A. Bunn:

–that would be–

David H. Souter:

–for failure to do that, they’re out.

Isn’t that your position?

Gena A. Bunn:

–That is part of our position, that essentially the absence of that, the absence of a request for investigative assistance, the absence of any–

David H. Souter:

But, in the… in the… in the face of the state’s representation.

In other words, if… if they asked for it, I assume the state would have said, well, we’ve told them that there isn’t anything to this.

And… and… and you would… you’re saying that they should have pursued it in the face of that for the purpose, among other things, of proving that state’s counsel was lying to them?

Gena A. Bunn:

–Your Honor, they… there was an obligation from them to pursue the claim further, yes.

Ruth Bader Ginsburg:

Why wasn’t there an obligation on the part of the prosecutor, having deceived the jury and the court, to come clean?

Why is the burden on the defendant, who was subjected to false testimony?

Why is… and the prosecutor knows it… why isn’t it the prosecutor’s burden to come clean at any stage, rather than let this falsehood remain in this record?

I just don’t understand why it becomes the defendant’s burden when the prosecutor is best situated to have the information, was this true or not, did we pay this informant or not.

Why isn’t that a continuing obligation on any lawyer who makes a representation that’s false to a court?

Gena A. Bunn:

Your Honor, the first… first it is not… that’s not the question.

It is the habeas petitioner’s burden to allege and prove… provide evidentiary support for his claim.

Anthony M. Kennedy:

Well, but it is the question if… if Justice Ginsburg is right, that prosecutors have a continuing obligation.

Gena A. Bunn:

Well, that obligation is essentially triggered by materiality, so you have that working as well.

But that does not… the… the state’s continuing obligation does not basically preclude a finding of… of… of no cause in a case like this.

Anthony M. Kennedy:

Well, if I were a defense counsel, I could think of a… of a… no more damaging material of cross-examination in this case than to show Farr was paid money to come up with the story.

Gena A. Bunn:

Well, Your Honor, again, that… that was not the… those are not the facts of this case.

There’s no evidence and… and Farr has not said in post-conviction that he was paid for testimony.

Stephen G. Breyer:

Yeah, that’s true, but I… I mean, what–

John Paul Stevens:

–But I think it’s even–

Stephen G. Breyer:

–what bothers me about your position is, if we were to say that a defense counsel behaves unreasonably when he relies upon an explicit statement of the prosecutor’s, such as I deny the allegation, that’s to say that the justice system lacks integrity, and indeed it might contribute to that lack of integrity to impose this kind of obligation and thereby excuse a prosecutor under circumstances like this.

Gena A. Bunn:

But to find cause in a case like this would essentially be to hold that a Brady claim can never be defaulted because–

Stephen G. Breyer:

Of course it can.

All that it requires is that a prosecutor who says, my files are open, who says that we do not, in fact, deny that we paid money for a related purpose to the witness, all it requires is that he be telling the truth.

Gena A. Bunn:

–And I want to focus also on the… on the record itself and what Banks… Farr was never asked specifically whether he was a police informant, so he never denied that allegation.

At the guilt innocence phase, starting… it… it’s in the joint appendix at page 37… in the middle of questioning by defense counsel at the guilt innocence phase about his drug… prior drug use and his drug habit, he… Farr was asked the question, and have you ever taken any money from some police officers?

Gena A. Bunn:

And he answered no.

This was a false statement, but not to be construed as necessarily as a denial that he was a police informant, particularly given the context of the questioning.

Later in the guilt innocence, he was asked–

John Paul Stevens:

May I just interrupt with one question?

But isn’t it even more significant that his real role in the… in the whole story is that he was the person used by the police as an excuse to go up and get the gun back two weeks after Banks had left it there, whereas the record left the impression that Banks himself wanted that gun to commit future robberies, without any explanation of the fact that the… that two weeks went by without any such request?

And then when Farr gets in the picture, they go up to get the gun, and then Farr says, because Banks insisted on it, which is not only false, but improbable and terribly prejudicial at the… at the sentencing hearing.

Gena A. Bunn:

–Again, though, the… the materiality of Farr’s… of this nondisclosure has to be… there are several factors that have to be assessed in that… in that issue.

First, the fact that Farr wasn’t paid for his testimony, and the impeachment value of the informant status itself is limited to the mere fact that Farr had acted as a police informant in this case and had assisted police in obtaining the murder weapon.

But that impeachment did not extend to any inference that Farr had testified favorably for the state because he had any financial or any other kind of incentive to do so.

Antonin Scalia:

What… what–

John Paul Stevens:

–But it… it was diametrically opposed to the notion that he wanted to get the gun to commit robbery, as whereas the real purpose of the whole venture is to get the gun to give to the police.

Gena A. Bunn:

But Farr’s subjective intent did not undermine Banks’ intent, and Banks actually admitted at the punishment phase–

John Paul Stevens:

Banks’ intent as revealed in Farr’s testimony, which is the only evidence in supporting that theory that Banks was dangerous for that reason.

Gena A. Bunn:

–The difference is, Farr’s testimony was… indicated that Banks was… had the intent himself to participate in the robberies, and Banks limited that to being willing essentially to… to abet Farr in… in committing those robberies.

Antonin Scalia:

What… what page of the transcript that you… you cited page 37.

Is that in the joint appendix?

Gena A. Bunn:

Yes, joint appendix.

That’s the–

Antonin Scalia:

And that is the… that is the confession of… I’m sorry… that… that is the perjury… that’s the only perjury that’s supposedly–

Gena A. Bunn:

–That’s the… that’s one instance that they… that… that’s the only one dealing with money.

What police officers–

Antonin Scalia:

–Of course, this doesn’t… this doesn’t deal with whether he has… was a police informer.

It… it deals with whether the police officers promised you anything.

Gena A. Bunn:

–Yes, yes, that’s correct.

And that… the denial of that, of course, is… is not fault, because there’s nothing in subsequent testimony to indicate that’s… that’s untrue.

Ruth Bader Ginsburg:

Have you ever taken any money from some police officers?

No.

Gena A. Bunn:

Yes.

That is a false statement.

However, it can… it’s… it is far afield to interpret that as a denial of being a police informant.

Antonin Scalia:

Where… where… where is that?

Have you ever taken any money from police officers?

Gena A. Bunn:

That is at joint appendix 37.

Ruth Bader Ginsburg:

It’s three lines down from the top.

Gena A. Bunn:

In the middle of the questioning about… about Farr’s prior drug use, defense counsel asks, and… and have you ever taken any money from some police officers?

There is further–

Antonin Scalia:

Thirty, thirty-seven, my God, reading… oh, I got it, I got it, okay.

Gena A. Bunn:

–Further, he’s asked, what police officers did you talk to about this?

I have talked to no one about this outside of when they called us down referring to the case–

Antonin Scalia:

Yeah.

We got it.

Gena A. Bunn:

–which again is a false test… is a false statement, but does not specifically deny police informant status.

Anthony M. Kennedy:

Now, it does seem to me that the Cooksey report that the… I think it… the Cook… the–

Gena A. Bunn:

Cook.

Anthony M. Kennedy:

–the witness Cook–

Gena A. Bunn:

Yes, Charles Cook.

Anthony M. Kennedy:

–that the… that the report of his interviews with… with the police was… was very, very strong and helpful impeachment material.

Do you want to comment on… on the claim that relates to his testimony?

Gena A. Bunn:

Certainly, Your Honor.

The lower courts did not consider that claim to be properly before the court because Banks failed to present it in his Federal petition, failed to present it in any amended and supplemental petition, and the… and there’s nothing in this… in this record to indicate… that would support a finding of implied consent, or the trial by consent.

Antonin Scalia:

Well, you said, I mean, the… the Fifth Circuit didn’t think that Federal Rule of Civil Procedure 15(b) applies in habeas, right?

Gena A. Bunn:

That was a basis of its holding, yes.

That’s correct, on debatability.

Antonin Scalia:

Is… is that absolutely clear?

Gena A. Bunn:

No, Your Honor, it’s not, and it–

Antonin Scalia:

Well, if it’s not absolutely clear, then… then it seems to me they should have… they should have granted the… the certificate of appealability.

Gena A. Bunn:

–The issue actually before the Fifth Circuit, the issue that it resolved, was whether… whether it was debatable… the district court… whether the district court abused its discretion in denying the 59(e) motion, because, in fact, the district court never considered 15(b) because it was never raised to the district court, that… that particular argument.

So–

Antonin Scalia:

Well, that wasn’t the basis that the Fifth Circuit relied on.

I thought it relied on the basis that there’s huge… there’s just no question that 15(b) doesn’t apply in habeas.

Gena A. Bunn:

–That was part–

Antonin Scalia:

And there’s a lot of question about that, it seems to me.

Gena A. Bunn:

–Yes, Your Honor.

That was part of the holding.

The stated–

Antonin Scalia:

So maybe we should remand at… at least on the, you know, on the… on the Cook claim to have the… the Fifth Circuit decide whether a COA… decide the 15(b) question and then decide the Cook claim.

Gena A. Bunn:

–I believe that would be an appropriate course on this issue, and in this… we are not… we are conceding the debatability of the general applicability of 15(b) in the habeas context.

What we do not find to be… what we do not believe to be debatable is the applicability in this case, that essentially there’s no factual predicate for the application of 15(b) in this case, given that there’s… there’s simply nothing in the record to show that any party beside Bank himself, including the judge… the lower court judges, had any inkling that this issue was properly before them.

William H. Rehnquist:

But the Fifth Circuit passed on it, didn’t it?

Didn’t the Fifth Circuit pass on the question of whether 15(b) applied?

Gena A. Bunn:

The Fifth Circuit, after… after noting that what the Fifth… that… that the district court’s findings regarding the failure to raise the claim, the failure to raise it in an amended petition, did hold that it was… that it… that 15(b) did not apply in the habeas context.

Ruth Bader Ginsburg:

There was one petition you took in your brief and you said that… that the state is not obliged to reveal the identify of an informer.

That’s not correct, is it, if the informer is called as a witness?

Gena A. Bunn:

No, Your Honor, that is our position that essentially a prosecutor’s duty to disclose whatever information is triggered by the… the potential materiality of that information.

And particularly in a case like this, where the informant is not… was not paid for testimony, was not given any sort of break for his testimony, that there’s no specific inference that can be drawn regarding an incentive for testifying favorably for the state, that that is not–

Ruth Bader Ginsburg:

What authority… what authority do you have?

What case holds that when the Government puts an informant on the stand, it does not have to divulge that capacity?

Gena A. Bunn:

–There… I know of no such authority for that particular proposition, but there’s also nothing… there’s also no opinion from this Court saying that a witness’ informant status is per se material, which is essentially what… what that would–

Ruth Bader Ginsburg:

Isn’t there… isn’t there a Texas rule of evidence that says, this is 508(c)(1) of the Texas rules, an informer’s identity must be disclosed if he appears as a witness for the public entity?

Gena A. Bunn:

–Well, Your Honor, again, even… even assuming a breach of a Federal rule of… state rule of evidence, that would not implicate the constitutional due process concerns at issue here.

And under Brady–

Anthony M. Kennedy:

Well… well, it certainly goes to whether or not the defendant is… is entitled to rely on what the prosecution’s course of conduct is with reference to the informer.

Gena A. Bunn:

–But again, there’s nothing in this trial record to indicate that trial counsel specifically requested that information prior to going to trial, that he… that trial counsel himself didn’t pursue–

Anthony M. Kennedy:

So you say at the outset of the trial the defense counsel has to say, now, will you comply with all of the rules that are in the Texas statutes?

Gena A. Bunn:

–Well, there is an obligation from… on… upon defense counsel to pursue the remedies he’s entitled to, and to… to specifically request the informant status of any witness, yes, there is an obligation in a case such as this.

And the fact that trial counsel did not do that, at least precludes a–

John Paul Stevens:

Why is there such an obligation if the state rules require it?

This… we supposed to say we want to be sure you’ve complied with all the state rules that govern prosecutions?

Gena A. Bunn:

–But even assuming that… that violation, that is not… that does not support itself a finding of cause to the procedural default of Banks’ failing to develop this claim for years even though knowing of its existence.

Antonin Scalia:

Ms. Bunn, do you have any argument that this might not have made any difference?

Gena A. Bunn:

Yes, Your Honor, and again, several factors–

Antonin Scalia:

I… I suggest you might train your guns on that.

[Laughter]

Gena A. Bunn:

–Several factors play into that issue.

Again, just… just the pure impeachment value itself was… was weakened by the fact that there was no incentive.

But also the fact that Farr was heavily impeached already and that the informant status, weak as it was, was… was really merely cumulative.

Defense counsel had brought out, both on direct and then again on cross, his prior drug abuse, track marks, his denials during cross-examination, refuted by the defense witnesses, which included a denial that he acted as a police informant in… in another case for another jurisdiction.

Anthony M. Kennedy:

This isn’t… this isn’t what the prosecution told the jury, was it?

Gena A. Bunn:

No, Your Honor.

This is… this is from defense counsel.

And third, even without Farr’s testimony, the significant evidence of Banks’ future dangerousness.

Banks admitted at punishment that he was willing to abet Farr’s commission of future armed robberies by providing him with the weapon.

In fact, he was willing to drive.

David H. Souter:

But he did… is… is it correct that but for Farr there would have been no testimony that Banks would participate in those robberies, and there would have been no testimony that Banks and his accomplices would use the gun to eliminate any trouble that might come up during that.

Is that correct?

Gena A. Bunn:

Yes.

That is correct.

David H. Souter:

That’s pretty damning testimony, isn’t it?

Gena A. Bunn:

It is a piece of… of… of the state’s puzzle, but it… but given what is left, not material.

And again, the fact that he was–

David H. Souter:

It’s not material because it would not have, in effect, raised a serious question about the… the integrity of the result or the fairness of the trial?

Gena A. Bunn:

–Yes.

It would not have put the state’s punishment case in such a different light as to undermine the verdict.

Sandra Day O’Connor:

Well, but don’t… didn’t you have a defendant here without a prior criminal record, and… and the state is trying to prove future dangerousness and that this is a really bad actor.

I would have thought that went rather to the heart of the sentencing question.

Gena A. Bunn:

It was definitely favorable evidence to the state’s future dangerousness case, but it was not all that was there.

Stephen G. Breyer:

Well, you have there as well Mr. Jefferson, who said that Banks whacked him or hit him hard and happened to omit that he himself, Mr. Jefferson, had attacked Mr. Banks’ sister, which could be a reason why he had hit him.

Gena A. Bunn:

Well, the… Vetrano Jefferson’s testimony, though he did amend his version of the incident in post-conviction proceedings, he did not recant his testimony that Banks hit him across the face with a gun, but only that… and not that he had attacked Banks’ wife, but that he had… that he had had a verbal altercation with her.

And there was no physical… no physical threat whatsoever that Banks responded to by hitting him across the face with a gun, and this happened a week prior to the murder.

And again, this testimony indicated that Banks was known to carry a weapon on a regular basis in the weeks before the murder.

Gena A. Bunn:

And the murder itself, the unprovoked nature of it, the fact that Banks essentially lured a 16-year-old kid to a… an abandoned and secluded park near his home and shot him three times to steal his car.

And then… and then the fact that though… though Farr’s testimony was… was crucial on the limited issue of Banks’ willingness to participate himself in the armed robberies, it still… still the fact that Banks had it… and himself admitted… admitted at punishment that he was willing to abet Farr’s commission of murder and had, in fact, been willing to drive what would have been a six-hour round trip to Dallas in the middle of the night to procure that weapon to… to aid those–

Antonin Scalia:

He didn’t admit that… that he was willing to abet murder.

He just admitted he was willing to get the gun for robberies.

Gena A. Bunn:

–Yes.

Antonin Scalia:

Did he say specifically, in order that somebody can be killed?

He didn’t say–

Gena A. Bunn:

He did… he did testify in… in response to cross-examination by the prosecutor that he was willing to provide what could potentially be a death weapon in a robbery case.

And in the light of this future dangerousness evidence that remains, as well as the incremental impeachment value of Farr’s informant status within the context of the trial, former’s informant… Farr’s informant status wouldn’t have put the state’s case in such a different light as to undermine confidence in… in the jury’s verdict.

Again, the state’s duty to… to disclose in these cases is triggered by the materiality of the evidence, and in this case, Farr’s import… Farr’s informant status was not that kind of… of evidence.

It was not material evidence.

Unless there are no further questions.

Thank you.

William H. Rehnquist:

–Thank you, Ms. Bunn.

Mr. Kendall, you have two minutes remaining.

George H. Kendall:

Thank you, Your Honor.

Very briefly, on the Charles Cook claim, I… Ms. Bunn has conceded that jurors of reason would find debatable the rule 15 issue.

We would ask that if the Court agrees with that, that we not go back just to the Fifth Circuit, that the case be sent back to the court in Texarkana, the district court, for fact-finding on the underlying claim.

There’s not been any fact-finding whatsoever on that claim, and we think that would be, if the case is going back to the Fifth Circuit, that that would be entirely useful.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Kendall.

The case is submitted.

The honorable court is now adjourned until tomorrow at 10 o’clock.