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

Banks v. Dretke

Media for Banks v. Dretke

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

Audio Transcription for Oral Argument - December 08, 2003 in Banks v. Dretke

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--