Banks v. Dretke

PETITIONER:Delma Banks, Jr.
RESPONDENT:Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division
LOCATION:Meramec River

DOCKET NO.: 02-8286
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 540 US 668 (2004)
GRANTED: Apr 21, 2003
ARGUED: Dec 08, 2003
DECIDED: Feb 24, 2004

A. P. Carlton, Jr. – for the American Bar Association as amicus curiae
Gena Bunn – for respondent
Gena A. Bunn – argued the cause for Respondent
George H. Kendall – argued the cause for Petitioner
Lynn R. Coleman – for the American Bar Association as amicus curiae
Matthew W. S. Estes – for the American Bar Association as amicus curiae

Facts of the case

Delma Banks, Jr. was convicted of murder and sentenced to death in Texas state court in 1980. Sixteen years later Banks learned that one of the witnesses against him, Robert Farr, was a paid informant (a fact not stated during the trial). Charles Cook, another witness against Banks, claimed that he had made up much of his testimony in order to get other criminal charges against him dropped as part of a plea agreement.

In Brady v. Maryland the U.S. Supreme Court held that due process is violated if prosecutors suppress evidence favorable to a defendant that relates to guilt or punishment. Pointing to Brady and evidence the prosecution suppressed information on its ties to the two witnesses, Banks sought a writ of habeas corpus in federal court to overturn his conviction and get a new trial. The district court granted habeas relief with respect to Banks’ death sentence based on the state’s failure to disclose Farr’s informant status. However the district court refused to reverse the guilt verdict, rejecting Banks’ Brady claim relating to Cook’s testimony and Banks’ argument that Federal Rule of Civil Procedure 15(b) allowed the claim to be treated as if it were raised earlier.

The Fifth Circuit Court of Appeals reversed the district court’s decision to grant Banks relief as to his death sentence based on his Brady claim relating to Farr’s testimony. The Court held that Banks first had to press his claims in state court. The Court upheld the district court’s rejection of Banks’ claim relating to Cook’s testimony, holding that Federal Rule of Civil Procedure 15(b) does not apply to habeas proceedings.


Was the Fifth Circuit wrong to reject Banks’ claim relating to Farr’s testimony under Brady v. Maryland on the ground that such a claim must first be made in state court? Was the Fifth Circuit wrong to reject Banks’ claim relating to Cook’s testimony on the grounds that such a claim should have been raised earlier and that Federal Rule of Civil Procedure 15(b) does not apply?

Media for Banks v. Dretke

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

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

William H. Rehnquist:

The opinion of the Court in No. 02-8286, Banks versus Dretke will be announced by Justice Ginsburg.

Ruth Bader Ginsburg:

In a Texas Trial Court, the petitioner Delma Banks, Jr., was convicted of capital murder and sentenced to death.

The prosecutor during pretrial proceedings told defense counsel that the State would provide all the discovery to which Banks was entitled despite that understanding, the State withheld evidence that would have allowed Banks to discredit two key prosecution witnesses by showing their links to the police.

One of the two witnesses, Robert Farr, testified at both the guilt and penalty phases of Banks’ trial.

The State did not disclose to Banks that Farr was a paid police informant who had played a key role in the scenario leading to Banks’ indictment.

The prosecutor allowed Farr to testify untruthfully and without correction that he never spoke to any police officer about Banks’ case until a few days before trial.

Presenting the State’s penalty phase summation, the prosecution urged the jury to believe Farr calling his testimony open and honest, and of the utmost significance to the State’s plea for a capital sentence.

The other key witness, Charles Cook, testified only at the guilt phase.

Cook had been coached intensively by prosecutors and law enforcement officers in preparation for his testimony.

The transcript of a police-Cook interrogation revealed the coaching, but the prosecutor did not tell the defense that the transcript existed.

To direct appeal and state postconviction review proceedings, the State left undisclosed the police links to prosecution witnesses Farr and Cook.

When Banks alleged an State Court habeas petition that Farr was an informant, the State denied it.

The long suppressed evidence ultimately came to light through discovery and an evidentiary hearing ordered in a federal habeas proceeding, the Federal District Court granted Banks relief from the death penalty pointing to the State’s failure to disclose that witness Farr was a paid police informant.

The Court of Appeals for the Fifth Circuit reversed that determination.

Banks did not qualify for federal relief from the death penalty, the Court of Appeals ruled, because he had not documented his claims of prosecutorial misconduct in State Court and was therefore barred from introducing evidence of the state office’s misconduct in Federal Court.

The Fifth Circuit also denied Banks’ certificate of appealability on his claims that the prosecution had wrongfully withheld from the defense the transcript of the pretrial rehearsal of witness Cook.

We reverse both Fifth Circuit’s rulings.

When police or prosecutors conceal significant, exculpatory, or impeaching material, we hold, it is ordinarily incumbent on the State to set the record straight.

As to witness Farr’s informant status, it was Banks’ burden to show cause and prejudice to overcome his counsel’s failure to produce evidence of police links to Farr in State Court proceedings.

Banks succeeded in demonstrating the requisite cause.

He reasonably relied on the State’s representations made pretrial and repeated in state habeas proceedings that the prosecution had disclosed all relevant information.

We reject the State’s contention that Banks nevertheless should have attempted to unearth the truth.

A rule declaring prosecutor may hide defendant must seek, is not tenable in a system constitutionally bound to accord a defendant’s due process.

As to prejudice, Banks demonstrated reasonable probability of a different result in the penalty phase of the case had the jury known a prosecution witness Farr’s, collaboration with the police.

Showing cause and prejudice to overcome his procedural default, today’s opinion explains Banks at the same time established the essential element of his claim, the prosecutorial misconduct infected the death penalty adjudication.

We also reverse the Fifth Circuit’s ruling on Banks’ claim of guilt phase prosecutorial misconduct.

A claim that rested on the State’s suppression of the transcript showing that witness Cook had been coached.

The Court of Appeals, we hold, should have issued the certificate of appealability on the question whether Banks should be deemed to have pleaded the Cook transcript claim given federal rule of Civil Procedure 15(b)’s provision for amendment of a party’s pleading to conform to the proof.

Justice Thomas has filed an opinion concurring in part and dissenting in part in which Justice Scalia joined.