Justices review sentence in Texas death row case

Prosecutor misconduct, poor legal representation alleged in murder trial

December 09, 2003|By Jan C. Greenburg | Jan C. Greenburg,CHICAGO TRIBUNE

WASHINGTON -- Expressing concern about the integrity of the criminal justice system, several Supreme Court justices indicated yesterday that they believe the court should throw out the sentence of one of the nation's longest-serving death row inmates because of alleged misconduct by prosecutors at his trial.

Taking up the case of inmate Delma Banks Jr., the justices seemed troubled by assertions that prosecutors had failed to provide key documents and information to Banks' lawyers that could have made the difference between life and death.

Several justices, including moderate Justice Anthony M. Kennedy, sharply questioned a lawyer for the state of Texas after she argued that any deficiencies in Banks' trial made no difference to the outcome. She said prosecutors did not lie and had disclosed ample information to Banks' lawyers, and that it was too late for him to raise the issue now.

"So, you want us to say a defendant relies at his peril on the representations of prosecutors?" Kennedy asked.

George Kendall, a lawyer with the NAACP Legal Defense and Education Fund who argued on Banks' behalf, told the justices that prosecutors had concealed documents and misled Banks' trial lawyers about key witnesses. That misconduct warranted either a new trial for Banks or a new sentencing, he said.

Kendall also argued that Banks' legal representation during the trial was inadequate and that the lawyer failed to investigate or prepare witnesses who could have convinced a jury to spare Banks' life.

Banks' supporters include a group of former prosecutors and judges who say they are concerned about egregious failings by the prosecution and defense counsel. They say this case exhibits two of the most prevalent flaws in the death penalty system: the failure of prosecutors to disclose evidence that could spare a defendant and the inadequacy of lawyers representing those facing the death penalty.

The case comes as the court is scrutinizing the death penalty more closely, with a particular focus on the quality of legal representation for capital defendants. Last term, the court said a Maryland death row inmate did not receive effective assistance of counsel, as guaranteed by the Constitution, when his lawyers failed to thoroughly investigate his background.

That ruling strongly reinforced the principle that lawyers must do the hard work necessary to represent capital defendants.

Justices Sandra Day O'Connor and Ruth Bader Ginsburg also have indicated publicly that they are concerned about whether defendants facing a death sentence are adequately represented. O'Connor has suggested that lawyers representing capital defendants be required to meet minimum standards.

Banks contends that his lawyers also failed to do their job, in violation of his sixth Amendment right to counsel, during the sentencing phase of his trial. Banks' lawyers failed to question and prepare witnesses, including Banks' parents, who could have persuaded a jury to spare his life, Kendall said yesterday.

Banks was convicted and sentenced to death in 1981 for murdering a 16-year-old acquaint ance in order to steal his car. Critical to his conviction and death sentence was the testimony of two witnesses, both of whom lied on the stand. Instead of correcting the testimony, prosecutors told the jury that both had been truthful.

A Texas federal court judge threw out Banks' sentence three years ago. The judge concluded that Banks was entitled to a new sentencing hearing because prosecutors failed to disclose that one of the witnesses was a paid informant and that the other had been extensively interviewed by law enforcement officials -- critical points that the witnesses had denied during the trial.

But a federal appeals court disagreed and reinstated the sentence. It said Banks should have made some of those points earlier, in a state court challenge. The appeals court held that the disclosed evidence was immaterial and would not have made a difference to a jury, and concluded that Banks was not denied effective assistance of counsel.

In arguments yesterday, the justices spent most of their time on the prosecutors' alleged misconduct. Several justices, most notably Ginsburg and Justice Stephen G. Breyer, appeared worried that a ruling upholding Banks' death sentence would reduce prosecutors' obligations to disclose exculpatory evidence.

The Chicago Tribune is a Tribune Publishing newspaper.

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