Justices Void Death Sentence, Citing Prosecutor Misconduct

The Supreme Court, citing serious prosecutorial misconduct, on Tuesday overturned the death sentence of a Texas man who last March came within nine minutes of execution.

The high court ruled, 7 to 2, that Delma Banks Jr. was entitled to a new penalty phase trial; the justices also ruled unanimously that Banks, who has been on death row for 23 years, is entitled to appeal the murder conviction itself.

Banks’ case gained national attention last year when an unusual alliance of attorneys and retired judges -- including former FBI Director William S. Sessions -- said in a friend-of-the-court brief that it would be a “miscarriage of justice” to permit Texas to execute him. The high court granted a stay after Banks had been served his last meal.

In issuing their opinion Tuesday, the justices said prosecutors had failed to reveal to the defense and jury the fact that the key witness against Banks during the penalty phase was a paid police informant.

The high court also found that prosecutors may have violated Banks’ constitutional rights during the first phase of the trial, in which he was found guilty of murdering Richard Wayne Whitehead, his former co-worker at a fast-food restaurant.

Prosecutors had argued that Banks shot Whitehead in 1980 to steal his car. Banks, now 44, denied committing the murder during an interview with The Times in 2000.

Banks’ appellate lawyers -- led by George Kendall of the NAACP Legal Defense Fund -- showed that prosecutors knew critical witnesses against Banks had lied about deals they’d made with the police in return for their testimony. The defense also presented evidence that prosecutors had concealed the witnesses’ ties to the police through years of appeals, Justice Ruth Bader Ginsburg noted in her majority opinion.

“When police or prosecutors conceal significant exculpatory or impeaching material, it is ordinarily incumbent on the state to set the record straight,” Ginsburg wrote.

During oral arguments in the case in December, Gena A. Bunn of the Texas attorney general’s office conceded that there were problems in how the Texarkana prosecutors handled the case, but contended they were not “material.” Moreover, she said, Banks’ attorneys had failed to present the evidence they cited in a timely fashion.

Ginsburg and other justices took issue with Bunn’s stance. “Why wasn’t it the obligation of the prosecution, having deceived the jury and the court, to come clean?” Ginsburg asked Bunn in December. On Tuesday, Ginsburg wrote: “A rule declaring ‘prosecutor may hide, defendant must seek’ is not tenable in a system constitutionally bound to accord defendants due process.”

Ginsburg’s opinion was joined by Chief Justice William H. Rehnquist and Associate Justices John Paul Stevens, Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter and Stephen G. Breyer.

Justices Clarence Thomas and Antonin Scalia dissented, maintaining that even if the jurors knew that witness Robert Farr had lied about his relationship to the police, they still would have sentenced Banks to death. “The jury knew that Banks had murdered a 16-year-old on a whim,” had attacked a family member “and was willing to assist ... in committing armed robberies,” Thomas wrote.

Nonetheless, Thomas and Scalia joined the other seven justices in ruling that Banks was entitled to appeal his murder conviction. No physical evidence tied Banks to the crime.

Charles Cooks, one of the key witnesses against Banks in the first phase of the trial, was a twice-convicted felon who was facing arson charges that could have yielded a life sentence when he testified that Banks had confessed to the murder. Soon afterward, the arson charges were dropped by prosecutors. Cooks recanted his testimony in 1999.

Banks’ case now goes back to the U.S. 5th Circuit Court of Appeals on the penalty phase issue.