Correspondence from Lani Guinier to Robert Pear (New York Times) Re: Major v. Treen

    IN THE SUPREME COURT OF THE UNITED STATES

No.

DELMA BANKS, J r ,
Petitioner,

-vs-

JANIE COCKRELL, Director,
Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

An Execution Date Is Set For March 12, 2003

Clifton L. Holmes 
P. O. Drawer 3267 
Longview, TX 75601 
903-758-2200

Elaine R. Jones
Director Counsel 

Theodore Shaw
Deputy Director Counsel 

George H. Kendall 
Janai S. Nelson

Assistant Counsel 
NAACP Legal Defense 
& Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013 
212-965-2200

Counsel for Mr. Banks



CAPITAL CASE

QUESTIONS PRESENTED

In this Texas capital case, the Fifth Circuit (in an unpublished order) overturned the district 

court’s issuance o f habeas corpus relief as to Petitioner Delma Banks’s sentence Banks contends 

that the Court o f Appeals reached this result only by misapplying and misinterpreting well-established 

precedents of this Court regarding, inter alia, prosecutorial suppression of material evidence 

favorable to a defendant, prosecutorial misuse o f peremptory challenges to exclude African 

Americans from Banks’ petit jury, and trial counsel’s ineffective assistance o f counsel. Specifically, 

Banks seeks review by this Court o f the following questions:

1. Did the Fifth Circuit commit legal error in rejecting Banks’ Brady claim —  that the 

prosecution suppressed material witness impeachment evidence that prejudiced him in the penalty 

phase o f his trial — on the grounds that:

(a) the evidence supporting the claim was procedurally defaulted, notwithstanding the 

fact that, like in Str.ckler v. Greene, 527 U S. 263 (1999), there was no reasonable basis for 

concluding that counsel for Banks could have discovered the suppressed evidence prior to or 

during the trial or state post-conviction proceedings; and

(b) the suppressed evidence was immaterial to Banks’ death sentence, where the panel 

neglected to consider that the trial prosecutors viewed the evidence to be o f “utmost 

importance” to showing a capital sentence was appropriate7

2. Did the Fifth Circuit act contrary to Strickland v. Washington, 466 U S. 668 (1984) and 

Williams v. Taylor, 529 U S. 362 (2000), where it weighed each item of mitigating evidence 

separately and concluded that no single category would have brought a different result at sentencing 

without weighing the impact o f the evidence collectively?



3. Did the Fifth Circuit act contrary to Harris v. Nelson, 394 U.S. 286 (1969) and Withrow 

v. Williams, 507 U.S. 680 (1993) in holding that Fed. R. Civ. P. 15(b) does not apply to habeas 

proceedings because “evidentiary hearings” in those proceedings are not similar to civil “trials”'’

4. Did the Fifth Circuit err in refusing to consider Banks’ jury discrimination claim — virtually

identical to one this Court is considering in Miller-El v. Cockrell (No. 01-7662)__based upon its

conclusions that.

(a) the state courts’ rejection o f that claim rested upon an adequate and independent 

state ground; and that

(b) there was inadequate prejudice to Mr. Banks’s interests to excuse his counsel’s 

failing to present, at trial, direct and statistical evidence of the prosecution’s consistent policy 

of using peremptory challenges to keep African Americans off felony juries?



TABLE OF CONTENTS

TABLE OF A U TH O RITIES..............................................................................................  -

OPINIONS B E L O W ................................................................................................  j

JU R ISD IC TIO N ........................................................................................................ ?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE C A S E .........................................................................................  2

1. State Trial Court Proceedings ................................................... ->

HOW THE FEDERAL QUESTIONS WERE RAISED BELOW .............................................. 8

a. Suppression o f Impeachment Evidence of Key Penalty Witness Farr 8

b. Ineffective Assistance o f Counsel at Penalty P h a se ....................................... 11

c. Suppression o f Impeachment Evidence o f Key Guilt Phase Witness Cook . . .  19

d Racial Discrimination in Jury S e lection ................................................  22

REASONS WHY THE WRIT SHOULD BE G R A N TED ...........................................................  23

ARGUMENT ..............................................................................................................  25

The Fifth Circuit’s Reversal on the Farr Claim Is Entirely At Odds With Strickler 
v. Greene And Precedents from Other Circuits ................................................  25

a. The panel’s “cause”determination is inconsistent with Strickler
v. G reene .....................................................................  25

b. Materiality Determination Is Also Inconsistent with Settled
L a w ......................................................................................................... 28

The Panel Opinion Reversing the Grant o f Relief Based on Counsel’s Ineffectiveness 
at the Penalty Phase Ignores Settled Precedent to the C ontrary ........................... 30



a. The panel decision is flatly inconsistent with Williams v.
Taylor ................................................................................................... 30

The Panel Opinion Denying A Certificate o f Appealability On Whether Fed. R. Civ. 
P. 15(b) Applies To Evidentiary Hearings In Habeas Proceedings Is Sharply 
Inconsistent with Governing Law ...........  ............................................................33

The Panel’s Holding That Mr. Banks’ Swain Claim Is Defaulted Conflicts With 
Established L a w .............................................................................................................35

a. No Firm Rule Required Swain Objection at Trial ......................36

b. The Panel’s “Prejudice” Determination is Also Erroneous . . .  38

CONCLUSION.....................................................................................................................................  41

ii



TABLE OF AUTHORITIES

FEDERAL CASES

Banks v. Texas,
464 U.S. 904 (1 9 8 3 )..............................................

Batson v. Kentucky,
476 U.S. 79 (1 9 8 6 )................................................

Brady v. Maryland
373 U.S. 83 (1 9 6 3 )................................................

Browder v. Director, Illinois Department o f Corrections, 
434 U.S. 257 (1 9 7 8 )........................................

Calderon v. Ashmus,
523 U.S. 740 (1 9 9 8 )..............................................

Carter v. Bell,
218 F.3d 581 (6th Cir. 2000) ...............................

Crawford v. Head,
2002 U.S. App. LEXIS 23420 (1 1th C ir.) ..........

Crivens v. Roth,
172 F.3d 991 (7th Cir. 1999) ................................

East v. Johnson,
123 F.3d 235 (5th Cir. 1999) ................................

Ford v. Georgia,
498 U.S. 411 (1 9 9 1 )...............................................

Giglio v. United States,
405 U.S. 150 (1 9 7 2 )...............................................

Harris v. Nelson,
394 U.S. 286 (1 9 6 9 )...............................................

Hazelwood School District v. United States,
433 U.S. 299 (1 9 7 7 ).................

iii

................  8

......37,41

....  passim

...........  34

...........  34

...........  33

...........  28

...........  29

..........  30

24, 36, 38

..........  29

.... passim 

..........  41



37

James v. Kentucky,
466 U.S. 341 (1 9 8 4 )...............

Johnson v. Mississippi,
486 U.S. 578 (1 9 8 8 )................

Kyles v. Whitley,
514 U.S. 4 1 9 (1 9 9 5 )................

Lockett v. Anderson,
230 F.3d 695 (5th Cir. 2000) ..

McFarland v. Scott,
512 U.S. 849 (1 9 9 4 )................

Miller-el v. Cockrell,
No. 01-7662 ..............................

Miranda v. Arizona,
384 U.S. 436 (1 9 6 6 )................

Reutter v. Solem,
888 F.2d 578 (8th Cir. 1989) ...

Scott v. Mullin,
303 F.3d 1222 (10th Cir. 2002)

Slack v. McDaniel,
529 U.S. 473 (2 0 0 0 ).................

Strickland v. Washington,
466 U.S. 668 (1 9 8 4 ).................

Strickler v. Greene,
527 U.S. 263 (1 9 9 9 ).................

Swain v. Alabama,
380 U.S. 2 0 2 (1 9 6 5 )..................

United States v. Scheer,
168 F.3d 445 (11th Cir. 1999) ..

37

....... 28

....... 33

.....  34

. 24,41

...... 35

...... 29

...... 28

.....  41

passim

passim

passim

30

IV



40, 41

Village o f Arlington Heights v. Metropolitan Housing Development Corp 
429 U.S. 252 (1 9 7 7 )....................................................................... ”

Washington v. Davis,
426 U.S. 229 (1 9 7 6 ).........................................................................

White v. Helling,
194 F.3d 937 (8th Cir. 1999) ...........................................................

Williams v. Taylor,
529 U.S. 362 (2 0 0 0 )........................................................................

Williams v. Taylor,
529 U.S. 420 (2 0 0 0 )...........................................................

Withrow v. Williams,
507 U.S. 680 (1 9 9 3 )..................................................

40

28

passim

..........  28

24, 35, 36

STATE CASES

Banks v. State,
643 S.W.2d 129 (Tex. Crim. App. 1982) 

Chambers v. State,
568 S.W.2d 313 (Tex. Crim. App. 1978) 

Ellason v. State,
815 S.W.2d 656 (Tex. Crim. App. 1991)

Ex Parte Haliburton,
755 S.W.2d 131 (Tex. Crim. App. 1988)

Matthews v. State,
768 S.W.2d 731 (Tex. Crim. App. 1989) 

Williams v. State,
773 S.W.2d 525 (Tex. Crim. App. 1988)

FEDERAL STATUTES

. 8 

38 

29 

38

37

38

28 U.S.C. §1254 (1)

v



Fed. R. Civ. Pro. 15(b) passim

Rules Governing Section 2254

vi



IN THE SUPREME COURT OF THE UNITED STATES

No.

DELMA BANKS, Jr,
Petitioner,

-vs-

JANIE COCKRELL, Director, 
Respondent.

On Petition for Writ o f Certiorari to the 
United States Court o f Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Delma Banks Jr., respectfully requests that this Court issue a writ of certiorari 

to review a decision of the United States Court o f Appeals for the Fifth Circuit.

OPINIONS BELOW

The decision o f the United States Court of Appeals for the Fifth Circuit, issued on August 

20, 2002, is unpublished and is attached as App. A. The unreported decision of the United States 

District Court, issued on August 18, 2000, is attached as App. B. The report and 

recommendation o f the Magistrate Judge, also unpublished, issued on May 11, 2000, is attached 

as App. C. The unreported decision o f the Texas Court of Criminal Appeals, issued on January 10, 

1996, is attached as App. D. The unreported Findings o f Fact and Conclusions o f Law entered on 

July 22, 1993 by the 102nd Judicial District Court, Bowie County, are attached as App. E. The 

unreported Order o f the Texas Court o f Criminal Appeals, entered on March 3, 1993, is attached

1



as App. F. The unpublished Findings o f Fact and Conclusions o f Law, entered on February 22, 

1993 by the 102nd Judicial District Court, Bowie County, are attached as App. G. The Order of 

the United States Court o f Appeals for the Fifth Circuit denying rehearing on September 23,

2002, is attached as App. H. The October 2, 2002 Order o f the 102nd Judicial District Court, 

Bowie County, setting Mr. Banks’ execution for March 12, 2003 is attached as App. I.

JURISDICTION

The Court o f Appeals’ judgment was entered on August 20, 2002. A timely petition for 

rehearing was denied on September 23, 2002. The jurisdiction of this Court is invoked pursuant 

to 28 U.S.C. §1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth, Eighth and Fourteenth Amendments to the United States 

Constitution as well as the provision o f the federal habeas statute concerning issuance of 

certificates of appealability. Those provisions are supplied in App. J.

STATEMENT OF THE CASE

1. State Trial Court Proceedings

On Monday, April 14, 1980, the body of sixteen-year-old Richard Whitehead was found in 

a Nash, Texas park at roughly 10:00 a m. Tr. Ex. C-2 at 1. An initial investigation established that 

the last time he had been seen alive was the previous Friday evening, April \ \  . Id. at 2. Two 

female acquaintances o f Whitehead told police he had been with a 21- year old African American 

male, later identified as Delma Banks, Jr. An individual near the park reported that he was 

awakened by loud noises that could have been gunshots at roughly 4:00 a m. on Saturday, April 

12. Id. at 5.

2



Police surveillance o f Banks during the next week yielded no incriminating evidence. Id. 

at 6. Deputy Sheriff Huff, the lead investigator, thereafter contacted police informant Robert Farr 

and told him he would pay him $200 if Farr could obtain Banks’ gun. Tr. at 87-89; Tr Ex B-01 

at If 7. Farr agreed and told Banks he needed a pistol to commit robberies. Farr persisted in the 

face o f Banks’ refusal until Banks finally agreed. Tr. Ex. B-01 at 8. Banks said they would have 

to go to Dallas to get a gun. Id. On April 23, Farr, Banks and Marcus Jefferson drove to Dallas 

after Farr tipped off police about the trip. Id. at 9-10; Tr. Ex. C-2 at 6. Bowie and Dallas 

County authorities monitored the trip, observed the car stop at a south Dallas home, and 

witnessed Banks go to the front door. Tr. Ex. C-2 at 6. After a short time, Banks returned to the 

car and drove away. Id. Within minutes, officers stopped the car. Tr. Ex. B-01 at U 10. All three 

men were taken into custody and a .22 caliber pistol was seized. Tr. Ex. C-2 at 7. The next 

morning, Farr and Jefferson were released.

Deputy Huff immediately recognized that the seized .22 was not the murder weapon. Id. 

Before dawn, he and other officers returned to the south Dallas home, entered and confronted the 

occupant, Charles Cook. Tr. Ex. C-2 at 7. They spoke to Cook for forty-five minutes, informed 

him that Banks was wanted for Whitehead’s murder and strongly suggested he cooperate. This 

encounter thoroughly frightened Cook, who was on probation Tr. at 91. Later, police drove 

Cook to police headquarters where he provided a statement in which he asserted: (1) Banks had 

stayed with him on the weekend o f April 12 and was driving a car that looked like Whitehead’s 

Mustang; (2) during the course o f the weekend Banks said he had killed a white boy; (3) Banks 

left the car and a .25 caliber pistol with Cook to discard; (4) Cook later abandoned the car in west 

Dallas and sold the gun to a neighbor. Tr. 142, Tr. Ex. B-02 at 1, 3. Cook was then transported

3



back to his home and was directed by police to go to the neighbor’s house and retrieve the .25 

caliber pistol. Tr. Ex. B-03 at 1. Cook did so. Officer Huff seized the pistol and submitted it for 

forensic testing. Tr. Ex. C-2 at 7.

On April 24, Banks was transported back to Bowie County. Id. He made no statements to 

police except to protest his innocence. The following day, he was formally charged with 

Whitehead’s murder. Tr. Ex. C-2 at 8. Within days, Banks’ parents retained Lynn Cooksey, a 

former District Attorney, to represent their son. Tr. at 210-11.

Prior to trial, the Bowie County District Attorney’s office wrote to counsel to advise that 

there would be no need to litigate discovery issues. The letter stated unequivocally that “we will, 

without necessity o f motions, provide your office with all the discovery to which you are 

entitled.” IS R at 13.

On August 15, 1980, Mr. Cooksey filed several standard pretrial motions, including one 

seeking discovery, 1 SR at 17-28, but did not seek a hearing date on a single motion prior to trial. 

On the first day of jury selection, he commented repeatedly on his lack o f preparation. He told the 

judge, “I’m not in possession of any information on any of the State’s witnesses.” 1 SR at 99.

Even though it had been provided to him a week earlier, Cooksey had not even read the State’s 

witness list. At this hearing, he had to request another copy. Id. at 103. After jury selection and 

just prior to the trial’s commencement, he again complained that the State had not turned over 

information about witnesses’ prior convictions. He said “I don’t have it yet and I cannot 

effectively cross-examine these people without it.” 7SR at 1901. Even after the trial began, he 

announced that he had “never been to the [crime scene],” nor viewed certain crime scene

4



photographs. Id. at 2003-2005. Moreover, he later reported that he had “not seen the ballistics 

report.” Id. at 2031.

Jury selection consumed several days. Near its end, Mr. Banks passed a note to Mr. 

Cooksey that stated “we need[] blackfs].” Pet. RE Tab J. Cooksey wrote in reply, “State will 

strike all blacks.”1 Id. The prosecution, as predicted, used four peremptory strikes to remove all 

African Americans from the qualified pool. Cooksey made no objection to these strikes and an all- 

white jury was seated.

At trial, Patricia Hicks and Patricia Bungardt identified Mr. Banks as the person with Mr 

Whitehead on the evening o f April 11. 9SR at 2150, 2154. Both reported no animosity between 

Mr. Banks and Mr. Whitehead. See id. at 2148.

Mike Fisher testified that he was awakened by two loud noises at roughly 4:00 a m. on 

Saturday morning. Id. at 2158. Pathologist DiMaio testified that Whitehead died from three bullet 

wounds, id., at 2390, but was not asked to opine on when Whitehead was shot.

Robert Farr testified that he accompanied Mr. Banks to Dallas to secure a pistol. He also 

testified that after Mr. Banks made a brief stop at Charles Cook’s house and returned to the car, 

Banks said that the .22 pistol he had just received from Cook was not his pistol; his was with a 

broad in West Dallas.” Id. at 2254-61, 2267-69. While Farr admitted that he was a user o f illegal 

drugs, he denied that he was a paid informant. Id. at 2274.

Charles Cook was the central witness during the guilt phase. He testified that Mr. Banks 

drove up in front o f his Dallas home at roughly 8:30 am . on Saturday, April 12, in a green

1 Cooksey was the former District Attorney of Bowie County and had left that office only twenty 
months prior to Mr. Banks’ trial.

5



Mustang, and that during the next two days he heard Banks confess to killing a white man in 

Texarkana. Id. at 2285-97. He also testified that at Mr. Banks’ direction, he sold a pistol Mr. 

Banks left with him and abandoned Banks’ car. Id. at 2303-05. Cook told jurors that he had 

spoken to no one in preparation o f his testimony. Id. at 2314. The prosecutors assured the jury 

that Mr. Cook’s testimony was completely truthful. 10SR at 2450.2

Lastly, firearms examiner David Jones testified that the bullets recovered from Mr 

Whitehead and the crime scene likely were fired from the .25 pistol retrieved from Bennie Lee 

Jones and submitted to the lab by Deputy Sheriff Huff. Id. at 2357-58.

The defense presented no evidence. Instead, it sought through cross-examination to show 

that neither Charles Cook nor Robert Farr were credible witnesses. The jury deliberated for

several hours, and just after 11:00 p.m. on September 30, convicted Mr. Banks of capital murder.

Id. at 2485.

The penalty phase convened the next morning. The state’s case for the death penalty and 

its belief that Mr. Banks would likely commit acts o f violence in the future rested entirely upon 

the testimony o f two witnesses: Vetrano Jefferson and Robert Farr. Jefferson, Mr. Banks’ 

common law brother- in- law, testified that an unprovoked Mr. Banks struck him with a pistol and 

threatened to kill him one week prior to the Whitehead killing. Id. at 2493-94. Farr returned to

2 Three other family members and a neighbor were called to corroborate minor portions of Mr 
Cook s blockbuster testimony. A sister, Carol Cook, confirmed that she met Mr. Banks that weekend, when 
he and Mr. Cook came to her home in a green Mustang. Id. at 2362-65. Mr. Cook's former wife, Ida Mae 
Martin, confirmed that she was with Mr. Cook when Mr. Banks appeared on that Saturday morning, that 
he stayed at their home during the weekend, and that she and Mr. Cook loaned Mr. Banks money for his 
bus ticket back to Texarkana. Id. 2338-42. Mr. Cook’s grandfather, Bennie Whiteurs, testified that Mr 
Banks stayed m the family’s home that weekend. Id. 2358. Finally, neighbor Bennie Lee Jones confirmed 
that he purchased a .25 pistol and other items from Mr. Cook shortly after Mr. Banks left Dallas. Id. 2356-

6



the stand and testified that the reason Banks had driven to Dallas on the evening of his arrest was 

so that Banks could reclaim his gun and commit armed robberies. Id. at 2500-02. Farr also

reported that Banks said the gun would allow him to take care o f any trouble that might arise 

during a robbery. Id.

The defense called several hastily assembled acquaintances o f Mr. Banks and his parents. 

Each testified briefly that Banks was a respectful, churchgoing young man. Id. at 2514-2531 Two 

additional witnesses were called to discredit Mr. Farr. James Kelley testified that he had recently 

driven Farr to a number o f doctors’ offices to fill phoney prescriptions, id. at 2540-50, and former 

Arkansas police officer Gary Owen testified that Farr had served as a paid informant in that state 

and was known as unreliable. Id. at 2557-58. Finally, Mr. Banks testified and maintained his 

innocence. He pointedly contested Farr’s account that he, rather than Farr himself, wanted the 

gun to commit robberies, and assured jurors he would live peacefully in prison if given a life 

sentence. Id. at 2566-69.

In closing, the prosecution argued that the evidence showed clearly that Mr. Banks would 

be dangerous in the future and that the special issues had been proven. Id. at 2578-82 Even 

though Farr had denied he was a paid informant, the prosecutor assured jurors that “he has been 

open and honest with you in every way . . ” 10R 2579. Moreover, the prosecutors told jurors 

that Farr’s testimony was o f “upmost importance” to their case. The defense argued briefly that 

the evidence was insufficient. Id. at 2590-95. The jury found the state’s evidence established the 

special issues and the judge imposed a sentence of death. Id. at 2598-2602.3

On direct review, the Texas Court of Criminal Appeals affirmed the conviction and death
sentence. Banks v. State, 643 S.W.2d 129 (Tex. Cnm. APP. 1982). This Court denied certiorari Banks v 
Texas, 464 U.S. 904 (1983).

7



HOW THE FEDERAL QUESTIONS WERE RAISED BELOW

This petition presents four issues, each o f which were raised in post-conviction 

proceedings.

a Suppression of Impeachment Evidence of Key Penalty Witness Farr

In a state habeas petition filed in January, 1992, Mr. Banks alleged that the State’s failure 

to disclose at trial that Robert Farr was a paid informant and that his testimony had been 

misleading violated due process. While the State filed a detailed response to every other claim 

raised in the petition, it made no response to this issue. Mr. Banks was unable to locate Mr. Farr 

to submit an affidavit or proffer o f evidence. Neither the trial court’s recommendation o f denial of

relief nor the Court o f Criminal Appeals’ order denying the writ made reference to this claim. See 

App. E & D.

Mr. Banks again pleaded this claim in his federal petition filed below. Because the state 

courts had not conducted an evidentiary hearing on this claim, he moved the court for discovery 

and for an evidentiary hearing. In support of these requests, Mr. Banks stated that his 

representatives had finally tracked down Robert Farr in California and Farr revealed for the first 

time in a declaration that he had been a paid informant in this case and that his critical testimony 

concerning Banks’ intent to commit robberies was false. 2R at 598, Ex. B. The Magistrate Judge 

granted a hearing on this issue.

Farr testified that he worked as an informant for various police agencies before, during 

and after Mr. Banks’ arrest and prosecution.4 These agencies included Texarkana law

, . FaJ ! S^eSt™0ny was by declaration. At the time of the hearing, he resided in California Pnor to
die hearing, Mr. Banks moved that he be permitted to depose Mr. Farr or submit his declaration in lieu of 
hve testimony for two reasons: (1) Farr did not want to return to Texarkana because he feared for his life

8



enforcement agencies. See Tr. Ex. B-l at 1. He was frequently paid for these services. Id  Law 

enforcement in Texarkana and elsewhere knew o f his use o f illegal drugs and practice o f falsifying 

prescriptions to procure drugs. However, officers never arrested him for these activities. Id  Farr 

testified that he became involved in this case after Deputy Huff demanded help. Id. at 2. Fan- 

testified that he believed that if  he did not agree to assist, Huff would have arrested him on drug 

charges and seen to his prosecution. Farr made clear that he was paid for his services in this case 

and that his damaging testimony about Banks wanting a gun so that he (Banks) could commit 

additional violent crimes was false. Moreover, he said he was under the influence of drugs when 

Banks was arrested in Dallas.5

given his pnor services as a police informant and (2) he was in poor health. The Director did not 
Mr. Farr be produced for cross-examination or seek to depose him.

5 Farr's declaration states as follows:

insist that

7. . . .  I told [Deputy Huff] that he would have to pay me monev right away for my help 
on the case. I think altogether he gave me about $200.00 for helpmg him. He paid me some 
of the money before I set Delma up. He paid me the rest after Delma was arrested and 
charged with murder. He said that the case was worth a lot more than that to him. He did 
not tell me at that time that Delma was a murder suspect in the case of Richard Whitehead 
He only told me that he wanted me to help him find Delma’s gun.

8^In order to help Willie Huff, I had to set Delma up. I told Delma that I wanted to rob a 
pharmacy to get drugs and that I needed his gun to do it. I did not really plan to commit a 
robbery but I told Delma this so that he would give me his gun. I talked a lot about my 
plan to Delma and finally convinced him that I needed his gun for the robbery. That's when
Delma told me his gun was in Dallas. I convinced Delma to drive to Dallas with me to eet 
the gun. 6

9. After I convinced Delma to give me his gun. I called Willie Huff and told him that 
Delma and I were going to drive to Dallas to get the gun. I knew that Willie would follow 
us to Dallas because he told me during that conversation that he would follow us This was 
the third or fourth conversation I had with Willie.

10. Delma, Marcus Jefferson and I drove to Dallas in my car. I had drugs with me When 
we got to Dallas, we stopped at a man's house and Delma went to the house and came back 
with a gun. After we drove away from the house, our car was pulled over by the police on

9



Id. Farr further testified that he left Texarkana shortly after Banks’ trial on the advice o f his law 

enforcement handlers who feared for his life. Consistent with these concerns, Farr testified that 

he hid out and would not have spoken with representatives o f Mr. Banks before he finally chose 

to do so in the fall o f 1996 (after the completion o f state post-conviction proceedings). Id.

Both prosecutor James Elliott and Deputy Huff" testified that the prosecution utilized Farr 

as an informant in Bank’s case. Tr. at 54, 86. Fluff also testified that Farr was paid roughly $200 

for his services. Id. at 88-89.

On May 11, 2000, the Magistrate Judge issued her report and recommended that the writ 

be granted on this claim. App. C at 44. The Magistrate Judge concluded that Mr. Banks’ sentence 

was constitutionally tainted by the suppression o f Farr’s paid informant status. She found that the 

evidence showed that at trial, “[t]he state attempted to portray Farr’s involvement with Banks as 

one o f an innocent acquaintance,” but that the record showed conclusively that he was a paid 

informant. Given the importance o f his testimony to the state’s case for a death sentence, she 

concluded Mr. Banks was entitled to relief.

Farr was one o f the only two witnesses called by the State during the punishment 
phase. Fie testified that he, along with Banks and Marcus Jefferson, traveled to 
Dallas to retrieve the gun so that Banks could commit several armed robberies.

the interstate. I was taken to the Dallas police station with Marcus. I don't know where
Delma was taken because he was in a different police car. I was allowed to leave. I wasn't 
charged with anything.

11. While I was in the Dallas police station, 1 saw Bowie County D A. investigator, 
Charlie Leathers. Fie told me that Delma was going to be charged with murder because 
they had found the murder weapon. I asked Charlie for money to help me get home and he 
gave me about $25.00. Charlie knew that I had convinced Delma to go to Dallas because 
Willie Huff had asked for my help. I knew that Charlie and Willie were working together 
on the investigation of Delma.

10



The clear purpose o f this testimony was to persuade the jury that Banks posed a 
continuing danger to society. Farr’s testimony was misleading and inaccurate. At 
no time did the State correct Farr’s erroneous testimony or announce Farr’s paid 
informant status. Moreover, the State placed great reliance on Farr’s testimony 
during the penalty phase. Indeed, the prosecutor characterized Farr’s punishment 
phase testimony as “o f the utmost significance,” because it helped establish that 
Banks posed a “danger to friends, and strangers alike.”

App. C at 43-44. The district court accepted this recommendation. App. B at 6.

The Fifth Circuit panel reversed. It concluded that the evidence relied upon below was 

defaulted because Mr. Banks had exercised insufficient diligence in attempting to locate either 

Farr or Deputy Huff during state habeas proceedings. App. A at 17-23. The panel did not cite or 

refer to Mr. Banks primary argument, based squarely upon Strickler v. Greene, 527 U S. 263 

(1999), that he was entitled to present this evidence below. Id. at 26-33. Alternatively, the panel 

held that the district court also erred in finding the evidence to be material. The panel’s analysis 

did not consider, inter alia, the fact that the trial prosecutors told the jury that Farr’s testimony 

was o f “utmost importance” to their case.

b Ineffective Assistance of Counsel at Penalty Phase

Mr. Banks alleged in the 1992 state habeas petition a multi-faceted claim, supported by 

proffered affidavits, that his attorney had failed to adequately prepare for and represent him at the 

penalty phase o f trial. Through affidavits from his parents, he proffered that trial counsel had 

conducted virtually no pretrial preparation for the penalty phase. When the guilty verdict was 

returned at 11:00 p.m., trial counsel asked Mr. Banks’ mother to make sure that ministers from 

the community were present the next morning to testify. She made phone calls into the early 

morning hours searching for witnesses. The proffer confirmed what the trial transcript suggested 

strongly -  that trial counsel never spoke to any of the witnesses who offered brief testimony, nor

11



conducted any poor investigation to learn o f evidence that would show that Mr. Banks would not 

be a danger in the future.

The proffered evidence, which was available at the time o f trial, showed that Mr. Banks 

had an extremely difficult upbringing, yet had no prior convictions. Mr. Banks’ father was an 

alcoholic who would abuse and terrorize the family when he drank. On repeated occasions, Mr. 

Banks father beat him and his mother, often forcing Mrs. Banks to flee the family home with her 

children for their safety. Even when his father was sober and remorseful, Mr. Banks could not 

have a normal relationship because his father worked at a chicken plant, and Mr. Banks was 

allergic to chickens. He was bom allergic to many substances and often suffered from horrid 

rashes or hives. In the heat o f Texas summers, he wore pants and long-sleeve shirts to hide his 

rash and hives and was the regular target o f ridicule from peers.

The proffer also contained the expert opinion o f psychologist Gregorio Pena. Dr. Pena 

found that Mr. Banks suffers from brain impairment that caused significant language and cognitive 

disabilities. He found that Mr. Banks had experienced numerous intense traumas during his 

childhood that were the direct result o f his dysfunctional family, and that his father had beaten and 

terrorized him. He confirmed that Mr. Banks suffered from chronic bleeding skin and hives 

throughout his life and that these “largely untreated symptoms” led directly to disfigurement. Dr. 

Pena also found that given Mr. Banks’ entire profile, he likely would be a nonviolent inmate in a 

highly structured environment such as prison.

The State presented affidavits from Cooksey and his investigator, Dennis Waters. Without 

making any factual determinations, the trial court recommended denial o f the claim and simply 

declared that “counsel for Appellant at trial did give Appellant effective assistance o f counsel

12



throughout all stages o f the trial proceedings, including voir dire and pre-trial.” App. G at 3. The 

Court o f Criminal Appeals summarily accepted this recommendation and denied relief App D

Mr. Banks raised the same claim in his federal habeas petition. Because the state court 

conducted no hearing and did not return any findings o f fact on this claim, the Magistrate Judge 

granted an evidentiary hearing at which Mr. Banks presented several witnesses.

Mr. Banks parents-Delma Banks, Sr., and Ellean Banks-testified that they hired Mr. 

Cooksey shortly after learning o f their son’s arrest. Cooksey sought a fee of $10,000, but they 

were able to pay him only $1,000. Tr. at 211. They also gave him some funds for the retention of 

investigator Waters. Prior to trial, they had only brief meetings with Cooksey and Waters that 

lasted “no longer than 10 to 15 minutes.” Id. at 212. At none of these meetings did Cooksey or 

Waters ask for information about Delma, Jr.’s life that would be considered mitigating or show he 

was unlikely to be dangerous in the future. Id. at 224. At one point during the trial, Cooksey 

asked Mr Banks, Sr. to meet with him, the judge and Delma, Jr., to discuss a plea offer that 

would have resulted in a life sentence in exchange for a plea of guilty to murder. Mr. Banks, Sr. 

agreed to the meeting but resisted urging his son to accept the deal when his son protested his 

innocence. Id. at 215. Mrs. Banks reported that during the guilt phase o f trial, Cooksey 

approached her and asked her to testify that Delma Jr., was home with her on Friday evening,

April 11. Id. at 225. She refused to do so, and when she did, Cooksey “took me by the arms and 

shook me and he said that what kind o f mother is you that will not tell a little white lie to save 

your son’s life. I told him I couldn’t lie.” Id.

Mrs. Banks testified she was present when the jury announced its verdict of guilty. The 

verdict was reached late at night. When she heard it, Mrs. Banks blacked out. Id. at 226. While

13



she waited to be taken to a hospital, Cooksey asked her to get as many ministers as she could in 

the courtroom the next morning. Id  at 225. At the hospital, she insisted that she be released She 

was discharged at about 1:00 a.m. Once home, she called ministers until 3:00 a m. to assure 

witnesses would be present for her son. Several showed up for the penalty hearing

Both Banks parents had testified briefly at the sentencing hearing. Each had been 

surprised, however, as neither had ever spoken to Cooksey about what information he wanted 

them to convey to the jury. Id. at 216-17; 227. At the federal hearing below, both provided 

detailed social history information about themselves and Mr. Banks that they did not have an

opportunity to tell the sentencing jury, and which would have shown he was unlikely to be a 

danger in the future.

Mr. James Kelly also testified at the federal hearing. Tr. at 232. Prior to trial, he had never 

been contacted by the defense nor told he would likely be a witness. Even on the morning o f the 

sentencing hearing, he had no idea he would be called as a witness. When deputies came to pick 

him up to bring him to court, he “was drunk.” Id  at 233. In court, he spoke for the first time to 

Cooksey, but in that minute or two, he did not learn why he was being called. Kelly’s trial 

testimony focused upon Robert Farr and Farr’s use of bogus prescriptions to secure drugs.

Vetrano Jefferson, another State’s trial witness, also testified below. At trial, he had 

testified that Mr. Banks was the aggressor in a fight they had shortly before Mr. Banks was 

arrested in this case. 10SR at 2493-94. At the federal hearing, Mr. Jefferson admitted that version 

was false and testified that he, not Mr. Banks, was the aggressor. “I was drunk that day . . .  and I 

was threatening my sister and he defended her. . . ” Tr. at 166. When asked who started the fight, 

Mr. Jefferson stated “I did.” Id. He also testified that he never spoke to Mr. Cooksey nor Mr.

14



Waters prior to trial and that he would have been willing to do so had they asked to speak with 

him about the incident. Id. at 168.

Mr. Banks also called Dr. Mark Cunningham, a forensic psychologist. Dr. Cunningham 

testified that he conducted a thorough psychological evaluation o f Mr. Banks. Tr. 279. This 

evaluation revealed, as had Dr. Pena's, that Mr. Banks grew up in a violent home environment 

due almost entirely to his father's chronic alcohol problem and repeated acts o f abusive behavior 

directed at Mr. Banks as well as the rest o f the family. Tr. at 265-70. He found that Mr Banks 

had chronic health problems and learning disabilities that prevented him from enjoying success in 

school. Id  at 272. He concluded that a detailed risk assessment o f Mr. Banks at time of trial

would have shown that there was little likelihood that Mr. Banks would commit additional acts of 

violence in the prison setting. Id. at 279-81

Additional evidence was presented to establish that the State’s theory o f guilt was easily 

assailable had counsel made the effort. Two witnesses, State’s trial witness Mike Fisher and 

Alabama medical examiner Dr. LeRoy Riddick, gave testimony to establish that one essential 

element o f the State’s case against Mr. Banks -  that Mr. Whitehead was shot at roughly 4:00 a m. 

on Saturday, April 12 -  was not true and could have been discredited had counsel conducted a 

minimally adequate investigation o f the underlying facts.

At trial, the State’s theory was that Mr. Banks was alone with Mr. Whitehead during the 

early morning hours o f April 12 in the Nash park where Mr. Whitehead’s body was found on 

April 14. According to this theory, Mr. Banks shot Mr. Whitehead three times at roughly 4:00 

a.m., took Whitehead’s car, then drove 180 miles to Dallas and arrived in front o f Mr. Cook’s

15



house by 8:15 or 8:30 am . The crucial timing o f the murder was purely inferential and came 

solely from the testimony o f Mike Fisher.

At trial, Mr. Fisher testified that he was asleep in a house that bordered upon the park in 

the early morning hours o f April 12 and was awakened by two loud noises. He testified that his 

companion told him it was a few minutes after 4:00 a m. He was unable to confirm the noises 

were, indeed, gunshots, but said they “sounded like gunshots.” 9SR at 2159. On cross- 

examination, defense counsel asked only whether he heard two loud noises. Id. at 2160 The 

prosecution asked the jury to conclude that Mr. Fisher, at 4:00 a.m., heard two of the three shots 

that fatally wounded Mr. Whitehead. 9SR at 2444.

At the hearing below, Mr. Fisher supplemented his trial testimony with significant 

qualifying information. He testified that he recalled being awakened by loud noises coming from 

the park behind the house. Tr. at 203. He said, however, that he knows nothing about guns, and 

thus could not be certain that the noises he heard were gunshots. Id. He conceded that the noises 

could have been firecrackers or car backfire, or even rifle shots (as opposed to pistol shots). 

Moreover, the noises could have occurred as early as 3:00 a m. and as late as 5:00 a m. Id  at 204.

Dr. Riddick s testimony focused upon the time of death issue. Tr. at 183-88. He explained 

that several factors identified during the autopsy strongly suggested that Whitehead was shot not 

at 4.00 a.m. on April 12, but late in the evening on April 12 or early in the morning on April 13 

(when Mr. Banks was in Dallas). Id  First, both Deputy Huff and Dr. DiMaio observed full rigor 

mortis in Whitehead’s body. Rigor mortis usually appears very soon after death, renders the body 

stiff within 12 to 24 hours after death, and then wanes 36 hours after death. Huff observed 

Whitehead roughly 54 hours after Fisher heard the loud noises, and DiMaio roughly 78 hours

16



afterwards. Second, Dr. DiMaio should have observed a drying o f the bps and a graying 

discoloration o f the lower abdomen, both o f which appear within 72 hours after death Id. at 187 

He looked for these symptoms but reported finding neither. Moreover, DiMaio reported no 

clouding of the cornea; he reported the corneas were clear. Id. This is highly unusual for someone 

who had died more than 72 hours prior to the autopsy. Based upon all o f these reported factors, 

Dr. Riddick concluded that the available forensic evidence overwhelmingly pointed toward a late 

Saturday evening or early Sunday morning time o f death. Id. at 197.6

The Director presented only one rebuttal witness -  Dennis Waters. Tr. at 334.7 Mr. 

Waters testified that he was hired by Mr. Cooksey as an investigator. Id. at 335. He testified that 

he interviewed a number o f witnesses. However, he could not recall their names. He testified that 

he visited and photographed the crime scene. Id. at 335-36. He said that Mr. Banks told him prior 

to trial that he had hitchhiked to Dallas during the early morning hours o f April 12 but was unable 

to provide Mr. Waters with the name of the individual who picked him up. Waters did not believe 

this account. Id. at 337. Waters conceded that Cooksey never requested that he take a social 

history from Mr. Banks, nor obtain school records. Id. at 340 He also agreed that his efforts 

focused mostly on the guilt rather than punishment phase of trial.

This evidence debunking the State’s time line was entirely consistent with expert evidence Mr 
Banks had proffered before the state court that suggested that Mr. Whitehead's car -  the means by which 
M r Banks purportedly traveled from the crime scene to Dallas -  could not have made the trip to Dallas 
without significant repair. Such repair services were not available during the early morning hours the State 
contends Mr. Banks drove the ailing car from Texarkana to Dallas. Pet. RE Tab H at 1-2.

7 Prior to the hearing, the Director had mdicated that he would likely call defense counsel Cooksey 
as his witness. The Director rested his rebuttal without calling Mr. Cooksey.

17



The Magistrate Judge concluded that the record clearly established that trial counsel failed 

to provide constitutionally effective assistance during the penalty phase. She found “an almost 

complete lack o f preparation,” as “counsel waited until the jury rendered its guilty verdict before 

instructing Bank’s (sic) mother to gather witnesses for the punishment phase, which began the 

following day.” App. C at 21-22. She further determined that “counsel did not interview any of 

these witnesses prior to their testifying. Trial counsel admitted during an in-chambers conference 

that he was ignorant o f the identity o f the punishment phase witnesses and their possible 

testimony. He had to ask his client, on the record, who the witnesses were and their relationship 

to Banks. Even this attempt to acquaint himself with the witnesses did not occur until several had 

already testified.” Id. She found the record contained ample evidence -  the severely traumatic 

childhood, the mental health limitations and the lack o f a criminal record -  to demonstrate the 

likelihood of a different result had the jury heard this evidence The recommendation was 

adopted by the district court.8

The Fifth Circuit panel reversed. The panel agreed with the district court that counsel’s 

performance was objectively unreasonable, but concluded that the district court erred in ruling 

that Mr. Banks had demonstrated adequate prejudice. App. A at 33-43. The panel reached this 

conclusion after dividing the mitigation evidence into several categories, and, after a discussion of 

each, concluding that each particular type, by itself, did not establish a reasonable probability o f a 

different result. At no time did the panel consider all the mitigation evidence collectively in

This ruling is consistent with the testimony of a prominent Texas capital trial attorney Mr Banks
PTT f f ^ °  T med 46  reCOrd showed “  abJect f£ulure o f trial counsel to both investigate the case 
and defend his client and ample mitigation evidence that would have been persuasive with Texas jurors to 
reject a finding that Mr. Banks would likely commit future acts of violence.

18



reaching this conclusion, as had the district court, and as required by Strickland v. Washington 

466 U.S. 668 (1984) and Williams v. Taylor, 529 U.S. 362 (2000).9

c Suppression of Impeachment Evidence of Key Guilt Phase Witness Cook

Mr. Banks alleged in the 1992 state habeas petition that the State, in violation o f due 

process, had suppressed impeachment evidence concerning Charles Cook including evidence that 

Cook had made a deal for his testimony that would result in the dismissal o f serious charges 

pending against him in Dallas. Representatives o f Mr. Banks located Cook and he told them that 

he did have a deal for his testimony and that he had rehearsed his testimony prior to taking the

stand But Cook refused to sign an affidavit and refused to cooperate further. Mr. Banks was able 

to proffer only the unsigned affidavit of Cook.

The State responded by declaring that there was no deal, and filed supporting affidavits 

from prosecutor Elliott and Deputy Huff. It failed to disclose other impeachment material. The 

court found that “there was no agreement between the State and the witness Charles Cook.” App. 

G at 2. This finding was accepted by the Court o f Criminal Appeals. See App. D.

In his federal petition, Mr. Banks alleged Brady material concerning Charles Cook was 

suppressed. Thereafter, his representatives were able to speak with Cook again, and Cook 

revealed for the first time, inter alia, that significant portions of his testimony were false and were 

given under pressure from law enforcement officials. Directly contradicting his trial testimony, 

Cook stated his misleading testimony had been heavily rehearsed prior to trial. Id. On the basis of

Further, the panel found that some of the evidence Mr. Banks presented at the federal hearing was 
unexhausted and thus could not be considered. It so held with regard to testimony from Dr. Cunningham 
and state s witness Vetrano Jefferson. &

19



his affidavit and corroborative affidavits from two other state witnesses, Mr. Banks moved the 

court for discovery and for an evidentiary hearing. The Court granted these motions.

In compliance with the discovery order, the District Attorney’s office turned over, inter 

alia, a 74-page interview o f Charles Cook by law enforcement officials transcribed shortly before 

trial. The transcript, which had never been disclosed previously, contained considerable 

impeachment material.10 Both Mr. Banks and the Director confirmed in pre-heanng submissions 

that the transcript would be introduced into evidence. Prior to the hearing, the Court entered an 

order to clarify the issues on which the parties could submit testimony. One such issue was

whether the trial prosecutors had failed to disclose impeachment evidence concerning key gu.lt 

phase witness Charles Cook.

At the hearing, the transcript o f the September, 1980 interview o f Cook was offered into 

evidence and received considerable attention. Tr. Ex. B-04. Prosecutor Elliott confirmed that this 

document was generated during interviews conducted shortly before trial. He identified 

handwritten notes on several pages and identified the writing as that of his co-counsel, Raffaelli, 

and stated that Raffaelli possessed the transcript at trial. Tr. at 45-47.11 Elliott conceded that the 

transcript was not turned over to the defense prior to or during trial. Tr. at 47. The trial record 

indicates that only Mr. Cook’s April, 24, 1980 statement to police was disclosed at the conclusion

t 5  Sh°'*ec;  for ^ a t Cook could not keep his story straight on even basic events and
repeatedly described significant events differently from his April. 1980 statement. Throughout the ’ 
interview, law enforcement officials mocked his credibility. Pet. RE Tab F

n
below.

Mr. Raffaelli was the elected District Attorney at the time of trial. He died pnor to the hearing

20



of Cook s direct testimony. 9SR at 2312. Mr. Elliott testified he elected to disclose the lengthy 

transcript to Mr. Banks only to comply with the Magistrate Judge’s discovery order. Tr at 69

Charles Cook testified that he spoke with law enforcement extensively about his testimony 

prior to trial. Tr. at 135. He also stated that much of his trial testimony was rehearsed and that 

key portions were not truthful. Tr. at 137-38, 144-46.

Even though Mr. Banks extensively briefed this issue, the Magistrate Judge failed to 

adjudicate this claim. Mr. Banks filed a timely objection to this failure. On August 18, 2000, the 

District Court also refused to adjudicate the claim, concluding that Mr. Banks should have 

formally amended his petition after receiving disclosure o f the pretrial statement, and that the 

issue had not been tried by consent per Federal Rule o f Civil Procedure 15(b). The Court 

thereafter rejected Mr. Banks’s motion to modify or amend the judgment. 5R at 1209-17, and 

further denied issuance o f a Certificate of Appealability, (COA).

The Fifth Circuit panel also refused to issue a COA. The panel held that Mr. Banks had 

failed to demonstrate that the question o f whether an “evidentiary hearing” in a habeas proceeding 

is the functional equivalent o f a “trial” for FRCP 15(b) purposes is one that jurists o f reason 

would find debatable. App. A at 48-52.

d Racial Discrimination in Jury Selection

Mr Banks alleged a Swain v. Alabama, 380 U S. 202 (1965), jury discrimination claim in 

the 1992 state petition and proffered voluminous statistical and testimonial evidence 

demonstrating that the District Attorney’s office had for years routinely and systematically 

excluded African Americans from felony jury service by peremptory challenge. In February, 1993, 

the state trial court recommended that relief be denied without an evidentiary hearing. App. G. at

21



2-3. Mr. Banks appealed, and the Texas Court o f Criminal Appeals ordered the trial court to hold 

an evidentiary hearing on this claim. App. F at 1

At the evidentiary hearing, Mr. Banks presented statistical, expert and direct evidence 

establishing that during the six-year period leading up to his trial, from 1975 through 1980, Bowie 

County prosecutors accepted more than 80% of qualified white jurors in felony trials but 

peremptorily struck more than 90% of similarly qualified African American jurors. Several 

attorneys who represented criminal defendants testified that prosecutors routinely struck black 

jurors. The evidence also showed that prosecutors habitually utilized race-coded jury strike 

sheets. Trial counsel, the former elected District Attorney, testified that he did not object to the 

exclusion of African American jurors from Mr. Banks’ jury because he believed there was no legal 

basis for a Swain challenge because he was aware o f one case in which the prosecution had 

allowed blacks to sit on a felony jury. The state proffered reasons, which it claimed were race- 

neutral, for striking each o f the African American jurors.

The state habeas court rejected Mr. Banks’ Swain claim Although it concluded that the 

evidence from 1979 and 1980 was sufficiently strong to establish a prima facie case of 

discrimination, it believed that the prosecutor’s articulation o f race neutral reasons for the four 

peremptory strikes in Mr. Banks’ case sufficiently rebutted the prima facie showing. App. E at 5,

9. The court deemed the data from 1975-1978 to be irrelevant because the District Attorney 

prosecuting Mr. Banks was not in office then. App. E at 5. It also found trial counsel’s failure to 

object defaulted the claim. Id. at 2-3. On the basis o f these findings, the Court o f Criminal 

Appeals denied relief. App. D at 1.

22



Mr. Banks raised the claim in his federal petition. The Magistrate Judge permitted him to 

submit two affidavits to supplement the record made before the state court. The district court 

denied relief after concluding it was procedural^ defaulted, and refiised to issue a COA. App. B 

at 4.The panel below also refused to issue a COA because it found the claim defaulted. It held that 

while Mr. Banks had established “cause” for counsel’s failure to timely object, the state court’s 

determination that the prosecution’s justifications for striking the four jurors were race-neutral 

foreclosed a finding of “prejudice” to overcome the default. App. A at 63-74.

REASONS WHY THE WRIT SHOULD BE GRANTED 

This case warrants review for a number o f substantial reasons. First, the Fifth Circuit’s 

reversal o f relief on the Farr issue conflicts sharply with Stickler  v. Greene and decisions from 

other Courts of Appeals. In this case, the State’s assurances at trial that discoverable material 

would be disclosed were much stronger than in Strickler; here, the trial prosecutors promised to 

affirmatively reveal such information, and after Farr -  their key penalty phase witness -  testified 

untruthfully that he was not an informant, they not only did not correct this misrepresentation, but 

instead they assured the jury Farr had been truthful. Strickler's holding that habeas counsel can 

rely upon such assertions in guiding post-conviction investigation was given no weight by the

Fifth Circuit panel. Moreover, other decisions from this Court show the panel’s materiality ruling 

to be erroneous as well.

Second, its reversal o f relief on penalty phase ineffectiveness grounds cannot be 

harmonized with Williams v. Taylor and numerous other decisions from Courts of Appeals. The 

character and quantity o f the evidence is indistinguishable from that found sufficient in Williams, a 

case the panel did not cite. Moreover, unlike Williams, where the petitioner had a substantial and

23



violent criminal history, Mr. Banks had no such history. Consistency in the enforcement o f the law 

requires certiorari to review the panel’s decision.

Third, the panel’s refusal to even consider another meritorious Brady v. Maryland claim, 

this one concerning powerful impeachment evidence o f the state’s key guilt phase witness because 

an evidentiary hearing” in habeas proceedings is not a “trial” for Rule 15(b) purposes, is 

inconsistent with Harris v. Nelson, 394 U.S. 286 (1969) and Withrow v. Williams, 509 U.S. 680 

(1993). This Court has long held that where appropriate, the Federal Rules o f Civil Procedure 

apply in habeas actions, and there is no reason why that rule should not fully apply to claims 

litigated in habeas actions.

Finally, the panel’s holding that Mr. Banks’ Swain v. Alabama claim is defaulted is 

inconsistent with Ford v. Georgia, 498 U .S . 411 (1991), because there was no established rule 

requiring trial level Swam objections. Moreover, the panel’s reliance upon the state court finding 

that the State adequately rebutted the prima facie showing of discrimination rests squarely upon a 

mistaken rule of law that led the state court not to consider much of Mr. Banks’ pattern and 

practice evidence. The Court is presently considering this same issue in Miller-el v. Cockrell, No. 

01-7662. It should at least hold this case until that case is decided.

ARGUMENT

The Fifth Circuit’s Reversal on the Farr Claim 
Is Entirely At Odds With Strickler v. Greene 

And Precedents from Other Circuits

The panel concluded that the district court erred in granting sentencing relief because the 

key evidence presented in support o f the claim -  the testimony of informant Robert Farr and 

Deputy Huff -  was not first presented to the state courts, and because Mr. Banks failed to

24



establish adequate cause to excuse this failure. Moreover, the panel held that relief should also 

have been denied because the non-disclosed information was not material. Respectfully, both 

these conclusions are contrary to governing law and warrant review.

a. The panel’s “cause”determination is inconsistent with Stricklerv. Greene

In concluding that Mr. Banks failed to take sufficient steps to discover the Farr and Huff 

evidence while the case was pending before the state habeas court, the panel accepted the 

Director’s argument that the state had not interfered with Mr. Banks’ access to either witness and 

that there was an insufficient showing as to why Mr. Banks could not have spoken to Farr prior to 

the conclusion o f these proceedings. But neither the panel nor the Director discuss the case that 

governs this issue, Strickler v. Greene, 527 U.S. 263 (1999), nor explain why it does not require 

affirmance of the district court’s opinion on this point.

In Strickler, a Virginia capital habeas petitioner attempted to raise a Brady claim in 

federal district court without having first presented either the claim or supporting evidence in state 

court. The claim was based upon a number o f police documents Strickler obtained pursuant to 

discovery in the federal court that contained impeachment material concerning an important state 

witness. At trial, the prosecutor had maintained an open file policy and the defense reviewed the 

file on several occasions. However, several documents later uncovered in federal discovery were 

not included in the trial file. During state post-conviction proceedings, new counsel for Strickler 

alleged that trial counsel had been ineffective for failing to file a discovery motion seeking Brady 

material. The state responded that such a motion was unnecessary because o f the open file policy 

and the state courts dismissed the petition. After discovering the documents while in federal court, 

Strickler pleaded a Brady claim. The district court found adequate cause for the failure to present

25



the claim in state court because Strickler had no independent access to the documents and state 

actors had repeatedly withheld them throughout the state proceedings. The court of appeals 

reversed. The panel concluded that Strickler defaulted the claim in state post-conviction because 

he could have developed the factual basis there but did not. He knew that the witness had been 

interviewed by police on several occasions prior to trial, and state law allowed him to seek 

discovery; had he filed a motion it is likely the state court would have granted it.

This Court rejected that analysis The Court focused upon the circumstances in the trial 

court as those events would naturally influence the reasonable decisions o f state habeas counsel. 

In Strickler, the habeas attorney knew that prior to trial, Strickler’s counsel received open file 

discovery, but the key documents were not disclosed. It was reasonable for trial counsel to 

assume that the prosecutor would discharge his duty and disclose all exculpatory material. The 

Court concluded that “if it was reasonable for trial counsel to rely on, not just the presumption 

that the prosecutor would fully perform his duty to disclose all exculpatory material, but also the 

implicit representation that such material would be included in the open files tendered to defense 

counsel for their examination, we think such reliance by counsel. . .  in state habeas proceedings 

was equally reasonable.” 527 U S. at 284. Thus, events concerning discovery in the trial court are 

highly relevant to a habeas petitioner’s duty to investigate in state post-conviction proceedings. In 

this case, the panel ignored this controlling rule o f law.

In Mr. Banks’ case, the trial prosecutors not only assured him that all discoverable 

material would be provided without the need for a discovery motion, there were explicit 

representations (later proven to be untrue) that Farr was neither an informant nor had been paid 

for his services in this case. Prior to trial, trial prosecutors wrote to counsel and explained they

26



were prepared to provide discovery; there was no need for Mr. Banks to file a discovery motion 

Mr Banks had previously asked Deputy Huff to disclose the identity o f the informant he 

mentioned in pretrial testimony. Huff had refused. At neither phase o f trial did Farr tell jurors that 

he was an informant or had been paid in this case. Indeed, he expressly denied receiving any such 

payment when asked. The prosecutors not only did not correct this misrepresentation, they 

assured the jury that Farr had been honest. Thus, in the trial court proceedings, the state promised 

to disclose such material, did not correct the witness when he failed to disclose his true status, and 

then guaranteed jurors that Farr’s testimony had been completely truthful.

Given these circumstances, Strickler teaches, trial counsel and Mr. Banks could 

reasonably conclude that whomever the informant was, it was not Robert Farr. And, as Strickler 

makes clear, if it was reasonable for trial counsel to so conclude, it was equally reasonable for 

habeas counsel to conclude similarly, as neither counsel nor Mr. Banks had any reasonable way to 

determine otherwise.12 See also Williams v. Taylor, 529 U S. 420 (2000)(juror bias and 

prosecution misconduct claims not barred in federal court because o f petitioner’s failure to raise in

p t j T  p̂eculated ^  had Mr Banks simply made the efforts, he likely could have spoken to 
either Farr or Huff while the case was pending in the state habeas court. The record provides no support for

7  'V3nted no part m speaking t0 anyone about his work as a police informant Not long 
Mr. Banks trial, he was warned by his law enforcement handlers that he should leave Texas as his

M bI T s m f w  / h 1  ^ t0 0k,lah°ma ^  ^ t0 Cal,f°m,a t0 hlde ^  panel states that r^Barks filed his federal petition only after contacting Farr, sec App. A at 9, Mr. Banks had no luck in

toldNI r  S1X m°nthS 3fter 1116 P6tltl°n WaS filed He Was not happv when he was finally located told Mr. Banks representative that he would not have spoken with her previously, and made ,t clear that he
would not retum to Texas to testify voluntarily. While the Director had every opportunity to speak to Farr
or to command ^presence at the federal hearing to challenge any of his assertions, it chose not to do so ’
Similarly, Deputy Huff did not volunteer any information about Robert Farr, and indeed sought

Lf“ m °n ^  Stand ^  he C0Uld 1,1211 reveal 1,131 Farr’had served -  hls

27



state court as underdevelopment o f claims were attributable to juror and prosecutor; defense 

counsel did not default claim by failing to check public records concerning each juror).13

b. Materiality Determination Is Also Inconsistent with Settled Law 

The materiality inquiry requires a court to determine whether the missing “evidence could 

reasonably be taken to put the whole case in such a different light as to undermine confidence in 

the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). A review o f the entire trial record is 

necessary to make this determination reliably. In Strickler, one important factor the Court focused 

on repeatedly was how the case was cast for the jury by the prosecution. See Strickler at 307-08. 

Here, the panel’s analysis failed to focus upon such factors critical to the materiality analysis.

Farr offered uniquely damaging evidence. He testified that Mr. Banks was going to Dallas 

to obtain a weapon so that Banks could commit armed robberies, and, if necessary, kill reluctant 

victims. This testimony was both the heart and soul o f the state’s case for the death penalty and 

was uncorroborated.14 The juiy was explicitly urged to rely heavily on this evidence in its 

deliberations. One prosecutor characterized Farr’s testimony to be “of the utmost significance,” 

because it established Banks posed a “danger to friends and strangers alike.” 9SR at 2593. The

13 The Fifth Circuit’s decision conflicts with other well-reasoned decisions in the circuits as well
* *  V 303 F 3d 1222> 1228 d 0th Cir. 2002)(mere speculation that exculpatory evidence
may have been withheld does not impose duty on counsel to advance claim)- Crawford v Head 2002 11 9 
App. LEXIS 23420, M08-M09 (11* Cir.)(same); White v. Helling, 194 F 3d 937 924-4^(8-C,r
1999)(w,thholdmg of exculpatory evidence contributed to petitioner establishing cause for failure to raise 
Brady claim prior to federal habeas).

14 The testimony of Vetrano Jefferson, Banks' common-law brother-in-law, concerning their fight 
was not evidence showing a likelihood of future dangerousness. See Ellason v. State, 815 S W 2d 656 663 
(Tex. Cnm. App. 1991)(fight between in-laws “not particularly probative” of whether defendant would 
commit criminal acts of violence that would constitute a continuing threat to society .)

28



other prosecutor assured jurors they could trust Farr as he had been “open and honest with you in 

every way.” 9SR at 2579.

It is now beyond debate that Farr was not “open and honest . . .  in every way;” he lied 

about not being a paid informant. Further, his narrative that made Mr. Banks appear exceedingly 

dangerous -  that Banks was going to Dalles to get a gun so he could commit violent crimes and 

kill, if necessary -  was a fiction. The prosecutor’s plea to the jury to consider Farr’s testimony as 

it was “of the upmost significant” is irrefutable evidence of the importance o f Farr and his 

misleading narrative to the state’s case for future dangerousness.

The panel’s decision reversing the grant of relief is contrary to this Court’s precedents 

beginning with Giglw v. United States, 405 U.S. 150 (1972), with other circuit decisions,

CnVem  U Roth> 172 F 3d 991 C7* Or. 1999)(evidence undermining credibility o f key 

witness material); Reutter v. Salem, 888 F.2d 578 (8lh Cir. 1989)(misleading remarks by 

prosecutor that key witness had been completely forthcoming both improper and highly 

prejudicial); United States v. Scheer, 168 F.3d 445 (1 1th Cir. 1999)(witness testimony material 

particularly where prosecutor makes repeated reference to it in closing argument), and even other 

Fifth Circuit precedent. East v. Johnson, 123 F.3d 235 (5th Cir. 1999){Brady violation concerning 

witness prosecutors placed more reliance upon than any other witness to establish future 

dangerousness was material). Review is warranted to provide guidance to the lower courts.

29



The Panel Opinion Reversing the Grant of Relief Based on 
Counsel’s Ineffectiveness at the Penalty Phase Ignores Settled 

Precedent to the Contrary

The panel committed similar error in rejecting the district court’s determination that Mr. 

Banks demonstrated that trial counsel’s plainly deficient performance showed a reasonable 

probability that, but for that performance, the jury would have rejected the death penalty.

a The panel decision is flatly inconsistent with Williams v. Taylor 

In Williams v. Taylor, 529 U S. 362 (2000), the Court considered an ineffective 

assistance of counsel claim that is nearly identical to the one raised by Mr. Banks.15 Williams’ trial 

counsel, like Mr. Banks’, made next-to-no preparation for the penalty phase and had presented 

evidence at the sentencing phase only to the effect that Williams was a nice guy and had turned 

himself in. 529 U.S. at 369. During state habeas proceedings, new counsel proved that trial 

counsel had not begun to prepare for the sentencing phase until a week prior to trial and that 

readily available evidence could have shown the jury that, as a child, Williams had been repeatedly 

beaten by his father, had been sorely neglected by his parents, was slow mentally and yet was a 

good candidate to be an obedient prisoner. After hearing this evidence, the sentencing judge 

found that it raised a reasonable probability that the sentencing decision would have been different 

and recommended relief. Id. at 371. The state supreme court rejected this recommendation. It 

characterized the new mitigating evidence as showing only that Williams was not violent and

15 316 ^  maJ°r differences in the cases that cut in Mr. Banks’ favor. First, while Mr. Banks
T Z  n° Pnor cnnunaJ record, Williams had an extensive one that included pnor acts of violence. 529 U S 
362 at 368-9. Second, the Williams case was governed by the 1996 amendments to the habeas corpus 
statute that forbid the granting of relief unless the state court judgment was contrary to or an unreasonable 
application of Strickland v. Washington, 466 U.S. 668 (1984). This is a pre-AEDPA case and thus the 
review standard is de novo.

30



could cope well in a structured environment, but when it compared the evidence with Williams’ 

extensive criminal history, concluded there was no reasonable probability that the sentencing 

decision would have been different. Id. at 371-2

The Court found this judgment not only to be a mistaken application o f Strickland v. 

Washington, but also to be an objectively unreasonable one. First, the panel demanded that 

Williams show the outcome of his sentencing proceeding would have been different, a standard 

Strickland expressly rejected. Second, the decision was unreasonable because it failed to evaluate 

the totality of the mitigating evidence in the record against the aggravating evidence. Id  at 397-8.

The panel decision here is similarly sharply at odds with Williams. First, the panel, like the 

state supreme court in Williams, never evaluated all of the mitigating evidence in this record 

against the aggravating evidence. Second, as the mitigating evidence in this record is very similar 

in quantity and character with that in Williams, and as the aggravating evidence in Williams was 

vastly greater than the evidence here, proper application of Williams requires affirmance o f the 

district court’s grant o f habeas relief. The court below, however, considered the mitigation 

evidence in the record by separating it into categories, and then asking whether each type o f 

evidence, m isolation from the other, was sufficient to raise a reasonable possibility that the jury 

would not have returned the death penalty. See App A at 37-41. It characterized the 

psychological evidence from Dr. Pina -  who thoroughly documented a long list o f neurological 

and psychological problems in addition to a history o f several significant childhood traumas of a 

deeply scamng nature -  as only “possibly mitigating,” and concluded this evidence does not 

satisfy Strickland’s  prejudice prong. Id., at 39. It next briefly summarized the family dysfunction 

evidence from Mr. Banks’ parents and again concluded the evidence, by itself, did not establish

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Strickland prejudice. Id , at 40. At no time did the panel consider all o f the evidence together in 

addressing the question o f whether counsel’s uncontested deficient performance raised a 

reasonable probability o f a different sentencing decision. This is plain error under Williams.

When all o f the record evidence is considered, Mr. Banks’ mitigation case is 

indistinguishable from the one the Williams Court found sufficient to warrant habeas relief Mr. 

Banks, at the time o f his trial, was a man o f limited intellectual functioning; he had clearly defined 

neurological deficits and organic injury that significantly impaired his memory and ability to plan 

or deal with changing events. RES’s RE at Tab 15 p. 3-4. Moreover, he had endured a number of 

deeply traumatic events in his childhood, and, through no fault o f his own, was highly allergic to 

many substances, and these allergies caused severe skin disfigurement. He was shunned and 

ridiculed by his peers throughout his life. Furthermore, his father was chronically abusive and 

alcoholic and regularly beat and terrorized Mr. Banks, his mother and siblings. RES’s RE at Tab 7 

p. 1-5 &Tab 15 p. 4-5. Nevertheless, Mr. Banks was a very good candidate for peaceful 

adjustment to the prison structured environment. RES’s RE at Tab 15 p. 7. As the Williams 

opinion makes clear, this type o f sentencing portrait, which Mr. Banks’ jury never heard and the

state never rebutted, is precisely the type o f evidence that can persuade a jury to reject imposition 

of a capital sentence.

Indeed, in Williams, the Court held that such evidence is significantly mitigating, so much 

so that even strong aggravating evidence does not defeat a Strickland claim. The amount and 

character o f aggravating evidence in Willliams is staggering in comparison with the evidence in 

this record. While Mr. Banks had no prior criminal record, Williams had two prior felony 

convictions, one for armed robbery and, shortly before committing the murder o f the elderly

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victim in the capital prosecution, had severely beaten an elderly woman leaving her in a vegetative 

stage. 529 U S. 362 at 368-9. Yet all of this aggravating evidence was not sufficient to persuade 

this Court that the mitigating evidence the jury never heard would not have raised a reasonable 

probability o f a different sentencing result.16

The Panel Opinion Denying A Certificate of Appealability On Whether 
Fed. R. Civ. P. 15(b) Applies To Evidentiary Hearings In Habeas Proceedings 

Is Sharply Inconsistent with Governing Law

Mr. Banks is entitled to a certificate o f appealability and to review of his meritorious claim

concerning the state s suppression at trial o f the lengthy pretrial statement authorities took from

key witness Charles Cook that contains a comprehensive array of impeachment evidence. The

district court refused to review the claim pursuant to Fed. R. Civ. P. 15(b), and the panel denied

issuance o f the certificate because Mr. Banks failed to show that an evidentiary hearing is the

functional equivalent o f a trial for Rule 15(b) purposes. This decision is entirely inconsistent with

case law that shows not only that this is a debatable point, but that 15(b) applies to habeas cases.

Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts 

provides that “the Federal Rules o f Civil Procedure, to the extent that they are not inconsistent 

with these rules, may be applied, when appropriate, to petitions filed under these rules.” The 

Court has long applied a functional approach in determining which rules o f civil procedure apply 

m the habeas context. See McFarland v. Scott, 512 U S. 849, 866 n.2 (1994)(Thomas, J„ 

dissenting)( ‘The Federal Rules o f Civil Procedure apply in the context o f habeas suits to the

16 The panel opinion is incompatible with other court of appeals decisions where the mitigating 
evidence not presented before the jury was similar as here. See e g., Carter v. Bell. 218 F 3d 581 (6th Cir 
2000)(neglectful and abusive childhood, mental deficits and low intellectual functioning established 
Strickland prejudice); Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000)(troubled childhood and head 
injuries sufficient to show Strickland prejudice).

33



extent that they are not inconsistent with the Habeas Corpus statute.”). Thus, the Court has held 

that while the broad discovery provisions o f the rules of civil procedure do not apply because 

Rule 6 o f the Rules Governing Section 2254 Cases limits discovery “to the extent that, the judge 

in the exercise o f his discretion and for good cause shown grants leave to do so, but not 

otherwise,” see Harris v. Nelson, 394 U.S. 286 (1969), Rules 52(b) and 59, which govern 

motions to reconsider, do apply as there is “no reason to hold to the contrary.” Browder v. 

Director, Illinois Department o f  Corrections, 434 U.S. 257, 270 (1978).17

With regard to Rule 15(b) and habeas corpus proceedings, the Court has sent strong 

signals that the rule applies to habeas corpus proceedings without qualification. See generally 

Calderon v. Ashmus, 523 U.S. 740, 750 (1998)(Breyer, J., concurring)(pre-AEDPA habeas 

regime consistent with Rule 15 amendment standard). Indeed, the Court has previously assumed 

that Rule 15(b) applies to habeas proceedings. In Harris v. Nelson, 394 U.S. 286, 294 n.5 (1969) 

the Court referenced the rule as one of a number o f “noncontroversial rules” that the federal 

courts have applied in habeas proceedings. More recently, in Withrow v. Williams, 507 U.S. 680 

(1993), the Court again made the same assumption. There, a prisoner had filed a one-claim 

petition alleging that his custodial statements were taken in violation o f Miranda v. Arizona, 384 

U.S. 436 (1966). The district court agreed, found that statements taken prior to the administration 

of Miranda warnings should have been suppressed and ordered a new trial. In addition, the court 

determined that statements taken after the administration o f the warnings were involuntary. The

17 The Browder Court determined that no other federal statute addressed the issue of timeliness of 
motions to reconsider the grant or denial of habeas decisions and that habeas practice did not differ from 
other civil proceedings m this regard. Moreover, the goal of Rules 52(b) and 59 in the civil context -  just
and speedy adjudication -  is entirely consistent with the swift determination of habeas corpus claims See 
434 U.S. at 270-71.

34



warden argued that this second ruling was improper because Williams had not raised the 

involuntanness claim in either the state courts or in his habeas corpus petition. Williams argued 

that while he had not pleaded the due process claim in his federal petition, the matter was tried by 

implied consent o f the parties. The Court assumed Rule 15(b) applied to habeas proceedings, but 

reversed the lower court’s grant of relief on the due process ground because the record “reveals 

neither thought, word, nor deed o f [the Warden] that could be taken as any sort of consent to the 

determination o f an independent due process claim, and [the Warden] was manifestly prejudiced

by the District Court’s failure to afford her an opportunity to present evidence bearing on the 

claim’s resolution.” 507 U.S. at 696.

This line o f authority suggests strongly that Rule 15(b)’s application to habeas corpus 

evidentiary hearings is, at the very least, one that “jurists of reason would find debatable.” 

Moreover, it further suggests that jurists o f reason would conclude that the Withrow Court’s 

assumption -  that Rule 15(b) governs the question of whether an issue was or wasn’t 

adjudicated by implied or express consent -  is correct, as habeas evidentiary hearings are 

conducted similarly to civil trials. And unlike the discovery context, where civil and habeas 

practice is decidedly different, there is no reason to treat the litigation by consent of a claim not 

specifically pleaded in a civil trial differently from a claim not so raised in a habeas petition.

In this capital proceeding, some court should review the lawfulness of the state’s 

suppression o f a transcript revealing that the state’s key witness was unworthy o f belief The 

record unambiguously shows that the state suppressed this document from the time of trial until, 

nearly 19 years later, the Magistrate Judge ordered it disclosed. The circumstances o f its 

suppression were fully litigated below, after the Director had ample notice that Mr. Banks’

35



pleaded Brady claim included this issue. Certiorari is appropriate to confirm what the Court has 

strongly intimated in Harris and Withrow -  that Rule 15(b) applies to habeas proceedings.

The Panel’s Holding That Mr. Banks’ Swain  Claim 
Is Defaulted Conflicts With Established Law

The panel below refused to issue a Certificate o f Appealability to address Mr. Banks’ 

meritorious Swam claim, because it determined that jurists o f reason would not find debatable 

whether the failure of trial counsel to object defaulted the claim, or whether Mr. Banks could

establish sufficient “prejudice” to excuse the default. Both ruling are in sharp conflict with 

governing law.

a. No Firm Rule Required Swain  Objection at Trial

The Court has made clear that in order to constitute an adequate and independent ground 

sufficient to support a finding of procedural default, a state rule must be "firmly established and 

regularly followed" at the time o f the alleged default. Ford v. Georgia, 498 U.S. 411, 423-24 

(1991), quoting James v. Kentucky, 466 U.S. 341, 348 (1984); also Johnson v. Mississippi,

486 U.S. 578 (1988). Throughout this litigation, neither the Director nor the lower courts have 

identified the existence o f such a rule in force and effect at the time of the alleged default -  

September, 1980.

If such a rule existed, the State would surely have asserted this argument when Mr. Banks 

first raised his Swain claim during his first state post-conviction proceeding in 1983. The State 

did no such thing, and argued instead that the claim should be denied on the merits. As the record 

shows, both the trial court and Court o f Criminal Appeals rejected this claim on its merits, even 

though there had been no objection at trial. App. A at 63-64.

36



Indeed, when Mr. Banks again raised this claim in his 1992 state petition, the State initially 

made no claim of default, though it did argue that other claims were defaulted because of a failure 

to raise them at trial. The first assertion o f default o f the Swain claim came on appeal. Even then 

the State cited no case holding a trial objection was required for Swain claims in 1980.

After the 1993 evidentiary hearing on this claim that had been ordered by the Court of 

Criminal Appeals, the trial court found that (1) trial counsel had not raised an objection during the 

trial proceedings, and (2) this failure constituted a default. App. E at 2-4. But the sole authority 

cited for this rule was Matthews v. State, 768 S. W.2d 731 (Tex. Crim. App. 1989), a case decided 

nine years after Mr. Banks’ trial holding (for the first time) that claims based upon Batson v. 

Kentucky, 476 U.S. 79 (1986) would be treated as defaulted in the absence of a trial objection. It 

relied upon no case pre-dating Mr. Banks’ trial placing trial counsel on notice that a Swain claim 

would be defaulted if not raised at trial. When the Court o f Criminal Appeals adopted the trial 

court s decision, it identified no case setting forth a firm default rule applicable in 1980. App. D 

The district court demed relief, in part, because of the absence of a trial court objection, 

but, like the state courts, identified no case that placed Mr. Banks on notice that a Swain claim 

must be asserted at trial or lost. See App. C at 35. And in the court below, the Director did no 

better. He conceded that the one state decision that was available at the time of trial, Chambers v. 

State, 568 S.W.2d 313 (Tex. Crim. App 1978), did not set forth a clear trial default rule for 

Swam claims, and that the Court o f Criminal Appeals did not clarify the status of such a rule until 

mUiarns v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988), well after Mr. Banks’ trial. See 

Director’s Reply Br. at 59-60. The case upon which Mr. Banks relies -  Ex Parte Haliburton, 755 

S W 2d 131 (Tex. Crim. App. 1988) -  cannot be written off as an “occasional act o f grace.”

37



Rather, it confirms that the absence o f a trial objection in 1980 did not bar merits review o f a 

Swain claim in later Post-conviction proceedings. Haliburton’s trial, like Mr. Banks’, took place in 

1980, and his counsel made no Swain objection at trial. He was allowed to be heard on his Swain 

claim in his third state post-conviction proceeding because the absence o f a trial objection did not 

bar the claim from being litigated in the later proceeding.

The Fifth Circuit’s decision lacks the fundamental ingredient to sustain the state court’s 

default holding: a clearly established rule that the failure to make a trial objection would bar later 

review o f a Swain claim. Ford v. Georgia, supra.

b The Panel’s “Prejudice” Determination is Also Erroneous

While the panel determined that Mr. Banks showed adequate “cause” to overcome trial 

counsel’s default, it held that, for COA purposes, “Banks has failed to show prejudice sufficient 

to overcome the bar. In light o f the state court’s findings o f a prima facie Swain violation, the

State proved that, for Banks’ trial, no black venire member was excluded because o f his or her 

race.” App. A at 74.

This ruling relies entirely upon the state court decision that the prosecution had sufficiently 

overcome the pnma facie case. But that ruling was fundamentally flawed because it refused to 

consider much o f the evidence Mr. Banks introduced to demonstrate that a firmly established 

policy o f excluding black jurors from jury service -  and not a careful evaluation during voir dire -  

motivated the removal o f the four black jurors in this case.

Mr. Banks’ evidence looked at jury striking behavior from January, 1975 through 

September, 1980. This evidence showed that in seventeen felony cases tried in 1979 and 1980,

524 jurors qualified to serve. Pet. Tab K. Of this number, the race o f 494 were identified. Blacks

38



accounted for 84 o f these jurors; prosecutors removed peremptorily 76 o f them Id  Of a total of 

204 jurors who actually served on juries, only 6 were black. In fifteen of the seventeen juries, the 

jury was either all-white or contained only one black juror. Id.

Data from 1975 through 1978 showed nearly identical rates o f exclusion of blacks. While 

84 African Americans made up 13% of the pre-peremptory pool, 79, or 94% ,were peremptorily 

struck by the State. Pet. RE Tab L. O f the 204 jurors who sat on juries, only five were black. Id  

This evidence shows a stark pattern and practice that resulted in more than 9 out of every 10 

qualified blacks peremptorily struck.

All o f this evidence was plainly relevant to Mr. Banks’ Swain challenge. Swam itself 

requires a showing o f purposeful removal over a significant period o f time. And because 

establishment o f a particularly stark practice o f discrimination strengthens the inference o f intent, 

Village o f  Arlington Heights v. Metropolitan Housing Development Corp., 429 U S. 252 266 

(1977); Washington v. Davis, 426 U.S. 229, 241-42 (1976), it is relevant when assessing whether 

the justifications for the strikes are race-neutral or pretextual.

The state court refused to consider all of Mr. Banks’ evidence from 1975 through 1978 

because “no State action was taken against Mr. Banks by the Bowie County District Attorney’s 

Office under Mr. Cooksey,” the District Attorney at the time. App. E at 4. The Court seemed to

reason that because there was a change in the District Attorney in 1979, the evidence from before 

that time was not relevant.

The evidence Mr. Banks presented shows a seamless pattern of purposeful exclusion from 

1975 though Mr. Banks 1980 trial. Throughout, the prosecutors accepted more than 80% of the 

qualified white jurors and struck more than 90% of the black jurors. Race-coding ofjuror forms

39



was practiced throughout the time period. And the record from 1979 through Mr Banks' trial of 

the surviving prosecutor who tried Mr. Banks clearly shows adherence to the policy to remove 

black jurors. He participated in two trials prior to Mr. Banks’ case, and although thirteen black 

jurors were in the pre-peremptory strike pool in those cases and Mr. Banks' case, none of those 

jurors served; each was removed by the State's peremptory strike, and each o f the three juries 

was all-white. SHTr.3 at 894-95, 912. Moreover, the prosecutor had observed the seating o f six 

additional juries prior to Mr. Banks' trial. In those cases, prosecutors struck a total o f 23 o f 27 

Black jurors in the pre-peremptoiy pools. Id. at 915. Even Elliott agreed that the total numbers of

jurors who served in those rune trials-127 white jurors and only 3 Black jurors-was a “striking 

disparity.” Id. at 916.

The refusal o f the state court to consider much of Mr. Banks’ pattern and practice 

evidence -  both in determining the strength o f his pnma face case, and also when considering the 

legitimacy o f the reasons provided by the State justifying removal o f the four black jurors in this 

case -  is a clear mistake o f law. Arlington Heights, Hazelwood School Dist. v. United States, 433 

299> 307-° 8 O 977)- Such evidence is relevant and umquely probative o f motivation.

Indeed, the Court has before it in Miller-el v. Cockrell, No. 01-7662, the related question of the 

role o f pattern and practice evidence in the

V. Kentucky, 476 U S. 79 (1986) context. A, the very least, the role o f pattern and practice 

evidence in the determination o f justifications for strikes is an issue that jurists o f reason would 

find debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000)

T hus, certiorari is  w arranted b ecau se  th e Fifth C ircu it's ruling that M r B an k s' m eritorious  

Swain claim  is defaulted  is contrary to  this C ou rt’s jurisprudence.

40



CONCLUSION

Wherefore, for the foregoing reasons, Mr. Banks respectfully moves the Court to grant 

review o f this matter.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore Shaw 
Deputy Director-Counsel

* George H. Kendall 
Janai S. Nelson 
Assistant Counsel 

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street, 16th FI. 
New York, NY 10013 
212-965-2200

Clifton L. Holmes 
P. O. Drawer 3267

* Counsel o f Record

41