Banks v. Dretke Brief for Petitioner

    No. 02-8286

In  T he

Supreme Court of tfje Untteb States!

D elm a  B a n k s , Jr ., 

v.
Petitioner,

D o u g  D r e t k e , D ir e c t o r ,
T e x a s  D e p a r t m e n t  o f  C r im in a l  Ju s t ic e ,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF FOR PETITIONER

Clifton L. Holm es 
P.O. Drawer 3267  
Longview, TX 75601 
(9 0 3 )7 5 8 -2 2 0 0

La u r a  Fer n a n d ez  
Ho l l a n d  & Knight 
195 Broadway, 25th Floor 
N ew  York, NY 10007 
(2 1 2 )5 1 3 -3 2 9 5

Elaine  R. Jones 
Director-Counsel 

G eorge h . Ken d a ll  *
Janai S. N elson  
M iriam Go hara  
N A ACP Legal D efense  

& Ed u c a tio n a l  Fu n d , In c . 
99 Hudson Street. 16th Floor 
New York, NY H)()13 
(212) 965-2200

Counsel fo r  Petitioner

July 1 1 ,2 0 0 3  * Counsel o f Record

W il so n -Ep e s  Printing  Co., In c . -  (202) 789-0096 -  W a sh in g t o n , D. C. 20001



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QUESTIONS PRESENTED
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 of his trial-on the grounds that:

(a) the evidence supporting the claim was pro- 
cedurally defaulted, notwithstanding the fact that, like in 
Strickler 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 stale 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 of 
“utmost importance” to showing a capital sentence was 
appropriate?

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 of 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”?



II
LIST OF PARTIES

Pursuant lo Supreme Court Rule 24.1(b), the following list 
identifies all of the parties before the United States Court of 
Appeals for the Fifth Circuit.

Delrna Banks, Jr. was the appellee, cross-appellant below. 
Janie Cockrell was the appellant, cross-appellee below.

FABLE OF CONTENTS

QUESTIONS PRESENTED........................................

LIST OF PARTIES......................................................
TABLE OF AUTHORITIES........................................
OPINIONS BELOW....................................................

JURISDICTION...........................................................
CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.....................................

STATEMEN T OF THE CASE....................................
A. State Trial Court Proceedings...........................

1. The Crime...................................................

2. Trial Proceedings........................................
B. Post-Conviction Proceedings............................

1. Farr Misrepresentation and Suppression
Claim..........................................................

2. The Ineffective Assistance of Counsel
Claim..........................................................

3. The Cook Misrepresentation and Sup­
pression Claim............................................

SUMMARY OF ARGUMENT....................................
ARGUMENT................................................................

I. The State Violated Due Process By Con­
cealing A Key Witness’s Paid Informant 
Status And By Vouching for That Witness’s 
Known False Testimony...................................



IV

TABLE OF CONTENTS—Continued

Page
A. The Farr Claim Was Not Adjudicated in

State Court Because the Prosecution 
Concealed the Relevant Facts......................... 18

B. The District Court Correctly Found That
Farr’s Deception Denied Banks Due 
Process in Sentencing..................................... 19

C. The Fifth Circuit Disregarded Settled
Law in Vacating Relief...............................  23

1. The Fifth Circuit’s materiality
ruling is erroneous................................  23

2. The Supporting Evidence Was Not
Defaulted..............................................  25

II. The Fifth Circuit Erred in Reversing The 
District Court’s Grant of Relief for Counsel’s 
Ineffectiveness....................................................... 27

A. Banks Presented the Same Claim and
Supporting Facts Before the State and 
Federal Courts............................ ,...............  27

B. Both Courts Below Agreed, and Prop­
erly Held, That Counsel’s Performance
Was Deficient.................................................. 30

C. The District Court’s Prejudice Deter­
mination is Fully Consistent with 
Williams & Wiggins........................................ 31

D. The Fifth Circuit Erred in Denying
Relief...............................................................  32

1. Banks did not rely upon un­
exhausted evidence.................................... 33

v
TABLE OF CONTENTS—Continued

Page
a. The facts to which Jefferson

and Cunningham testified were 
pleaded and proffered in state 
court................................................  33

b. The federal testimony was con­
sistent with these proffers...............  34

2. The panel misapplied Strickland's
prejudice lest.........................................  35

III. The Court of Appeals Erred in Denying a
COA On the Cook Nondisclosure Claim.........  36

A. The Record Leaves No Doubt That The
Non-Disclosure Claim Was Litigated By 
Implied Consent of the Parties Within the 
Meaning of FRCP 15(b).............................  36

B. The Cook Issue Was Properly Before the
Federal Courts, Pursuant to Federal Civil 
Rule 15(b) and the Rules Govern­
ing Habeas Corpus Proceedings.................  40

C. The Suppressed Evidence Allowed The
Prosecutors to Misrepresent Cook’s 
Credibility...................................................  43
1. The Napue/Alcorta violation................  43
2. The extraordinary array of im­

peachment .............................................  44
CONCLUSION............................................................  50



VI

TABLE OF AUTHORITIES

CASES Page
Alcona v. Texas, 355 U.S. 28 (1957)...................  20, 43
Anderson v. Bessermer City, 470 U.S. 564

(1985).................................’...............................  21
Ex parte Banks, 769 S.W.2d 539 (Tex. Crim.

App. 1989)........................................................  8
Ex parte Banks, No. 13, 568-01............................  8
Banks v. State, 643 S.W.2d 129 (Tex. Crim. App.

1982).................................................................  8
Banks v. Texas, 464 U.S. 904 (1983)....................  8
Black ledge v. Allison, 431 U.S. 63 (1977)............  41
Brady v. Maryland, 373 U.S. 83 (1963)................ passim
Browder r. Director, Dept o f Corrections, 434

U.S. 257 (1978).................'...............................  41
Calderon v. Ashmus, 523 U.S. 740 (1998)...........  43
Clark v. Martinez, 295 F.3d 809 (8th Cir. 2002)... 40
Cay ho v. United States, 405 U.S. 150 (1972).......  20, 23
Harris v. Nelson, 394 U.S. 286 (1969).................  9, 42
Hilton v. Braun skill, 481 U.S. 770 (1987)............  41
Hoff a v. United States. 385 U.S. 293 (1966).......  21
■lames v. Whitley, 926 E.2d 1433 (5th Cir. 1991).. 42
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).......  19, 36
Kyles v. Whitley, 514 U.S. 419 (1995)..................passim
Lindh v. Murphy, 521 U.S. 320 (1997).................  9
McFarland v. Scott, 512 U.S. 849 (1994)............  41,42
Miller-El v. Cockrell, 537 U.S. 322 (2003)..........  17, 43
Miller v. Fate, 386 U.S. 1 (1967).........................  18
Miranda v. Arizona, 384 U.S. 436 (1966)............  42
Many rue v. Monsanto Co., 249 F.3d 422 (5th

Cir. 2001)..........................................................  40
Mooney v. Ilololuin, 294 U.S. 103 (1935)............  20
Mosley v. Dutton, 367 F.2d 913 (5th Cir. 1966).... 42
Napite v. Illinois, 360 U.S. 264 (1959).................  15, 43

I

vii
TABLE OF AUTHORITIES—Continued

Page

Pals v. Schepel Buick, 220 F.3d 495 (7th Cir.
2000).................................................................  40

Penry v. Lynaugh, 492 U.S. 302 ( 1989).............6, 31,36
People for the Ethical Treatment of Animals v.

Doughney, 263 F.3d 359 (4th Cir. 2001)..........  40
Pyle v. Kansas, 317 U.S. 2 13 (1942)....................  20
Robinson v. Wade, 686 F.2d 298 (5th Cir. 1982).. 42
Roell v. Withrow, 123 S. Ct. 1696 (2003).............  40
Slack v. McDaniel, 529 U.S. 473 (2000).............. 9
Steger v. General Electric, 318 F.3d 1066 (11th

Cir. 2003)..........................................................  40
Streeter v. Hopper, 618 F.2d 1178 (5th Cir.

1980).................................................................  42
Strickland v. Washington, 466 U.S. 668 (1984).... passim
Strickler v. Greene, 527 U.S. 263 (1999)......... 16, 25, 26
Townsend v. Sain, 372 U.S. 293 (1963)................  34
United States v. Agios, 427 U.S. 97 (1976)..........  20, 23
United States v. Bagley, 473 U.S. 667

(1985)..............................  18,20,21,23
Vasquez v. Hillery, 474 U.S. 254 ( 1986)..............  16, 33
Wiggins v. Smith, 539 U.S.___(2003)....... 16, 30, 31,35
Williams v. Taylor, 529 U.S. 362 (2000)..............  16, 30
Williams v. Taylor, 529 U.S. 420 (2000)..........16, 25, 26
Withrow v. Williams, 507 U.S. 680 (1993)...........  42, 43

STATUTES
28 U.S.C. § 1254(1)................................
28 U.S.C. § 2253(c)(2)...........................
FRCP 15(b).............................................
FRCP 5 2 .................................................
FRCP 8 1(a)(2)........................................
Rule 11 of the Rules Governing § 2254.. 
Rule 2(c) of the Rules Governing § 2254

passim
21
41
41
40



OPINIONS BELOW
The opinion of the Court of Appeals for the Fifth Circuit is 

unreported. It is reprinted at Pet. App. A1-A78, and the Fifth 
Circuit’s order denying rehearing is found at JA 450. The 
unrcported decision of the United Stales District Court for the 
Eastern District of Texas is reprinted at Pet. App. B 1-B6.

JURISDICTION
The judgment of the Court of Appeals was entered on 

August 20, 2002. A timely petition for rehearing was denied 
on September 23, 2002. The petition for writ of certiorari was 
filed on December 23, 2002. The Court has jurisdiction 
pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Sixth, Eighth, and Fourteenth 
Amendments to the Constitution, which provide respectively 
that: “In all criminal prosecutions, the accused shall enjoy the 
right . . .  to have the Assistance of Counsel for his defence”; 
“nor [shall] cruel or unusual punishments |be] inflicted”; and 
“nor shall any State deprive any person of life, liberty, or 
property, without due process of law.” This case also 
involves 28 U.S.C. § 2253(c)(2), reprinted at Pet. App. J 1; 
and Fed. Rule Civ. Pro. 15(b), “When issues not raised by the 
pleadings are tried by express or implied consent of the 
parties, they shall be treated in all respects as if they had been 
raised in the pleadings.”

STATEMENT OF THE CASE
Delma Banks’ conviction and death sentence were pro­

cured through the prosecution’s deliberate presentation of 
false testimony and suppression of material impeachment 
evidence, together with devastating ineptitude by defense 
counsel. The Fifth Circuit below refused to rectify these



constitutional violations for reasons that cannot bear exami­
nation under this Court’s precedents. What the record 
shows is this:

A. State Trial Court Proceedings
1. The Crime

On Monday, April 14, 1980, at roughly 10:00 a.m., the 
body of sixteen-year-old Richard Whitehead was found in a 
Bowie County, Texas park. 9R 2 169.1 He had been shot 
three times. Police learned that 21-year old Delma Banks, Jr. 
had been with Whitehead when Whitehead was last seen 
alive, on the evening of April 11. Banks, who had no prior 
record, was charged with Whitehead’s murder after one 
Charles Cook told police that Banks had admitted the crime 
and given Cook the murder weapon.

2. Trial Proceedings
Trial began on September 29, 1980. 9R 208.1 The District 

Attorney told the jurors that the State’s case depended 
heavily on Cook, a twice-convicted felon who was awaiting■y
prosecution on habitual offender charges.

The State had no eyewitnesses, no confession other than 
the purported one to Cook, and no evidence independent of 
Cook linking Banks to the murder.

Two witnesses, Patricia Hicks and Patricia Bungardt, both 
acquaintances of Whitehead, identified Banks as having been

1 References to the Joint Appendix will be cited as JA and then the 
page number. References to the state trial record will appear as volume
and page number,__R __ . References to the state post-conviction record
will appear as volume and page, __ SH__. References to the federal
habeas record will appear as volume and page,__F H __ .

2 The prosecutor told jurors, “Charles Cook is a very important witness 
for two reasons. First, because Delma Banks admitted to Charles Cook 
that he killed Richard Whitehead and robbed him of his automobile. 
Second, because Delma Banks left the murder weapon and the stolen 
vehicle with Charles Cook.” 9R 2128-29.

3
with Whitehead on the evening of April 11. 9R 2150. 2154. 
Hicks, a 14-year-old, testified that she, Whitehead and Banks 
spent part of the evening drinking beer at the park where 
Whitehead was later found. Id. at 2150. Bungardt testified 
that Banks and Whitehead visited her home between 11:00 
and midnight. 9R 2155. Neither testified about any animosity 
between Banks and Whitehead.

Mike Fisher, who lived near the park, testilied that he was 
awakened by two loud noises at roughly 4:00 a.m. on 
Saturday morning. Id. at 2158. Pathologist Vincent DiMaio 
testified that Whitehead died from three bullet wounds. Id. 
at 2390.

Bowie County Deputy Sheriff Willie Huff, the lead inves­
tigator, testified that he received a tip on April 23 that Banks 
would travel to Dallas that evening. He and other officers 
followed a car containing Banks, Robert Farr and Marcus 
Jefferson. Jefferson testified that after arriving in Dallas, 
Banks drove to a South Dallas house, went to the front door, 
and returned a short time later with a pistol. 9R 2265. Fan 
testified that Banks then said that this was not his pistol; Ins 
was with a “broad in West Dallas.” Id. at 2254-61,2267-69.

Deputy Huff testified that after seeing the car stop at the 
South Dallas house and Banks return with an object in his 
hand, police stopped and searched the car. They found a .22 
caliber pistol and shortly thereafter went to the house where 
Banks had been. The oflicers entered the house and 
confronted the occupant, Charles Cook. Later that morning, 
Cook went to a neighbor’s house and returned with a .25 
caliber pistol. Huff testified that he submitted this weapon for 
forensic testing for comparison against the bullets recovered 
from Whitehead. 9R 2208.

3 On cross-examination, Farr admitted that lie used illegal drugs, but 
denied that he was a paid informant. Id. at 2274. lie also denied receiving 
any consideration for his testimony, and he swore that he had not spoken 
with law enforcement officials about the case. Id. at 2274,2276-77.



4
Charles Cook, ilie prosecution’s key guilt-phase witness, 

testified that Banks drove up in front of Cook’s Dallas home 
at roughly 8:30 a.m. on Saturday, April 12 in a green 
Mustang, said he was unfamiliar with Dallas, and asked 
whether Cook would help him find a place to stay. 9R 2285- 
86. Cook agreed to aid Banks, and Banks stayed with Cook 
the following two days. Id. at 2293, 2299. Banks drove 
Cook’s wife to work, and when they returned home, Cook 
noticed what he thought was blood on Banks’ right leg. Id. at 
2287-88. According to Cook, Banks told Cook that Banks 
“got into it on the highway with a white boy” and that Banks 
shot him. Id. at 2289.

Cook further testified that he then gave Banks fresh 
clothes and they visited Cook’s sister who had a new baby. 
Id. at 2289-90. Cook next took Banks to a motel where 
Banks slept for a number of hours. Id. at 2290-91. Cook and 
Banks went out that evening. Id. at 2293. Cook showed 
Banks around Dallas. Id. They returned to Cook’s house, 
and Cook told Banks to sleep in a room opposite his and his 
wife’s. Id. at 2293-94. Cook testified that just before going 
to bed, he saw Banks sitting on the bed “with his head 
down.” Id. at 2294. Cook testified that Banks then confessed 
that he had not been truthful with Cook; that Banks had 
driven around the night before with a “white boy and his girl 
friend”; and that Banks had shot the white boy “for the hell 
of it” and taken his car to drive to Dallas. Id. at 2295. Cook 
testified that lie was afraid and told Banks that Cook could no 
longer allow him to stay in the house. Cook testified that, 
before retreating to his room, he noticed for the first time that 
Banks had a pistol. Id. at 2296, 2299.

Cook testified that the following day, he searched unsuc­
cessfully for another place for Banks to stay. Id. at 2297-98. 
He also testified that Banks agreed to return home the next 
day and spent Sunday evening at Cook’s home. Cook 
testified that before going to sleep, Cook persuaded Banks to 
let him hold the pistol for his family’s safety. Id. at 2300.

5
Cook testified that on Monday both Cook and his wife 
worked all day and, when they returned home, drove Banks 
to the bus station where Banks caught the bus back to 
Texarkana. Id. at 2302. Cook testified that Banks left the car 
and gun with him. Id. at 2303-04. Cook testified that on the 
following day, he drove the car to Canada Drive in West 
Dallas and abandoned it. Id. at 2303. Cook testified that on 
Tuesday evening, he sold the pistol to a neighbor, Benny Lee 
Jones, for $10. Id. at 2305. Cook also testified that he sold 
Jones jumper cables and a tool box from the car. Id.

Cook testified that nearly two weeks later, police came to 
his house searching for Banks’ pistol and Cook retrieved it 
for them. Id. at 2305-06. He testified that Banks called him 
to make sure that Cook had disposed of the car and that 
Banks requested that Cook mail him the pistol. Id. at 2307- 
OS. He testified that the next time he saw Banks, Banks 
showed up at Cook’s front door in the wee hours of the 
morning, again requesting return of his pistol, and that this 
was the same morning the police came in search of the gun. 
Id. at 2309-10.

On cross-examination, Cook denied that he had rehearsed 
his testimony with law enforcement officials or spoken to 
anyone about his testimony.4 He acknowledged that an arson 
charge and habitual offender papers were pending against 
him in Dallas but denied any deal for his testimony. 9R 2323.

Firearms examiner Allen Jones testified summarily that the 
bullets recovered from Mr. Whitehead and the crime scene 
likely were fired from the .25 pistol Cook retrieved from 
Bennie Lee Jones. Id. at 2357-58. The firearms examiner did 
not describe how he arrived at this conclusion, nor was he

4 “Q. Who all have you talked to about this, Mr. Cook? A. I haven't 
talked to anyone about it. Q. Haven’t talked to anyone? A. No sir. Q. Mr. 
Raffaelli just put you on the stand, not knowing what you were going to 
testify to. Is that what you’re telling me? A. That’s what I’m telling you.” 
9R 2314.



6
cross-examined about it. The State then rested its case. I OR 
2412. The defense rested without calling a witness.

The closing arguments of counsel focused upon the cred­
ibility of Robert Farr and Charles Cook. Prosecutor James 
Elliott asserted that Farr’s candor in acknowledging his drug 
use showed that he was a truthful witness. lOR 2449. Elliott 
told the jurors that “Charles Cook didn’t hide anything from 
you either.” kl. at 2450. He assured them that “Charles Cook 
brought you absolute truth,” and that he and District Attorney 
Raffaelli “didn’t hide anything with regard to any of these 
witnesses.” Id. at 2450. Defense counsel Cooksey noted that 
Cook was the key witness and urged the jury to find that his 
testimony was not credible. Id. at 2465, 2471. The jury 
retired to deliberate at 7:55 p.m. and returned a guilty verdict 
at 1 1:08 p.m. Id. at 2485.

The penalty phase began the next morning.5 The State’s 
case for death and its submission that Banks would likely 
commit acts ol violence in the future rested upon the testi­
mony ol two witnesses: Vctrano Jefferson and Robert Farr. 
Jefferson, Banks’ common-law brother-in-law, testified that, 
without provocation, 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 the stand and testified 
that the reason Banks drove 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 testified that Banks 
said the gun would allow him to lake care of any trouble that 
might arise during a robbery. Id.

This case was tried pursuant to the former Texas procedure that 
required the jury to make findings upon three special issues during the 
sentencing hearing. II the jury concluded unanimously and beyond a rea­
sonable doubt that the defendant had deliberately killed the victim, that 
the victim had not provoked the crime, and that it was reasonably likely 
that the defendant would commit acts of violence in the future, the death 
penalty would be imposed. See Peury v. Lynaugh, 492 U.S. 302 (1989).

7
On cross-examination, Farr denied that he had contacted 

Deputy Huff on April 23 to alert Huff that Banks would be 
traveling to Dallas to obtain a weapon. lOR 2503-04. Farr 
also denied that he was seeking to please the prosecution. Id. 
at 2505. Farr denied that he “got Delma to go” to Dallas, and 
Farr denied that he was carrying narcotics during the trip. Id.

The defense called several hastily assembled acquain­
tances of Banks and his parents. First, Mr. Banks, Sr. and 
then a number of adult acquaintances testified briefly that 
Delma, Jr., was a respectful, churchgoing young man and a 
hard worker. Id. at 2514-31. Two witnesses were called to 
discredit Farr. James Kelly testified that he had recently 
driven Farr to a number of doctors’ offices to fill phoney 
prescriptions, id. at 2546-51; 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. Banks testified and maintained his innocence. He 
pointedly contested Farr’s account that he, rather than Farr 
himself, wanted a gun to commit robberies, and he denied 
owning a .25 caliber pistol. He assured jurors that lie would 
live peacefully in prison if given a life sentence. Id. at 2566- 
69. Ellean Banks, Banks’ mother, in very brief testimony, 
asked the jury to spare her son, whom she described as 
innocent and a good son. Id. at 2575-76.

In closing, the prosecutor argued that the evidence showed 
that Banks would be dangerous in the future. Id. at 2578-82. 
In urging the jury to find that the special issue of future 
dangerousness had been proven, he relied exclusively upon 
Farr’s testimony,6 who, he reminded jurors, “has been open

0 The prosecutor told jurors: “Take the testimony of Robert Farr. They 
went to Dallas to get the pistol. Delma Banks’ pistol. Do harm? Robbery? 
Delma Banks said he was going to get the pistol to do armed robbery. . . .  
And you heard Robert Farr tell him, as he drove away, to load it, and that, 
T il  take care of it.’ I submit to you beyond a reasonable doubt that the 
State has again met its burden of proof, and that the answer to question 
two should also be yes.” Id. at 2589-90.



8

and honest with you in every way.” Id. at 2579. He urged 
the jurors to discount the defense “character” witnesses as 
not useful.

In a brief closing, defense counsel Cooksey argued that the 
evidence supporting the future dangerousness special issue 
was insufficient. Id. at 2590-95. He said that the State had 
failed to present expert testimony in support of danger 
ousness and that “the testimony they have that would involve 
Delma in any future acts of violence is the statement of 
Robert Farr.” Id. at 2591. He urged the jury to be wary of 
Farr’s testimony—” I plead with you, please examine Robert 
Farr’s testimony.” Id.

In rebuttal, the prosecutor reinforced the importance of 
Farr’s testimony. He told jurors it was “of utmost sig­
nificance.” Id. at 2593. The jury found that the State’s 
evidence established the statutory special issues and the 
judge imposed a sentence of death. Id. at 2598-2602.7

B. Post-Conviction Proceedings
Thereafter, Banks sought post-conviction relief, first in the 

Texas state courts and then in the federal courts. On January 
13, 1992, Banks filed a state habeas application and pleaded, 
inter alia, claims alleging prosecutorial misconduct that 
included the handling of State witnesses Farr and Cook and a 
claim of ineffective assistance of counsel at both the guilt and 
penally phases of trial.8 The state trial court recommended

7 On direct review, (lie Texas Court of Criminal Appeals affirmed the 
conviction and death sentence. Banks v. State, 643 S.W.2d 129 (Tex. 
Crim. App. 1982), cert, denied, Banks i\ Texas, 464 U.S. 904 (1983).

s Banks had Tiled two earlier petitions challenging his capital convic­
tion and sentence. The first was filed on December 27, 1983 and denied 
by the Court of Criminal Appeals on February 29, 1984 in an unpublished 
order. Ex parte Banks, No. 13, 568-01. The second was filed on May 2, 
1984 and denied in a published opinion. Ex parte Banks, 769 S.W.2d 539 
(Tex. Crim. App. 1989). In those actions Banks did not raise the claims 
presented herein.

9
denial of these claims and never acted upon requests for 
discovery and an evidentiary hearing. The Court of Criminal 
Appeals accepted these recommendations and denied relief.9

Banks filed his application for federal habeas relief on 
March 7, 1996,1(1 raising the same claims. As he had in state 
court, he moved for an evidentiary hearing and for limited 
discovery. 1FH 303, 2FH 527.

1. Farr Misrepresentation and Suppression 
Claim

Banks alleged that Farr was a paid informant, that he set 
up Banks’ arrest, that these critical facts were known to the 
trial prosecutors, and that they suppressed them. Banks 
sought discovery and an evidentiary hearing on this claim. 
The Magistrate Judge initially denied discovery because 
Banks failed to make specific allegations as required by 
Harris v. Nelson, 394 U.S. 286 (1969). 2FH 586.

Thereafter, Banks supplemented his discovery requests 
with affidavits from five state witnesses. Each asserted that 
significant portions of their trial testimony against Banks 
were misleading or false, and that they had testified falsely 
under pressure from law enforcement officials. 2FH 598-619. 
Robert Farr and Charles Cook both recanted important 
aspects of their trial testimony and described their previously 
undisclosed involvement with law enforcement prior to trial. 
Vetrano Jefferson disavowed his penalty-phase testimony 
insofar as it accused Banks of being the aggressor in the early 
April, 1980 fight. JA 337. Carol Cook, Charles Cook’s sister,

IJ The procedural history of these proceedings is both complex and 
crucial to the resolution of the issues before this Court. To promote 
clarity, we will discuss that history in the Argument section relating to 
each claim.

10 This case is governed by prc-AEDPA standards except for 28 
U.S.C. § 2253, relating to certificates of appealability. Lindli v. Mmphy, 
521 U.S. 320 (1997); Slack v. McDaniel, 529 U.S. 473 (2000).



10
stated that Deputy Huff told her to testify that the car in 
which she saw Banks and her brother riding was green, 
though the one she saw was actually red. JA 333. Marcus 
Jefferson, the person who had driven to Dallas with Banks 
and Robert Farr, stated that it was Farr’s idea, not Banks’ 
idea, to go to Dallas to obtain a gun. JA 334.

On the basis of these proffers, Banks again moved for 
discovery concerning impeachment material, and for an 
evidentiary hearing. 2FH 618. The proffers led the Magistrate 
Judge to reconsider and order disclosure of files in the State’s 
possession relating to these witnesses. The Magistrate Judge 
thereafter ordered an evidentiary hearing. 3FH 625-31.

At the hearing Banks presented evidence that proved 
beyond doubt that Farr had served as a paid informant during 
the investigation which led to charging Banks with White­
head’s murder; that that status was known to the prosecutors; 
and that key portions of Farr’s trial testimony were inac­
curate and misleading. Farr, who was then residing in Cali­
fornia, testified by declaration that in 1980 he was an 
informant for several law enforcement agencies, including 
those in Texarkana, and that Deputy Huff requested his 
assistance in Banks’ case. Farr agreed to help because he 
believed that if he refused, Huff would arrest him on drug 
charges. Farr demanded money and Huff agreed to and did 
pay him $200. Farr testified that he then went to work to “set 
Delma up.”

I told Delma that 1 wanted to rob a pharmacy to get 
drugs but that I needed his gun to do it. I did not really 
plan to commit a robbery but I told Delma this so he 
would give me his gun. 1 talked a lot about my plan to 
Delma and finally convinced him that I needed his gun 
for the robbery.

JA at 438.
Farr thereafter apprized Deputy Huff when Farr, Banks 

and Marcus Jefferson drove to Dallas. After Banks was

i

arrested, Farr was free to leave even though he had been 
carrying drugs. He also received an additional $25 from 
another law enforcement officer working on this case. JA 439.

Trial prosecutor Elliott testified, and confirmed that Farr 
had served as an informant in this case. Huff testified that he 
had personally recruited Farr and paid him $200. 6FH 54-55; 
6FH 89. Neither Elliott nor HulT disputed the substance of 
Farr’s declaration nor claimed that Farr’s informant status 
had been disclosed to defense counsel previously.

2. The Ineffective Assistance of Counsel Claim
Banks pleaded ineffective assistance at both phases of trial. 

Because the stale court held no hearing on this claim and 
made no findings, the Magistrate Judge ordered a limited 
hearing. 1FH 32-33; 1SH 88H 15.

At the federal hearing, Banks presented the following 
evidence, which was consistent with the evidence lie had 
proffered in the state courts. Two psychologists, Gregorio 
Pina and Mark Cunningham, found that Banks was beset 
with a chronic, uncontrollable skin disorder that led to 
unending pain, disfigurement, and irreparable damage to his 
sense of self-worth. “Front Mr. Banks’ birth, he has suffered 
from a severe and chronic dermatological illness character­
ized by hives, rashes, and severe and uncontrollable burning 
and itching of the skin. . . .  As a result of his condition, Mr. 
Banks suffered from chronic raw and bleeding skin and hives 
. . . .” JA 207. Throughout his developmental years, he often 
displayed this acute, disfiguring skin condition. “This is not a 
subtle rash. We’re talking about weeping, oozing, bleeding 
lesions and sores and cracks in the skin.” JA 355. These sores 
drew such disgust and degradation from his peers that Banks 
grew socially, as well as physically, deformed, and came to 
view himself as grotesque. “He was ridiculed by peers who 
responded to these open, oozing sores with teasing and 
disgust. . . .” JA 355. “[These sores] also had catastrophic 
consequences for Mr. Banks’ emotional and psychological



I

development. Mr. Banks learned to see himself as he thought 
the world saw him: as a ghastly, frightful, monstrous eyesore. 
. . .” JA 208 (emphasis in original).

'flic evidence documented other handicaps to Banks’ 
development as well: he functions as borderline mentally 
retarded, has significant short term memory and communi­
cation deficits, and shows indications of organic brain 
impairment. See JA 205-206, 353-54.

In addition, Banks was the target of his alcoholic father’s 
repeated acts of abuse and physical trauma. “It was a climate 
of physical abuse and emotional terrorization that was 
directed toward Delma Banks by his father. . . . [He] was 
beaten with a bell, strap, horse whip, extension cord, coat 
hanger.” JA 351-52. On numerous occasions, from the lime 
that he was an infant through his developmental years, he had 
to flee the home with his mother and siblings to escape his 
father’s drunken rage. On other occasions, he was “beaten 
and terrorized by his alcoholic father; at least one such 
beating involved young Delma’s being tied to a tree and 
whipped,” JA 207, “and then left with statements of how the 
wild animals were going to find him and begin to chew on 
him during the night.” JA 352.

Mr. Banks’ full psychological evaluation revealed that he 
was not likely to engage in future acts of violence in the 
structured setting of prison. “[S]ome of these features of Mr. 
Banks’ psychological profile accurately would have pre­
dicted that he would prove a ‘safe,’ nonviolent inmate during 
his present incarceration. . . . He is best described as a docile, 
obedient, and subservient person who is eager to please even 
those who incarcerate him.” JA 210-11. “The prison system 
provides a significant degree of external structure to help 
insulate and support the damages that have occurred to 
somebody up to that time. . . . [I]n the frame work of prison 
with work and confinement and structure and treatment and 
staff, it helps block and insulate much of the adverse

13
expressions and damage that might have otherwise been 
done.” JA 358.

At the hearing, Vetrano Jefferson admitted that his trial 
testimony had been false and that he, not Banks, was the 
aggressor during their fight. “I was drunk that day . . . and I 
was threatening my sister and he delended her. . . .” 6FH 
166. When asked who started the fight, Jefferson staled “I 
did.” Id. He also testified that he never spoke to defense 
counsel prior to trial and that he would have been willing to 
do so if they had asked to speak with him about the incident. 
Id. at 168."

Banks’ mother testified that trial counsel demanded a fee 
of $10,000 but the family could pay only $1,000. 6FH 221. 
She recounted that “[h]e never did tell me anything that 1 was 
supposed to say or [that] he was going to ask me or what’s 
going to happen.” Id. at 227. This echoed her proffered 
evidence in state court that “I had no idea what Mr. Cooksey 
was going to ask me or what exactly I could say to help 
Delma Jr. . . .  I just begged the jury to spare my son’s life, 
but if Mr. Cooksey had helped me get ready to testify I know 
I could have told the jury more important things about my 
son’s life.” 2SH 11.

The Director presented only one rebuttal witness—defense 
investigator Dennis Waters. 6FH 334. Waters conceded that 
Cooksey never requested that he take a social history Irom 
Banks or obtain school records. Id. at 340. He confirmed that 
his efforts focused mostly on the guilt phase rather than the

" James Kelly, a defense penalty-phase witness, also testified at the 
federal hearing. 6FH at 232. Prior to trial, he had never been contacted by 
the defense nor told that he would likely be a witness. Even on the morning 
of the sentencing hearing, 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 
Fair’s use of bogus prescriptions to secure drugs. IOR 2248-50. (Kelly’s 
name was spelled “Kelley” in the trial transcript, but “Kelly ’ in the federal. 
For consistency, “Kelly” is used throughout this brief.)



14
punishment phase of trial. Id. at 336. He said that Banks told 
him prior to trial that Banks had hitchhiked to Dallas during 
the early morning hours of April 12 but that Banks was 
unable to-provide Waters with the name of the individual 
who picked him up, and therefore Waters did not believe 
Banks’ account. Id. at 337.

3. The Cook Misrepresentation and Suppression 
Claim

Banks alleged suppression of evidence that critically 
impeached prosecution witness Charles Cook. Given Cook’s 
central role in the Slate’s case for guilt, Banks argued that 
such evidence was plainly material. 1FH 46. After Banks 
proffered Cook’s declaration, the Magistrate Judge ordered 
limited discovery and a hearing. 2FH 584, 588. Included in 
the materials Banks obtained on April 14, 1999 were 74 
undated transcript pages of Cook speaking to law enforce­
ment officials shortly before Banks’ trial.

This transcript, which had never been turned over to the 
defense, indicated, inter alia: (1) that when Cook gave his 
initial statement to police in April of 1980, Cook was 
frightened of being arrested and going to jail himself12; (2) 
that Cook had been drinking on the evening and early 
morning hours of April 23-24; (3) that police fed Cook 
critical information about the crime which lie otherwise did 
not know13; and (4) that Cook’s interrogators repeatedly

12 “Well, you know the morning that I gave this statement, uh, I was 
seated and I wanted to hurry up and get it over with, so they won’t lock 
me up, and I wanted to get back home to my family . . . I’m scared of 
jails, you know, I don’t like being around no jail house.” JA 31.

1 Cook stated on three occasions that he knew the exact dale that 
Banks had first come to Dallas because the police had told him the date of 
the murder before he gave his statement. Cook also said that before he 
gave his statement, the police had told him when the murder took place, 
and that they specifically referred to the murder victim as a “white boy.” 
JA 20.

15
expressed concern about his credibility and his ability to 
testify at trial consistently with his initial, April, 1980 state­
ment. An assistant prosecutor at one point told Cook 
forthrightly that his April statement must be “screwed up” 
because it lacked a great deal of information that Cook was 
now providing and that some portions of his statements 
simply made no sense. JA 24.

Prior to the hearing, both parties agreed that this transcript 
would be submitted into evidence. At the hearing. Banks 
introduced the transcript and extensively examined prose­
cutor Elliott about it. 6 FH 75. Elliott confirmed that the 
transcript had not been turned over to the defense at trial, id. 
at 47, and had been disclosed only to comply with the 
Magistrate Judge’s discovery order. Id. 69. Counsel for the 
State also examined Elliott about the transcript, attempting to 
establish that it did not show Cook had been rehearsed or 
directed to testify falsely. 6FH 54-55.

SUMMARY OF ARGUMENT
Egregious error by both prosecution and defense counsel 

deprived Banks of a fundamentally fair verdict at both phases 
of his capital trial.

1. The record now demonstrates clearly that the prose­
cution relied on perjured testimony to secure Banks’ death 
sentence. Robert Farr, who served as a paid informant in this 
case, repeatedly told the jurors that he had no relationship 
whatsoever with law enforcement. And the prosecutors 
themselves assured the jurors that Farr had testified honestly. 
This is a flagrant violation of Due Process under Napue v. 
Illinois, 360 U.S. 264 (1959), and its progeny. These decep­
tions were highly prejudicial because Farr was the State’s 
central sentencing phase witness and provided (he most 
important evidence to demonstrate that Banks would likely 
commit future acts of violence, a necessary finding for a 
capital sentence in Texas. Kyles v. Whitley, 514 U.S. 
419 (1995). The evidence demonstrating the Due Process



16
violation was properly before the federal court because the 
prosecutors promised to provide such material at trial and 
suppressed it. Banks’ repeated attempts to raise Farr’s infor­
mant status at trial and again in state post-conviction pro­
ceedings were defeated due to the prosecution’s suppression, 
interference and misstatement, not through inattention or 
neglect by Banks. Strickler v. Greene, 527 U.S. 263 (1999); 
Williams v. Taylor, 529 U.S. 420 (2000).

2. Defense counsel provided plainly deficient represen­
tation at Banks’ capital sentencing hearing. Counsel per­
formed no investigation and presented witnesses whom he 
had never interviewed. See Williams v. Taylor, 529 U.S. 362 
(2000); Strickland v. Washington, 466 U.S. 668 (1984). A 
reasonably conducted investigation would have revealed 
compelling mitigation evidence showing that Banks was 
repeatedly abused by his alcoholic father; that he functions 
in the borderline retarded range; that he has other significant 
mental impairments; and that since birth he has lived with a 
disfiguring skin disease that led to continuous, devastating 
humiliation and isolation. Such evidence is relevant to moral 
culpability, and the failure of counsel to prepare and present 
it was prejudicial. See Williams, 529 U.S. 362 and Wiggins 
v. Smith, 539 U.S. (2003). Banks’ evidence supporting 
this claim was properly before the lower courts. See Vasquez 
v. Uillery, 474 U.S. 254 (1986).

3. The record also shows that the prosecutors suppressed a 
pretrial statement made by their key guilt-phase witness 
Charles Cook which would have shown the jury that Cook 
lied about not having been prepared by prosecutors for his 
testimony and that he repeatedly gave inconsistent statements 
during the prep sessions. This issue was not adjudicated 
below because the District Court determined that Banks had 
not specifically enumerated this claim in his petition, even 
though the issue was tried at the evidentiary hearing. The 
Court of Appeals in turn held that Banks was not entitled to a 
Certificate of Appealability on the question whether Rule

17
15(b) of the Federal Rules of Civil Procedure applies to 
habeas hearings. This ruling is flatly inconsistent with Miller- 
El v. Cockrell, 537 U.S. 322 (2003), because jurists of reason 
would find the issue debatable. Indeed, this Court has long 
assumed that Rule 15(b) applies in habeas. Withrow v. 
Williams, 507 U.S. 680 (1993). Given Cook’s central role in 
the State’s case for conviction-as the only witness tying 
Banks to the crime-the failure to disclose the statement 
violated Due Process. See Kyles v. Whitley, 514 U.S. 419 
(1995).

ARGUMENT
I. The State Violated Due Process By Concealing A 

Key Witness’s Paid Informant Status And By 
Vouching for That Witness’s Known False 
Testimony

The District Court and Fifth Circuit reached different re­
sults on this issue. The District Court accepted the Magistrate 
Judge’s finding that “ftjhe state attempted to portray Farr’s 
involvement with Banks as one of an innocent acquaintance” 
while the record showed conclusively that Farr was a paid 
informant. It also accepted the Magistrate Judge’s finding 
that Farr’s misrepresentation prejudiced Banks.14

14 “Fan was one of the only two witnesses called by the State during 
the punishment phase. He 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 clear purpose of this testimony was 
to persuade the jury that Banks posed a continuing danger to society. 
Fan’s testimony was misleading and inaccurate. At no time did the State 
correct Fan’s erroneous testimony or announce Fan’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.’” Pet. App. C at 43-44.



18
The Court of Appeals overturned relief for two reasons. 

First, it held that the district court had erred in granting a 
hearing and in considering Banks’ evidence because Banks 
had failed to present the evidence in state court and had not 
shown cause and prejudice to excuse his failure. Pet. App. A 
at 16-23. Second, it held that any undisclosed evidence, while 
favorable to Banks, was not material under the materiality 
standard of United States v. Bagley, 473 U.S. 667, 682 
(1985); because Farr had already been otherwise impeached, 
there was no reasonable probability that the jury would have 
found differently on the fulure-dangerousness special issue. 
Pet. App. A at 24-33.

A review of the record reveals that the District Court 
was correct to admit the evidence and grant Banks sentenc­
ing relief.

A. The Farr Claim Was Not Adjudicated in 
State Court Because the Prosecution Con­
cealed the Relevant Facts

In Banks’ 1992 state habeas filing, he pleaded that the 
prosecutors engaged in “wholesale misrepresentation of 
material facts to the jury at both phases of trial.” 1SH 131-32. 
As an example, the petition alleged that “upon information 
and belief, the prosecution knowingly failed to turn over 
exculpatory evidence [that] . . . would have revealed Robert 
Farr as a police informant and Mr. Banks’ arrest as a ‘set 
up.”’ Ul. at 137.15 The Stale made no response to this 
claim.16 On February 22, 1993, the trial court filed Findings

15 In support of this claim, Banks proffered the testimony of Demetra 
Jefferson, Banks’ common-law wife. She stated, inter alia, that Robert 
Farr was addicted to prescription drugs and was well-connected with area 
law enforcement. 2S11 138-39.

1,1 As with all claims pleaded in the petition, the State opposed an 
evidentiary hear ing and asserted that the Court of Criminal Appeals could 
adequately resolve any disputes over the facts “upon review of official 
court records and without need for an evidentiary hearing.” 4SH 42.

19
of Fact and Conclusions of Law that made no finding on this 
claim. Pet. App. G. The Court of Criminal Appeals accepted 
the trial court’s recommendations and summarily denied 
relief. Pet. App. F at 3.

Banks again raised the claim in his federal petition and the 
State moved for summary judgment due to the absence of 
supporting evidence. 1FH 109. The Magistrate Judge at first 
denied discovery, 2FH 586, but ordered a hearing after Banks 
filed Farr’s declaration.17 2FH 588.

The facts developed at the hearing showed that Farr fled 
Texas shortly after the Banks trial at the urging of his law 
enforcement handlers and would not have spoken to Banks’ 
representative until the fall of 1996, nine months after stale 
proceedings had concluded. JA 444. Trial prosecutor Elliott 
and Deputy Huff testified as well. Neither asserted that he 
had revealed Farr’s informer status prior to the hearing or 
would have done so without the hearing. Indeed, before Huff 
would confirm that Farr was his informant, lie sought 
clarification from the Magistrate Judge that he could answer 
the question. 6FH 87.

IF The District Court Correctly Found That 
Farr’s Deception Denied Banks Due Process 
in Sentencing

After hearing all of the relevant evidence, the Magistrate 
Judge found that governing law required the Slate to disclose 
its relationship to Farr, that Farr’s status as a paid informant 
was undisclosed, that portions of Farr’s testimony were 
misleading and inaccurate and went uncorrected, and that 
Banks had established “materiality.” 5FH 1132-33. Her 
recommendation to grant penalty relief was correct. The Due 
Process Clause forbids official misrepresentations of fact and

17 The Magistrate Judge noted that the State objected to the hearing on 
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), grounds, and carried that 
objection along with the hearing. 6FH 10.



20

requires disclosure of evidence that probably could aid the 
defense to obtain a different outcome.IK The failure of a 
prosecutor to correct the false testimony of a prosecution 
witness also violates Due Process. Alcorta v. Texas, 355 U.S. 
28 (1957); Napue v. Illinois, 360 U.S. 264, 269 (1959) 
(noting that the Due Process prohibition against the State’s 
knowing use of false testimony includes that which “goes 
only to the credibility of the witness”).

This Court extended the rule prohibiting misrepresentation 
to require disclosure of known exculpatory and impeachment 
evidence in the seminal case of Brady v. Maryland, 373 U.S. 
83 (1963) (exculpatory material), and again in Giglio v. 
United States, 405 U.S. 150 (1972) (impeachment material). 
The Brady Court imposed upon prosecutors “an affirmative 
duty to disclose evidence favorable to the defense,” Kyles v. 
Whitley, 514 U.S. 419, 432 (1995), in part because allowing 
them to withhold evidence that could change the outcome of 
a trial “casts the prosecutor in the role of an architect of a 
proceeding that does not comport to the standards of justice 
..."Brady, 373 U.S. at 88.|g

See, e.g. Mooney v. Holohan, 294 U.S. 103 (1935); Pyle v. Kansas, 
317 U.S. 213 (1942); Miller v. Pate, 386 U.S. 1 (1967).

In subsequent cases, (lie Court has established the materiality 
standards that courts are to apply to determine whether misrepresentation, 
deception or withholding of evidence deprived the defendant of a fair 
trial. In United States v. Agios, 427 U.S. 97, 103 (1976), the Court held 
that a conviction obtained by the knowing use of perjured testimony is 
fundamentally unfair, and must be set aside “if there is any reasonable 
likelihood that the false testimony could have affected the judgment of 
the jury.” Id. Agios distinguished the two remaining categories where 
helpful evidence was not disclosed based on the type of request made. Id. 
In United States v. Bagley, 473 U.S. 667 (1985), however, the Court 
“abandoned the distinction between the second and third Agurs 
circumstances,” Kyles, 514 U.S. at 433, and established a common 
materiality standard for all favorable evidence, irrespective of the type of 
request made. Id. When the prosecution has withheld exculpatory or

There is no doubt that once the prosecutors decided to call 
Farr as a witness at Banks’ trial, they had a duty to disclose 
that he had served as a paid informant in the case, lloffa v. 
United States, 385 U.S. 293 (1966); Bagley, 473 U.S. at 676 
(compensation paid to a witness can show interest or bias and 
is impeaching). Such disclosure is crucial because it allows 
the defense to cross-examine the witness and government 
agents about the compensation arrangement and the terms of 
the witness’s relationship to the government and gives the 
jury a basis for assessing the witness’s motivation.

Nor is there any doubt that the Magistrate Judge was 
correct in finding that Farr’s status was not disclosed to the 
defense, and that his misrepresentations went uncorrectcd by 
the prosecution. The record unmistakably shows that the 
prosecutors made a deliberate choice both to let Farr lie about 
his status and then to assure jurors that his dishonest 
testimony was the truth. The District Court’s acceptance of 
the Magistrate Judge’s report on this point is unassailable. 
FRCP 52; Anderson v. Bessemer City, 470 U.S. 564 (1985).

The Magistrate Judge also found that “the State placed 
great reliance on Farr’s testimony during the punishment 
phase,” and “characterized Farr’s punishment phase testi­
mony as ‘of the utmost significance,’ because it helped 
establish that Banks posed ‘a danger to friends, and strangers 
alike.”1 5FH 1133. Under these circumstances, she concluded 
that the undisclosed impeaching material held a reasonable 
probability of a different result. Id. This finding of mate­
riality under the proper standard, note 19 supra, is fully 
supported by the record.

The State’s case for a death sentence was weak. Banks had 
no prior convictions, and the Stale produced no law en-

impeachment evidence, relief is to be ordered if the court finds a 
reasonable probability that the trier of fact would have reached a different 
outcome had the evidence been disclosed and used at trial. Bagiev, 473 
U.S. at 677.



22
foreenienl witnesses who testified that he had a violent or

V;.:. :V"
dangerous reputation. Neither did the State present a mental 
health witness to opine that Banks would likely be a danger in 
the future. Instead, it presented only Vetrano Jefferson’s 
testimony about his fight with Banks one week prior to the 
crime (since shown to be misleading, pages 33-34, infra), and 
Farr. Farr’s testimony that Banks sought a pistol to commit 
armed robberies was most damaging to Banks because, if 
believed, it would provide a solid basis for the jury to find a 
reasonable likelihood of additional acts of violence. Thus, 
when the prosecutor subsequently argued his case for the 
death penalty, he focused on Farr’s testimony, and no other 
evidence, to persuade the jury that the .Stale had established 
the future dangerousness special issue. 10R 2577-81.

Given the importance of Farr’s testimony, it was critical to 
the State’s case that the jurors find him credible. Therefore, 
the prosecutors portrayed him as a lay witness who had no 
prior or current association with law enforcement. During the 
guilt phase, defense counsel asked him directly, “have you 
ever taken any money from some police officers?” He replied 
unequivocally, “No.” 9R 2274. In argument, the prosecution 
told the jury that it should find Farr especially credible, in 
part, because he admitted that he used illegal drugs. “You 
know, he lias been open and honest with you in every way."
I OR 2579 (emphasis added).

The suppression of Farr’s paid informant status made this 
fiction possible. Had that information been disclosed, he and 
his testimony would have been cast in a dramatically different 
light. Despite the prosecution’s earlier argument to the jury 
that it should “search [its] memories and recall the testimony 
and see il [it could] discern any reason why these people 
would lalsily lor vcngence [sic] or for advantage or to save 
their hides,” adding, “I didn’t see any,” 10R 2448, Farr was 
no disinterested witness. Cooksey attempted to ask Farr, 
“And you know that you’re drawn up tight over that, and 
you’re going to testify to anything anybody wants to hear,

23
aren’t you, Robert?” IOR 2505. Farr replied with a more 
powerful question, “Can you prove it?” Id. The Stale 
remained silent. Cooksey persisted, “I asked you a question, 
Robert.” Id. Farr replied again, simply, “No, can you prove 
it?” Id. Cooksey could not prove it, and the State made no 
effort to provide the truth to either judge or jury.

Had Farr’s status been known, the jury could have dis­
missed him as a thoroughly compromised witness who would 
do and say anything to remain on the street. The limited, and 
failed, attempts to impeach Farr created the false impression 
that such efforts were baseless. Had the truth been disclosed, 
the defense effort to show that the older, craftier Farr had set 
up the younger Banks would have made sense. Thus, the 
defense could have discredited Farr’s most damning testi­
mony, that Banks sought to arm himself in order to rob and, if 
necessary, kill again.

Given that the Magistrate Judge found Farr’s testimony to 
be deceptive, Banks was entitled to relief iT “the false 
testimony could . . . in any reasonable likelihood have 
affected the judgment of the jury.” Giglio v. United Stales, 
405 U.S. 150, 154 (1972); United States v. Agios, 427 U.S. 
97, 103 (1976). Banks’ evidence surely met this standard. In 
addition, because of the central importance of Farr’s testi­
mony to the State’s case for death, the suppression of com­
pelling impeachment evidence comported a reasonable like­
lihood of affecting the outcome. See Bagley, 473 U.S. 667, 
683 (1985).

C. The Fifth Circuit Disregarded Settled Law in 
Vacating Relief
1. The Fifth Circuit’s materiality ruling is 

erroneous
The Circuit panel recognized that Farr's testimony was 

crucial to the State’s case for death but nevertheless held that 
Farr’s informant status was not material. Pel. App. A at 33. 
This conclusion was based upon three factors: Fair’s



24
testimony was largely corroborated by other witnesses, Farr 
was generally impeached, and Banks had to satisfy the Bagley 
reasonable probability standard rather than the Giglio 
reasonable possibility standard because his petition raised 
only a Brady and not a Giglio claim. Id. at 31. The panel 
erred itt each finding.

First, while Farr’s account of the trip to Dallas was 
corroborated, his most damaging assertion—that Banks went 
to Dallas to arm himself and planned to commit armed 
robberies on the way home—was corroborated by no one. 
I he State did not and could not establish Banks’ future 
dangerousness on Farr’s corroborated testimony; instead, the 
prosecutor urged the jury to find that Banks probably would 
commit violent future acts solely on the basis of Farr’s 
assertion of Banks’ intent. I OR 258 I.

Second, the impeachment evidence that was pul before the 
jury-namely, Farr’s drug habit and his unreliable reputation 
as an informant in another slate—did not shatter his cred­
ibility. The prosecution got around that impeachment by 
touting Farr’s disinterested status in this case. The revelation 
of Farr’s informer role would have demolished the prose­
cution’s ploy, and would have “put the whole case in a 
different light so as to undermine the credibility of the 
verdict,” Kyles v. Whitley, 514 U.S. 419, 435 (1995), pre­
cisely because the prosecution went out of its way to depict 
Farr falsely as a disinterested witness with no axe to grind. 
Morever, one of the witnesses presented to impeach Farr 
appeared in court drunk, 6FH 233, and the other was about to 
take a job with the defense investigator. 10R 2559-60. Their 
evidence was a far cry from what has now emerged as 
suppressed impeachment evidence: Farr’s admission, the lead 
investigator’s admission, and the prosecutor’s admission that 
Farr was a paid informer and lied in denying it.

Third, Banks pleaded a misrepresentation claim in his 
petition, he proved misrepresentation, and the Magistrate

25
Judge found misrepresentation in both Farr’s testimony and 
the prosecutor’s knowing misleading of the jury. Giglio's 
materiality standard applies.

2. The Supporting Evidence Was Not 
Defaulted

Solely because Banks did not produce Farr and Huff’s 
testimony in state post-conviction proceedings, the Fifth 
Circuit taxed him for failing to do so and held that he had not 
shown sufficient cause to allow this evidence to be presented 
below. Pet. App. A at 18-20. This ruling affronts Strickler v. 
Greene, 527 U.S. 263 (1999), and Williams v. Taylor, 529 
U.S. 420 (2000).

To determine whether a habeas petitioner has defaulted a 
claim or supporting evidence by not presenting it in state 
post-conviction proceedings, a federal habeas court must 
examine the entire state record to sec if the State interfered 
with discovery or presentation of the relevant facts. In 
Strickler, the Court reviewed a court of appeals decision, 
much like the present one, which had held that state habeas 
counsel’s insufficient diligence in investigating the basis of a 
Brady claim defaulted the claim. The court of appeals there 
found ample public notice to alert counsel to the existence of 
the witness statements that were subsequently disclosed, and 
held that counsel’s failure to pursue these accessible leads 
defaulted the claim.

This Court disapproved that analysis and held that the 
reasonableness of state habeas counsel’s conduct must be 
assessed in the light of relevant trial court proceedings. In 
those proceedings, the prosecutor purported to maintain an 
open-file discovery policy, and defense counsel had reviewed 
the file on several occasions. The documents that became (he 
basis of the Brady claim were not in the file. Because it was 
reasonable for trial counsel to conclude that the prosecutor 
would discharge his duty and disclose all exculpatory mate-



26
rial, the Court reasoned that “if it was reasonable for trial 
counsel to rely on, not just the presumption that the prose­
cutor 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 upon their examination, we think such reli­
ance by counsel . . . in state habeas proceedings was equally 
reasonable.” Strickler, 527 U.S. at 284; accord, Williams v. 
Taylor, 529 U.S. 420 (state habeas counsel did not default 
evidence of juror bias by failing to seek it in reasonable 
reliance on the assumption that the juror and the prosecutor 
would reveal such evidence if they were aware it existed).

1 hese cases show that Banks adequately explained why his 
facts in support of the Farr claim were not first presented in 
state-court proceedings. At the trial level, he was told again 
and again that Fair was not an informant. These denials were 
more direct than in Strickler. Banks tried repeatedly to raise 
this issue in the trial court; Farr’s denials and the prosecutor’s 
ringing endorsement of Farr’s deception are the reasons why 
Farr’s informant status was not exposed at trial. Similarly, in 
state post-conviction proceedings, Banks attempted to raise 
the issue. But when he pleaded the claim, the prosecutor— 
like the one in Williams—said nothing; he ignored the claim, 
despite his knowledge of the tacts supporting it. The record 
here further shows that Farr was not available: at the sug­
gestion of his law-enforcement handlers, he fled Texas 
shortly after Banks’ trial and went to California so that he 
could not be found by those, like Banks, whom he had 
implicated. JA 444. His declaration establishes unequivocally 
that he would not have provided Banks with any information 
until the fall of 1996, long after the state courts had dismissed 
Banks’ habeas case. JA 444. Banks had no reason to believe 
that Huff, a member of the prosecution team, would belie 
Farr’s explicit trial testimony, backed by the prosecutor’s

27
assurances that Farr was telling the truth. Moreover, because 
of this record, he had no good-faith basis to seek discovery.2,1

In short. Banks repeatedly sought to litigate his Farr claim 
in the state courts; his efforts were frustrated by suppression, 
denial and deception on the State’s part. The Fifth Circuit 
erred in overturning relief on the claim because of Banks’ 
supposed “failure” to present his finally discovered evidence 
earlier.

II. The Fifth Circuit Erred in Reversing The 
District Court’s Grant of Relief for Counsel’s 
Ineffectiveness

The District Court and the Fifth Circuit reached different 
results on Banks’ Sixth Amendment claim. Although there 
was no disagreement that trial counsel’s performance was 
deficient, the courts below disagreed in the application of the 
prejudice prong of Strickland v. Washington, 466 U.S. 668 
(1984), and about what evidence of prejudice was properly 
before them.

A. Ranks Presented the Same Claim and
Supporting Facts Before the State and 
Federal Courts

In state court, Banks’ ineffective assistance claim alleged, 
inter alia, that trial counsel did not prepare for the penalty 
phase. Counsel made no investigation into Banks’ lifelong 
handicaps and disabilities and made no effort whatsoever to 
prepare penalty-phase witnesses for their testimony or even

20 Banks did seek discovery on two other prosecution misconduct 
issues for which he was able to proffer a good-faith basis. He sought 
discovery and funds to investigate his jury discrimination claim and the 
Cook impeachment claim, and supported these requests with affidavits 
attesting a likelihood of merit. These motions were ignored and never 
acted upon by the state court, even after Banks filed supplemental 
motions and requests for rulings. JA 214-32.



28
to speak to them before calling them to the stand. 1SH 
112-15.

Banks proffered the affidavits of his parents, a mental 
health professional, and other witnesses in support of this 
claim. Mrs. Banks’ statement explained that (1) her 
husband’s drinking nearly tore the family apart and often 
required her and the children to run away from home to avoid 
physical harm; (2) her son suffered from a life-threatening 
hyper-allergenic condition from birth that led to constant 
humiliation and shattered his self-image; (3) it was only after 
the guilty verdict that trial counsel Cooksey urged her to 
contact ministers for the penalty phase; and (4) because she 
had no prior warning that counsel would call her as a witness 
at the penalty phase, all she could think to do. when called 
was to beg the jury to spare her son’s life. 2SH 11. Mr. 
Banks, Sr.’s proffer said that he too had no warning that he 
would be called. 2SH 15. (He also said that during trial, the 
State offered Delma, Jr. a life sentence and that his son turned 
t down because he was innocent. 2SH 17.) Demetra 
fefferson’s proffer stated that she informed defense inves- 
igator Waters before trial that her brother, Vetrano Jefferson, 
lad started the fight with Banks that ended with Banks 
lining Vetrano with a pistol-a basis for the State’s 
iubmission that Banks represented a future danger and so 
oust be sentenced to dcath-and that she would have so 
estified if called. 2SII 137.

Banks also proffered testimony from psychologist 
jregorio Pina.21 Dr. Pina determined that Banks suffered 
rom brain impairment which caused significant language and 
:ognitive disabilities. He also found that Banks had 
'experienced numerous intense traumas during his childhood 
ts a direct result of his abusive, alcoholic father’s beating and

21 Ail initial report by Dr. Pina was filed with the state habeas petition 
n January, 1992; a supplemental report was filed with the Court of 
Criminal Appeals in February, 1993. JA 198-211.

29
terrorizing him. He confirmed that Banks suffered from 
chronic bleeding skin and hives throughout his life and that 
these “largely untreated symptoms” led to disfigurement and 
distress. Dr. Pina proffered Mr. Banks’ Stanford-Binet Short 
Term Memory Intelligence score of 67 and his Abstract and 
Visual Reasoning score of 61. JA 206. Dr. Pina concluded 
from Banks’ entire profile that he was likely to be a 
nonviolent inmate in a highly structured environment such as 
prison.22 JA 210-1 1.

The State’s answer urged denial of the claim without a 
hearing and asserted facts as if they had already been 
established. For example, the answer asserted that ‘“ the 
totality of the representation’ afforded the Applicant in the 
instant case is beyond reproach. At all times Cooksey was 
fully prepared for the sentencing hearing, despite allegations 
to the contrary. He began preparation of his punishment 
phase file well in advance of the actual sentencing date. 
Cooksey affidavit” 4SII 19. (The answer several times 
referred to a “Cooksey affidavit,” though no such affidavit 
accompanied it. Banks replied that “the State cannot properly 
rely on ‘strategic reasons’ for Cooksey when he has been 
unwilling to sign the Stale’s prepared affidavit.”2' 5SH 9.

The trial court recommended denial of the claim, sum­
marily reciting that Cooksey provided effective assistance, 
“including] adequate and effective investigation of matters 
relevant to both the guill/innoccnce and punishment phases

22 Banks also proffered the testimony of Robert Harlan, an auto 
mechanic, who opined after reviewing the record that it was highly 
unlikely that Mr. Whitehead’s car could have made the trip from 
Texarkana to Dallas— 180 miles— without repairs that would have taken 
a trained mechanic hours to complete. 2SH 149.

22 Thereafter, Cooksey filed a brief affidavit in which he staled without 
particulars that “the decisions made and the actions taken on behalf of 
Delma Banks were the result of my professional judgment.” 5SH 137. 
He said he was unaware of Banks’ mental impairment and skin ail­
ments. Id.



30
of trial.” Pet. App. G at 3, 7. The Court of Criminal Appeals 
adopted this finding. See Pel. App. F.

In his federal petition. Banks pleaded the same claim. 1FH 
32-38. Because the stale courts had conducted no hearing and 
made no findings of fact, the Magistrate Judge ordered a 
limited hearing directed at, inter alia, the adequacy of trial 
counsel’s preparation for the penalty phase and failure to 
have Banks examined by a mental health expert. 2FH 626- 
28.

B. Both Courts Below Agreed, and Properly Held, 
That Counsel’s Performance Was Deficient

In two recent cases, this Court has provided detailed 
guidance concerning the responsibility of counsel to prepare 
adequately for a capital sentencing hearing. In Williams v. 
Taylor, 529 U.S. 362 (2000), the Court determined that 
counsel’s failure to begin preparation for the sentencing 
hearing until a week before trial, and subsequent failure to 
uncover and present evidence showing his client’s highly 
traumatic and abusive childhood, showed deficient perform­
ance. In Wiggins v. Smith, 539 U.S. __ (2003), the Court
held that while counsel did take steps to identify helpful 
mitigating evidence, his performance was unreasonable 
because he failed to follow up on information indicating that 
Wiggins had a depraved childhood and had been the victim 
of sexual abuse.

By these lights, the present record fully supports the lower 
courts’ conclusions of deficient performance. Before trial, 
Cooksey made no investigation of Banks’ social history or 
mental health. He did not obtain a mental-health evaluation 
of Banks, or attempt to speak to Stale penalty-phase 
witnesses, like Vctrano Jefferson, who would have spoken to 
him. Moreover, he delegated to Banks’ mother—at 11:00 
p.m. after the guilty verdict and when she was on her way to 
a hospital after collapsing—the task of assembling mitigation 
witnesses for the following morning. 6FH 225-26. He put

31
those witnesses on the stand without ever speaking to them, 
and during the penalty hearing admitted on the record that he 
did not know who the witnesses were or how they could help. 
IOR 2536. This was plainly substandard performance.

C. I he District Court's Prejudice Determination 
is Fully Consistent with Williams and Wiggins

The Magistrate Judge properly considered all the available 
evidence and held that Banks had established a reasonable 
probability of a different outcome. 5111 1206-07. This judg­
ment, approved by the district court, is demonstrably correct.

Banks’ undeveloped mitigation evidence, which the dis­
trict court credited and which the State made no effort to 
dispute, is precisely the kind that this Court has found 
relevant to moral culpability. Wiggins, No. 02-31 I, Slip Op. 
at 23 (June 26, 2003); Williams, 529 U.S. 362; Penry v. 
Lynaugh, 492 U.S. 302 (1989). The present case is very 
similar to Williams in regard to what the jury heard, and did 
not hear, in mitigation. There, trial counsel presented 
testimony from Williams’ mother and two neighbors and a 
taped statement from a psychologist. “The three witnesses 
briefly described Williams as a ‘nice boy’ and not a violent 
person.” Williams, 529 U.S. at 369. The psychologist’s 
statement informed jurors that in prior crimes, Williams had 
removed bullets from his gun so he would not hurt his 
victims. In post-conviction proceedings, Williams presented 
evidence that as a child, he had endured extensive abuse and 
neglect at the hands of his parents, was borderline mentally 
retarded, and was likely to be a non-violent prisoner, hi. at 
395-96. The Court found that the absence of this evidence at 
trial “prejudiced Williams within the meaning of Strickland,” 
id. at 396, even though Williams—altogether unlike Banks— 
had an extensive record of violent crimes.

Banks’ jury heard a similarly meager mitigation case and 
did not learn of the abuse Banks endured from his alcoholic 
father, nor of his borderline intellectual functioning, nor of



32
his other neurological deficits, nor of his lifelong chronic 
skin pain and disfigurement and the resulting social rejec­
tion and isolation, nor of his likelihood for a non-violent 
adjustment to prison.

While Banks’ unheard mitigation alone makes his case 
quite like Williams, the cases differ significantly with regard 
to aggravation. Williams made no effort to show that the 
State’s aggravating evidence was inaccurate; Banks dis­
credited much of the State’s aggravating evidence. Robert 
Farr recanted his testimony that Banks planned to commit 
acts of violence. JA 438-39. Vetrano Jefferson made clear 
that he, not Banks, was the aggressor, in their brief fight. 6FH 
166. The Magistrate Judge credited both. 5FH 1112, 1131-32. 
Thus, unlike Williams, little remains of the State’s case for 
the death penalty beyond the crime itself. Because “a verdict 
or conclusion only weakly supported by the record is more 
likely to have been affected by errors than one with over­
whelming record support,” Strickland v. Washington, 466 
U.S. 668, 696 (1984), the District Court correctly determined 
that trial counsel’s dismal performance prejudiced Banks 
during the penalty phase of his capital trial.

I). The Fifth Circuit Erred in Denying Relief
Although the district court found that Banks met his 

burden of proving a reasonable likelihood of a different 
result, the Fifth Circuit reversed. It concluded that the district 
court had erred in considering evidence from witnesses 
whom Banks had not proffered in the state courts. Moreover, 
instead of inquiring whether the remaining mitigating evi­
dence, considered collectively, demonstrated a reasonable 
likelihood of a different result, the Circuit panel erroneously 
weighed each category of mitigation separately and found 
each—in isolation—wanting. Pet. App. A at 36-44.

33
J. Banks did nut rely upon unexhausted 

evidence
The Court of Appeals believed that because Banks did not 

proffer before the stale courts the testimony of Vetrano 
Jefferson and Dr. Cunningham, their testimony below was 
not exhausted and thus could not be considered. Pet. App. A 
at 38, 42. This ruling is inconsistent with precedent because 
Banks exhausted both his legal claim of penalty-phase 
ineffectiveness and its factual basis by proffering evidence 
comprehending the testimony that Jefferson and Cunningham 
gave below.

Before a federal habeas petitioner can present facts in 
support of a constitutional claim, s/he must have presented 
the state courts with the same factual basis for the claim. 
No more is required. See Vasquez v. Hillery, 474 U.S. 254 
(1986). Banks did this with respect to the facts of his 
ineffectiveness claim.

a. The facts to which Jefferson and 
Cunningham testified were pleaded 
and proffered in state court

Banks’ state petition asserted in support of his Sixth 
Amendment claim that prosecution witness Vetrano Jeller- 
son’s penalty-phase testimony was misleading in casting 
Banks as an unprovoked aggressor, 1SH I 12, when in truth 
Jefferson was intoxicated and was responsible for the light. 
To sustain this allegation, Banks proffered the testimony of 
Demetra Jefferson, Vetrano Jefferson’s sister, who witnessed 
the events. 2SH 137.

Banks’ state petition also alleged in detail that trial counsel 
had not performed a social or psychological investigation for 
mitigating evidence. 1SH 91-103. To sustain these allega­
tions, Banks proffered, inter alia, reports by psychologist 
Gregorio Pina evaluating Banks’ history and clinical con­
dition. JA 198-211.



34
The State offered no contradictory facts; it urged the state 

courts to deny the claim without an evidentiary hearing. The 
trial court did not hold a hearing, made no findings, and 
summarily concluded only that counsel had provided effec­
tive assistance at all phases of the trial. That court never 
reached the issue of prejudice in recommending a denial of 
relief. The Court of Criminal Appeals accepted this recom­
mendation by fiat. See Pet. App. F.

b. The federal testimony was consistent 
with these proffers

In the absence of any state-court factfinding, the Magis­
trate Judge properly conducted a limited hearing on this 
claim. See Townsend v. Sain, 372 U.S. 293 (1963). To prove 
the alleged fact that Vetrano Jefferson’s penalty-phase testi­
mony was misleading, Banks presented Vetrano Jefferson 
himself instead of Dcmetra Jefferson. Vetrano Jefferson’s 
testimony is entirely consistent with that proffered to the state 
court-that he, rather than Banks, was the aggressor and 
initiator in the fight between the two that was the subject of 
his penalty-phase testimony.

Banks also called Dr. Cunningham, rather than Dr. Pina, to 
testify about Banks’ disabilities and social history. The scope 
of Dr. Cunningham’s testimony was consistent with the con­
tents of Dr. Pina’s proffered state-court testimony. Dr. Cun­
ningham discussed Banks’ intellectual functioning and 
limitations, the allergies and suppurating sores and their 
effects upon Banks’ development, Delnta, Sr.’s alcoholism 
and abusive treatment of Dclma, Jr. and other family mem­
bers. Like Pina, he offered an assessment of Banks’ like­
lihood to commit future violent acts./46FH 243-63.

24 In only one respect was Cunningham’s testimony different in kind 
from Pina’s proffer. Pina came to the view after his clinical assessment 
that Banks would likely pose no particular danger in a controlled prison 
environment. Cunningham came to same conclusion after performing a 
risk assessment, and after having thoroughly reviewed the literature on 
this matter that was in existence at the time of Banks’ trial. 6FH 243-63.

35
Thus, the facts presented by these witnesses at the hearing 

below had been specifically pleaded and proffered before the 
state courts. The sole difference was that Banks used 
different witnesses to present the facts. This Court has never 
held that fact-exhaustion requires a habeas petitioner to 
present the same witness at a federal hearing as before the 
state court. The relevant inquiry is whether the facts pre­
sented before the federal court substantially or fundamentally 
altered the claim that was presented before the slate court. 
Here they did not.

2. The panel misapplied Strickland’s prej­
udice test

The Court of Appeals also erred in its purported appli­
cation of Strickland’s prejudice lest to the facts it deemed 
exhausted. In Strickland, the Court explained that:

When a defendant challenges a death sentence . . . , the 
question is whether there is a reasonable probability that, 
absent the errors, balance of aggravating and mitigating 
circumstances did not warrant death. In making this 
determination, a court the sentence!' . . . would have 
concluded that the hearing an ineffectiveness claim must 
consider the totality of the evidence before the judge or 
jury.

466 U.S. at 695. And recently in Wiggins, the Court stressed 
that “[i]n assessing prejudice, we teweigh the evidence in 
aggravation against the totality of the available mitigating 
evidence.” Wiggins v. Smith, No. 02-311, Slip Op. at 22 
(June 26, 2003).

Instead of weighing the totality of the mitigating evidence, 
the Court of Appeals segregated the evidence into three dis­
crete categories, Dr. Pina’s mental health testimony, Banks’ 
parents’ testimony, and Vetrano Jefferson’s testimony. With 
regard to Dr. Pina’s testimony, even though Pina reported 
brain damage, the terrorizing of Banks by his father, and the 
ghastly skin disorder whose oozing lesions disfigured Banks



36
and destroyed his sense of self, the panel concluded that the 
evidence “while possibly mitigating, docs not present a 
reasonable probability that, had the jury been presented with 
it, it would not have assessed the death penalty.” Pet. App A 
at 39. The panel next considered the parents’ testimony, 
framing the issue as whether counsel’s failure to present that 
evidence raised a reasonable probability that “the jury would 
not have assessed the death penalty.” Id. at 40. Then, after 
ruling that Vetrano Jefferson’s testimony was not exhausted 
and thus could not be considered, it held alternatively that this 
evidence, also taken by itself, failed to show a reasonable 
probability of a lesser sentence. Id. at 41. Never did the panel 
weigh tdl of this evidence against the aggravating evidence 
as Strickland and its progeny require. See, e.g., Kyles v. 
Whitley, 514 U.S. 419 (1995).

III. The Court of Appeals Erred in Denying a CO A 
On the Cook Nondisclosure Claim
A. The Record Leaves No Doubt That The Non- 

Disclosure Claim Was Litigated By Implied 
Consent of the Parties Within the Meaning of 
FRCP 15(b)

Beginning with his habeas petition, continuing through 
efforts to gain discovery, and leading up to the evidentiary 
hearing below. Banks again and again put the Slate on notice 
that his Brady claim concerning Charles Cook included, but 
was not limited solely to, the assertion that Cook testified 
pursuant to a deal for dismissal of the arson charge pending 
against him. While the State did oppose the hearing on all 
claims under Keeney v. Tantayo-Reyes, 504 U.S. I (1992), it 
never argued that Banks was expanding his legal claim to 
cover grounds beyond those he had pleaded. Thus, when the

25 The characterization of this uncontested evidence as only “possibly 
mitigating,” is also contrary to this Court’s repeated holdings that mental 
limitations, child abuse and major medical ailments are unquestionably 
mitigating. E.g., Penry v. Lynaugh, 492 U.S. 302 (1989).

37
subject of non-disclosure of the pretrial statement was 
addressed at the hearing, both Banks and the State agreed 
that the 74 pages of transcript would be admitted, and both 
examined prosecutor Elliott aboul its origin, contents, and 
belated disclosure to the defense. 6FH 43-47, 103-05. If 
ever an issue was tried with the consent of the parties, it was 
this one.

Banks gave adequate notice of this issue in his petition. He 
alleged, inter alia, a broad prosecutorial misconduct claim 
and charged that the prosecution had withheld Brady mate­
rial. 1FH 46. He provided a specific example—the allegation 
of a deal for Cook’s testimony but he also made clear that the 
grounds of the claim “includfed] but [were] by no means 
limited to” that one example. 1FH 43. He also moved for 
discovery on the claim. Id. at 291.

The State’s answer leaves no doubt that it understood that 
Banks was pleading a broad suppression claim. The State 
acknowledged, under the heading “The State did not suppress 
favorable, material evidence,” that Brady imposes “an 
affirmative duly [upon the trial prosecutors] to disclose to the 
defense evidence that is both favorable to the accused and 
material to guilt or punishment,” and that “such favorable 
evidence includes impeachment evidence.” IFII 204-05. The 
response further acknowledged that Banks was contending 
that “the State suppressed material impeachment evidence in 
connection with its witness Charles Cook.” Id. at 207.

Continuing efforts begun in state court, Banks again tracked 
down Cook, and this time secured a signed declaration. 
JA 322-27. Among other things, Cook asserted, contrary to his 
trial testimony, that he had engaged in extensive discussions 
with law enforcement officials about his testimony shortly 
before trial. JA 325. This led Banks to move again for 
discovery. Largely because of Cook’s detailed declaration, the 
Magistrate Judge granted limited discovery and ordered the 
production of records in the possession of the State that 
concerned, inter alia, “interview notes, and all other written



38
or recorded documentation” concerning Charles Cook. 
2FH 621.

In compliance, the State disclosed, for the first time, 
portions of the District Attorney’s file. One document con­
tained in that file consisted of 74 transcript pages of a pretrial 
interview between law enforcement officials and Charles 
Cook. After these disclosures, and well in advance of the 
scheduled evidentiary hearing, the Magistrate Judge issued an 
order establishing the issues upon which the parties could 
submit evidence. The court understood that Banks wanted to 
present evidence on three issues, the first one being “whether 
Petitioner’s Fourteenth Amendment rights were violated by 
the State’s withholding critical exculpatory and impeaching 
evidence concerning at least two important witnesses— 
Charles Cook and Robert Farr.” 2FH 625-26. The Order 
restated the State’s position on this issue: no such hearing 
should lake place because Banks “has had an adequate 
opportunity to develop the factual background in state court.” 
2FH 626. Notably the State made no objection of surprise, no 
assertion that Banks was expanding his Due Process claim, 
and no contention that any portion of the issues upon which 
the Magistrate Judge would hear evidence was unexhausted 
or unanticipated.

Thereafter, the State provided notice that it w'ould use this 
very exhibit to defend against the Due Process claim, 3FH at 
689, and that it would call Assistant District Attorney Elliott 
and former Bowie County Deputy Sheriff Willie Huff “to 
defend against the due process claim.” 3FH 689. Similarly, 
Banks made it very clear that he would use the Cook pretrial 
statement—Exhibit B-04—to establish the Due Process 
claim. 3FH 736.

At the hearing, the claim that the prosecutors had sup­
pressed important impeachment material as to Cook took 
center stage. Counsel for Banks opened by stating that he 
would prove, inter alia, that the trial prosecutors had

39
unconstitutionally withheld impeachment evidence with re­
gard to Cook. See 6FH 8. Banks’ counsel examined 
prosecutor Elliott as to his understanding of the duly to 
disclose exculpatory and impeachment material. 6FH 25-27. 
When he examined Elliott about Cook’s statement, Elliott 
confirmed that the document, Exhibit B-04, had not been 
disclosed at trial. 6FH 43-47. On redirect, counsel returned to 
the issue and asked Elliott to review portions of the document 
that showed a staff prosecutor coaching Cook on how to 
answer questions concerning an earlier, April, 1980 state­
ment by Cook which, in the interviewer’s view, made little 
sense. 6FH 64-68. On further redirect, Elliott was asked yet 
additional questions about inconsistencies between Cook’s 
trial testimony and statements in Exhibit B-04. 6FH 72-74. 
Without objection, the Magistrate Judge admitted the exhibit 
into evidence. 6FH 75. Banks included an extensive dis­
cussion of this issue in the Proposed Findings of Facts and 
Conclusions of Law which he submitted to the Magistrate 
Judge, and he reiterated that discussion in his objections to 
the Magistrate’s report and recommendation. 4F11 921, 930- 
31,953-60; 5FH 1 184, 1 185-86.

Given the undisputed facts that (I) Mr. Banks explicitly 
pleaded a Due Process claim of suppression of Brady 
impeachment material in his petition; (2) the State made clear 
in its first responsive pleading that it understood the claim to 
include suppression of impeachment material concerning Mr. 
Cook; (3) the discovery process forced the Stale to reveal for 
the first time Cook’s extensive eve-of-trial statement; (4) the 
Magistrate Judge and the parties agreed that one issue to be 
litigated at the evidentiary hearing was w’hethcr the trial 
prosecutors withheld material impeachment evidence; (5) the 
pretrial statement, Petitioner’s Exhibit B-04, was introduced 
and admitted without objection as evidence relevant to the 
claims at issue; and (6) stale witnesses were extensively 
questioned about both the circumstances of the taking of this 
statement and its tardy disclosure, it could not be plainer that



40
this issue was “tried” by consent of the parties.26 See, e.g., 
Mongrue v. Monsanto Co., 249 F.3d 422, 427 (5th Cir. 2001); 
Stcger v. General Electric, 318 F.3d 1066, 1077 (11th Cir. 
2003); Clark v. Martinez, 295 F.3d 809, 815 (8th Cir. 2002); 
People for the Ethical Treatment of Animals v. Doughney, 
263 F.3d 359, 367 (4th Cir. 2001); see also, Pals v. Schepel 
Buick, 220 F.3d 495, 501 (7th Cir. 2000).

B. The Cook Issue Was Properly Before (he 
Federal Courts, Pursuant to Federal Civil Rule 
15(b) and the Rules Governing Habeas Corpus 
Proceedings

Although Banks’ petition claimed that the State withheld 
Brady material concerning key guilt-phase witness Charles 
Cook, and although that issue was tried at the evidentiary 
hearing, the lower courts refused to adjudicate the claim with 
respect to the non-disclosure of Cook’s 74-page statement. 
Their refusal to reach the merits of the issue and to grant 
relief on it was unwarranted. Even if they were correct that 
this portion of the claim was not sufficiently pleaded, it was

26 That the Fifth Circuit should have considered the Cook prosecutorial 
misconduct claim as litigated by consent of the parties is further 
supported by this Court's analysis in Rod! v. Withrow, 123 S.Ct. 1696 

(2003). In Rocll, the Court reaffirmed the principles of litigation by 
consent of the parties: when parties appear before a court, litigate their 
claims, stand silently as the court adjudicates those claims and express no 
reservation about the court’s jurisdiction over the claims, the parties are 
deemed to have consented to litigation in that court. See id. at 1700, 1701 
(“|T|he record shows that [the petitioners] voluntarily participated in the 
entire course of the proceedings before the Magistrate Judge, and voiced 
no objection when, at several points, the Magistrate Judge made it clear 
that she believed they had consented.”).

27 In fact, the issue was adequately pleaded in Banks’ petition. Rule 
2(c) of the Rules Governing § 2254 Cases sets forth the pleading standard 
for claims in habeas petitions. It provides in relevant part, “[the petition] 
shall specify all the grounds which are available to the petitioner and of 
which he has or by the exercise of reasonable diligence should have 
knowledge and shall set forth in summary form the facts supporting each

41
properly before lhe district court for adjudication under Rule 
15(b) of the Federal Rules of Civil Procedure.

Rule 15(b) provides: “[w]hen issues not raised by the 
pleadings are tried by express or implied consent of the 
parties, they shall be treated in all respects as if they had been 
raised in the pleadings.” A “failure to so [actually] amend 
does not affect the result of the trial of these issues.” The 
district court, however, held these provisions inapplicable to 
evidentiary hearings in habeas corpus matters, and the Fifth 
Circuit denied a COA to review that holding.

Both of these rulings fly in the face of precedent. It is 
settled that the Federal Rules of Civil Procedure apply to 
habeas corpus proceedings unless there is some inconsist­
ency between a particular civil rule and the Rules Governing 
§ 2254 Cases in the United States District Courts or a 
traditional peculiarity of habeas practice.”x There is no such

of the grounds thus specified.” The Court has construed this provision as 
requiring litigants to plead tacts sufficiently so as to show “a real pos­
sibility of constitutional error,” Btackledge v. Allison, 4 3 1 U.S. 63, 75-76 
& nn.7 & 8 (1977), or “the factual underpinnings of [the| claim] |.” 
McFai land v. Scott, 512 U.S. 849, 860 (1994) (O’Connor, J., concurring 
in part and dissenting in part). Banks pleaded the suppression of Brady 
material, and he could not pinpoint the exact nature of the suppressed 
material solely because of the State’s successful withholding of the 
statement in question. 1FH 46.

“8 Rule 11 of the Rules Governing § 2254 Cases in the United States 
District Courts provides that ”[t]he Federal Rules of Civil Procedure, to 
the extent that they are not inconsistent with these rules, may be applied, 
when appropriate, to petitions filed under these rules.” Federal Civil Rule 
81(a)(2) states that the civil rules apply to habeas proceedings “to the 
extent that the practice in such proceedings is not set forth in statutes of 
the United States and has heretofore conformed to the practice in civil 
actions. Consistently with these provisions, the Court has long applied a 
straightforward approach in determining which rules of civil procedure 
apply in the habeas context: The civil rules presumptively apply unless a 
§ 2254 rule or an accepted habeas practice is incompatible with the 
specific civil rule. See Browder v. Director, Dep't of Corrections, 434 
U.S. 257, 267-68, 269 (1978); Hilton v. Bnnmskill, 481 U.S. 770. 775-76,



42
inconsistency in the case of Rule 15(b). Indeed, this Court 
lias previously characterized Rule 15(b) as one of a number 
of “noncontroversial rules” that the federal courts have ap­
plied in habeas proceedings. Harris v. Nelson, 394 U.S. 286, 
294 n.5 (1969).211 More recently, in Withrow v. Williams, 507 
U.S. 680, 695-96 & n.7 (1993), the Court assumed Rule 
15(b)’s application to a habeas proceeding. There, a prisoner 
had filed a one-claim federal petition alleging that his 
custodial statements were taken in violation of Miranda v. 
Arizona, 384 U.S. 436 (1966). The district court found that 
statements taken from him prior to the administration of 
Miranda warnings should have been suppressed and ordered 
a new trial. In addition, it adjudicated a second issue and held 
that his statements taken after the administration of the 
Miranda warnings were involuntary. The warden protested 
that this second adjudication was improper because Williams 
had not raised the involuntariness claim in either the state 
courts or his federal habeas petition. Williams argued that 
although he had not pleaded the involuntariness claim in the 
petition, it had been tried by implied consent of the parties. 
This Court expressed no qualms about the general ap­
plicability of Rule 15(b) to habeas cases but reversed the 
lower court’s grant of relief on the involuntariness ground 
because the record “revealjed] neither thought, word, nor 
deed of [the warden] that could be taken as any sort of 
consent to the determination of an independent due process

& n.5 (1987) (quoting Harris v. Nelson, 394 U.S. 286, 294 (1969)); see 
also McFarland v. Scott, 512 U.S. 849, 866 n.2 (1994) (Thomas, J., 
dissenting) (“The Federal Rules of Civil Procedure apply in the context of 
habeas suits to the extent that they are not inconsistent with the Habeas 
Corpus statute.”).

29 This has been accepted Fifth Circuit practice as well. See, e.g., 
James v. Whitley, 926 F.2d 1433, 1435 (5th Cir. 1991); Robinson v. 
Wade, 686 F.2d 298. 304 & n.10 (5th Cir. 1982); Streeter v. Hopper, 618 
F.2d 1178, 1180 (5th Cir. 1980); Mosley v. Dutton, 367 F.2d 913, 914 
(5th Cir. 1966).

43
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.” Withrow, 507 
U.S. at 696. See also Calderon v. Ashntus, 523 U.S. 740, 750 
(1998) (Breycr, J., concurring).

Ibis line ol authority strongly suggests that the decision 
of the district court below categorically barring the ap­
plication ol Rule 15(b) to habeas corpus evidentiary hearings 
is wrong. At the least, it is a decision that jurists of reason 
would find debatable; and thus the Court of Appeals erred in 
denying a COA to review it. Miller-El v. Cockrell, 537 U.S 
322, I23S.Q. 1029, 1039(2003).

C. The Suppressed Evidence Allowed The 
Prosecutors to Misrepresent Cook’s Credibility

The suppressed pretrial statement establishes that Cook 
perjured himself when he denied at trial that he had spoken 
with piosecutors about his testimony. The prosecutors not 
only failed to correct this false testimony but urged the jury 
to believe it. Such sponsorship of perjury is a plain violation 
of Napue v. Illinois, 360 U.S. 264 (1959), and Alcorta v. 
Texas, 355 U.S. 28 (1957).

Moreover, the suppressed statement contains an extraor­
dinary array of impeachment evidence, the suppression of 
which undermines confidence in the outcome of the guilt 
phase ol Banks trial. Given that Cook’s credibility was key 
to the Slate’s case for a capital conviction, and that the 
defense’s trial strategy was to demonstrate that he was an 
untrustworthy witness, there is a reasonable probability of a 
different result had the pretrial statement been timely dis­
closed to the defense. Kyles v. Whitley, 514 U.S. 419 (1985).

1. The Napue/Alcorta violation

District Attorney Raffaelli established during opening 
statements that Charles Cook was a central witness and that 
only he could link Banks to the crime. 9R 2128-30. Yet,



44
contrary to their promise that the jury would gain a full 
picture of the case from Cook’s testimony, the prosecutors 
allowed Cook to obscure significant information and mislead 
the jury time and again about his credibility and his incentive 
to testify against Delma Banks.

The prosecution permitted Cook to testify perjuriously that 
lie had never rehearsed his trial testimony with the 
prosecutors. 9R 2314.,(> In closing arguments, the prose­
cution assured the jurors that they had no reason to doubt 
Charles Cook’s credibility. I0R 2450, 245331 Again, the 
truth—-documented in 74 pages of pretrial rehearsal 
transcript- is that not only did Cook lie when he claimed not 
to have discussed his testimony with the prosecutors, but the 
prosecutors themselves misrepresented the truth and withheld 
evidence bearing directly on Cook’s credibility.32

2. The extraordinary array of impeachment
Alter Cook’s direct examination, the prosecution turned 

over to the defense Cook’s April, 1980 statement to police. 
9R 2312. Cooksey indicated that that was the first time he 
had seen Cook’s statement and asked for a recess so that he 
eould read it before cross-examining Cook. Id. Cooksey’s 
central defense strategy was to impeach Cook. Id. at 2314-15, 
2322-23, 2324, 2465, 2466-68, 2469, 2470, 2471. Had the

“A: I haven’t talked to anyone about [my testimony]. Q: Haven’t 
talked to anybody? A: No, sir. Q: Mr. Raffaelli just put you on the stand 
not knowing what you were going to testify to? A: That’s what I’m 
telling you.”

11 “Charles Cook didn’t hide anything from you . . . Charles Cook 
brought you the absolute truth.”; “Charles Cook didn't budge from the 
truth, and that’s ample evidence that Charles Cook is telling the truth.”

’2 Cook also testified during the federal evidentiary hearing that he met 
several times with trial prosecutors before he testified against Banks. 
6FII 134 (“Prior to trial, l . . . spoke extensively with trial prosecutors.”); 
id. at I4(S (“1 participated in three or four . . . practice sessions prior to the 
[Banks] trial.”).

45
prosecution abided by its promise to turn over all dis­
coverable material, which certainly included the 74-page 
pretrial transcript, Cooksey would have been armed with an 
impeachment at serial. Instead, the Slate disclosed only the 
earlier, April statement, which was for the most part 
consistent with Cook s trial testimony. This consistency was 
itself concocted: the 74-page undisclosed transcript reveals 
the prosecutors literally hammering Cook’s testimony into 
the mold of the April, 1980 statement.

Comparison of the disclosed April, 1980 statement, the 
undisclosed 74-page transcript, and Cook’s trial testimony 
reveals the following inconsistencies, among others:

Concerning Blood on Banks’ Clothes and Banks’ Change 
of Clothes'. In the 74-page transcript, Cook was asked to tell 
the prosecutors when he first noticed blood on Banks’ pants. 
He replied that he saw the blood on Banks’ pants after Banks 
took Cook’s wile to work that morning. JA 24. Assistant 
Distiict Attorney McDaniel berated Cook for this response, 
saying “It does not make any sense that he changed clothes 
and you got back into the car and went riding and then you 
noticed blood on his pants because if he changed clothes he 
wouldn’t have had any blood on his pants.” JA 24. McDaniel 
then provided specific direction on how to handle this 
problem if it arose at trial: “(Tjhey are going to ask you about 
it and you arc just going to have to explain it. That you might 
[sic] a mistake and you got your facts out of sequence.” 
■fA 24. Immediately alter “correcting” Cook’s chronology of 
when Banks had changed his clothing, McDaniel questioned 
Cook about contradictory statements that Cook had made 
regarding the color of the clothing. JA 24.33 Then McDaniel

Initially, during Cook’s pre-trial testimony. Cook stated that “[he] 
put him in a pair of blue pants,” and “a lblue| flowered shirt to go with 
(his] blue pants. JA 6. Yet, in Cook’s April statement, he had given a 
different account, stating that he gave Banks a brown pair of p;uits and 
blue shirt. McDaniel pointed out the discrepancy. JA 24. In response. 
Cook claimed that his April statement was incorrect. JA 24.



46
gave Cook this instruction: “Anyway, the way this statement 
should read is that . . .  on the way back [from the hotel] you 
noticed blood on [Banks'] pants so you look him home and 
changed his clothes[.]” .)A 26 (emphasis added). Apparently, 
Cook got the message. At trial, Cook testified to that order of 
events and, in addition, avoided giving any specific 
description of the clothing. 9SR 2281-91.

Concerning When Cook First Spotted Banks’ Gun: In 
April, Cook told the prosecutors that he first noticed Banks’ 
gun on Saturday night before Banks confessed to the killing. 
JA 447. Yet, in the 74-page transcript, at first Cook said that 
he saw Banks’ gun on Sunday night when he took Ihe gun 
from him because he wanted to protect his family. JA 11. 
The 74-page transcript reflects that after hearing this 
statement, McDaniel inquired whether Cook had ever seen 
the gun before Sunday night. JA 11. Cook responded that the 
first time he saw the gun was in the console of the car on the 
Saturday morning that Banks arrived in Dallas. JA 11. When 
McDaniel asked Cook whether he could tell him what was 
inconsistent between what he had just reported and what he 
had told police in April, Cook recognized that in April, he 
had not reported seeing the pistol in the console of the car, as 
he had just a few minutes prior to McDaniel’s question. 
JA 28. Nevertheless, during the pretrial rehearsal session, 
Cook again stated not only that he saw Banks’ pistol on 
Saturday morning in the car, but that he showed Banks his 
own gun when they returned to Cook’s home on Saturday in 
order to demonstrate that he was not intimidated. JA 35. At 
trial, Cook testified that he first saw the gun on Saturday 
night when Banks allegedly confessed to him and that he felt 
threatened thereafter. 9R 2296-97. The trial testimony was 
consistent with his initial statement to police, that was turned 
over to the defense. JA 447.

Concerning Disposal of the Car: Cook gave conflicting 
accounts of his disposal of the car that he said Banks was 
driving. In the 74-page transcript, Cook stated that he had

47
left the car on ‘Town Drive” and left the keys in the ignition. 
JA 12-13. Yet, in his April statement, Cook had said that he 
had left the car at Canna Drive” and left the car keys under 
the seat. JA 448. Again, McDaniel read Cook his April 
statement that contained the inconsistent story; but either 
McDaniel did not mention the name of the street or that name 
was not transcribed.34 Thereafter, McDaniel said, “Now you 
told me a minute ago you left the keys in the ignition.” JA 30. 
Going along with the version that was consistent with his 
April statement, Cook replied, “I left them up under the scat.” 
JA 30. Then McDaniel said, “Which one is it[?]” Cook 
responded, “I left them up under the seal.” JA 30. At trial. 
Cook simply testified that he dumped the car on Canada 
Diive on Tuesday morning, and said nothing about where he 
left the keys. 9R 2303-04.

Concerning the Disposal of Other Physical Evidence: In 
his April statement, Cook indicated that on the day after 
Banks left Dallas, Cook not only dumped the car but sold the 
car’s radio, booster cables, tool box and Banks’ pistol to 
Cook’s friend across Ihe street. JA 448. In the 74-page 
transcript, Cook said that Banks sold the car’s radio. JA 13. 
Also, when McDaniel asked Cook when Cook sold the items. 
Cook demonstrated considerable confusion about which day 
it was. JA 13-14. After questioning Cook about his other 
inconsistent statements, McDaniel returned to Ihe issue of 
whether Cook or Banks sold the car’s radio. McDaniel said, 
“Now you told us that Delma sold that cassette . . . | .]” J A 30. 
Cook maintained his position that Banks had sold the 
tadio. JA 30. As a result, McDaniel asked, “Your statement 
says that you sold it . . . That’s not right?” Id. Cook said, 
“Nof.]” JA 30. At trial, the benefits of McDaniel’s coaching 
were evident during this part of Cook’s testimony. Cook told

The 74 page transcript at this point reads: “|T|he next morning
around 6:00 I took the hot car and left it at (lie end o f ________drive with
the keys under the seat.” JA 30.



48
the jury that he sold his neighbor ihe tool box, the cables, and 
the gun, on Tuesday evening. 9R 2305. He did not mention 
anything about a car radio. Id.

Concerning Activities in Dallas on Saturday Morning: In 
the 74-page transcript, Cook reported that on the Saturday 
when Banks arrived in Dallas, Cook initially took Banks to a 
friend’s home where Banks could lake a bath. JA 6. Banks 
disappeared upstairs in Cook’s friend’s home for several 
minutes and then returned without bathing and asked Cook to 
take him to a motel. JA 6. Cook never mentioned this 
significant detail in his April statement. Presumably this fact 
would have been important to police because, if true, it 
would have provided additional witnesses who had seen 
Cook and Banks together and could have connected them to 
the Mustang. Again, McDaniel noticed the discrepancy; 
McDaniel questioned Cook specifically about why Cook had 
left the visit to the friend’s house out of Cook’s April 
statement; and McDaniel went on to question whether other 
problems beset Cook’s stories. (“Okay, there is nothing in 
your [April] statement about taking him to a friend’s house 
. . . Didn’t you tell me before that the police told you you 
needed to put everything in there you knew? . . . But you 
didn’t do that. . . What all else did you leave out. You left 
that out of your statement.”). J A 25-26.

Concerning the Motive for the Slaying: In the 74-page 
transcript, Cook gave a different motive for the killing than 
he had given in his April statement or later gave at trial. The 
transcript discloses Cook saying on at least two occasions 
that Banks killed Richard Whitehead because Banks wanted 
to steal Whitehead’s car. JA 8-9. According to this version of 
the murder-motive information. Cook asked Banks why 
Banks shot the victim, and Banks said “[U]h I don’t know 
man 1 wanted his car man.” JA 9. Yet, Cook had told the 
police in his April statement that Banks said he killed 
Whitehead “for the hell of it.” JA 447. Once more, McDaniel 
noted this significant inconsistency and set about reconciling

49
Cook’s stories. JA 28. McDaniel read Cook the relevant 
portion ol his April statement and said, “You realize what 1 
just read you is different that [sic] what you told me before?” 
JA 28. Cook responded affirmatively. JA 28. After 
correcting several other parts ol the statement, however, 
Cook maintained, once again, that Banks killed Whitehead 
for his car and he said nothing further in the transcript about 
Banks’ killing Whitehead “for the hell of it.” JA 28. Then, at 
trial Cook-forewarned by McDaniel’s concern to avoid 
inconsistencies-testified more or less consistently with his 
Apiil statement that Banks told him Banks decided lo kill 
Whitehead for the hell of it. 9R 2295.35

The prosecutors were acutely aware that successful im­
peachment ol Cook would have dismantled their case against 
Banks. Defense counsel’s efforts to impeach Cook were 
crippled by the prosecution’s suppression of the multiple 
inconsistent statements in the 74-page transcript. There 
can be no doubt, as the prosecutors contemporaneously

Other significant discrepancies in Cook’s statements, which the 
prosecutors called to his attention in the 74-page transcript, included: 
Cook’s failure to mention in April that Whitehead and Banks had been 
accompanied by Whitehead’s dale (“[T|his is by far the most important part 
of your statement. . .  And you were supposed to put down every detail, and 
you didn’t do that, you left out something real important about Ihe fact that 
there was a girl with him. That’s not even in your statement at all."), JA 28; 
Cook’s inability to report accurately how many times the victim had been 
shot, JA 29; his failure lo report in April that he had told his wife about 
Banks’ confession, JA 29; his failure to mention that Banks phoned home 
while staying with the Cooks, and his failure to include in his April 
statement that Banks had later phoned Cook requesting that Cook mail 
Banks his gun (“[Y|our statement doesn’t say anything about Delma calling 
you on Thursday, or he called you twice before the police came to your 
door. He called once and talked to you and once called and talked to Ida. 
You didn’t pul anything in your statement about that. . . You didn’t think it 
was important to put in there that Delma called you and wanted you lo mail 
him his pistol back?”), JA 30-31.



50
recognized, that turning that transcript over to the defense 
was likely to affect the outcome of Banks’ trial. So they did 
not turn it over.

CONCLUSION
The decision of the Fifth Circuit should be reversed.

C l ifio n  l. Holm es 
P.O. Drawer 3267 
Longview, TX 75601 
(903) 758-2200 
Laura  Fe r n a n d e z  
HOLLAND & KNICH I 
195 Broadway 
New York, NY 10007 
(212)513-3295

Respectfully submitted, 

Elaine  R. Jones

Director Counsel
T heodore  S haw

Deputy Director Counsel
G eorge H. K endall  
Janai S. N elson  
M iriam Go h ara  

Assistant Counsel 
NAACP Legal  D efense  

& Ed u c a tio n a l  Fu n d , In c . 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

Counsel fo r  Petitioner

July 11,2003 * Counsel of Record