Carlson v. Green Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    No. 01-40058

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

DELMA BANKS, JR.

Petitioner-Appellee,

-vs-

GARYJOHNSON, DIRECTOR 
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

INSTITUTIONAL DIVISION,

Respondent-Appellant.

On Cross-Appeal & Application for Certificate of Appealability 
from the United States District Court for the Eastern District of Texas

Texarkana Division

BRIEF FOR PETITIONER-APPELLEE

TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

Petitioner-Appellee Delma Banks, Jr., was convicted and sentenced to death 

m Bowie County, Texas in violation of the United States Constitution. The District 

Court granted habeas corpus relief as to sentence but denied guilt relief. The District



Court was correct to grant sentencing relief but erred in denying full relief. This Court 

should affirm the grant of sentencing relief, issue a certificate of appealability with 

regard to the claims raised herein that the District Court did not find meritorious, and 

award relief as to conviction as well.

STATEMENT OF JURISDICTION

This appeal involves a habeas corpus petition brought by Mr. Banks pursuant 

to 28 U.S.C. §§ 2241, 2254. On May 11, 2000, the Federal Magistrate Judge issued 

a report recommending that Mr. Banks receive relief from his capital sentence but 

recommended denial of relief as to his conviction. 5R at 1090-1143.1 On August 18, 

2000, the court below issued a memorandum opinion and order adopting the 

magistrate’s report, except as specifically noted, and entered final judgment 

conditionally granting the writ. 5R at 1202-08. The district court denied Mr. Banks’s 

motion to alter or amend judgment on December 20, 2000. 5R at 1209-17, 1263-66. 

Thereafter, the director filed a timely notice of appeal on January 11, 2001. 5R at 

1284-86. On January 24, 2001, Mr. Banks filed a timely notice of cross-appeal, and 

on February 1, 2001, filed an Application for Certificate of Appealability. On

‘R” refers to the original record on appeal, preceded by a volume number and followed 
by a page reference. “Pet. RE” refers to Petitioner’s record excerpts. “Resp. RE” refers to 
Respondent s record excerpts. “Tr” refers to the transcript o f the federal habeas hearing. “SHTr” 
refers to the transcript o f the third state habeas hearing.

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February 20,2001, the district court denied issuance of a Certificate of Appealability.

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253.

STATEMENT OF THE ISSUES

I. Whether the court below erred in when it refused to review the merits of 
the due process claim concerning the suppression of a lengthy pretrial 
statement of the state’s key witness because petitioner did not formally 
amend the petition after disclosure of the statement?

II Whether the court below erred in concluding that the state’s key witness 
did not testify pursuant to a deal when it relied upon evidence from the 
state court record that was misleading and ignored other evidence 
confirming the existence of such an agreement?

III Whether the court below erred when it concluded trial counsel did not 
provide ineffective assistance of counsel when the record shows 
overwhelmingly that counsel made little preparation for trial and much 
evidence was available that would have discredited the state’s theory of 
guilt?

IV Whether the court below erred in finding that petitioner’s Swain v. 
Alabama claim was both procedurally barred and meritless?

V. Whether the court below erred in concluding that the sufficiency of the 
evidence claim concerning the special issue of future dangerousness was 
defaulted and not properly before it?

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STATEMENT OF THE CASE

1. Trial Court Proceedings

a. Pre-Trial Proceedings

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

was found in a Nash, Texas park at roughly 10:00 am. Tr. Ex. C-2 at 1. Initial 

investigation efforts established that he had been seen alive last on the previous 

Friday evening. Id. at 2. Two female acquaintances told police Whitehead was with 

an African American male later identified as Delma Banks, Jr., and an individual near 

the park reported to police that he had heard loud noises that could have been 

gunshots at roughly 4:00 a.m. on Saturday, April 12. Id. at 5.

During the next week, police surveillance of Petitioner Banks yielded no 

incriminating evidence. Id. at 6. Deputy Sheriff Huff, the lead investigator, thereafter 

contacted police informant Robert Farr and told him he would pay him $200 if Farr 

could obtain Banks’s gun. Tr. at 87-89; Tr. Ex. B-01 at f  7. Farr agreed, contrived a 

bogus story about needing a small caliber pistol to commit robberies, and repeatedly 

asked Banks to help him get one. Tr. Ex. B-01 at t  8. While Banks initially wanted 

no part of this, he finally agreed but said they would have to go to Dallas to get one. 

Id. On April 23, Farr, Banks and a third person, Marcus Jefferson, drove to Dallas 

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

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

Dallas home on Marsalis Drive. Tr. Ex. C-2 at 6. They observed Banks go to the front 

door and after a short time return to the car and drive away. Id. Within minutes, 

officers stopped the car. Tr. Ex. B-01 at 1 10. All three men were taken into custody

and a .22 caliber pistol was seized. Tr. Ex. C-2 at 7. The next morning, Farr and 

Jefferson were released.

Deputy Huff recognized immediately that the .22 was not the weapon used in 

the Whitehead shooting. Id. Even though it was predawn, he and other officers 

returned to the Marsalis Drive home. Tr. at 139. They entered and confronted Charles 

Cook. Tr. Ex. C-2 at 7. These officers spoke to Cook for forty-five minutes, informed 

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

cooperate. This encounter frightened Cook who was on probation. Tr. at 91. Later, 

he was driven to police headquarters where he provided a statement. Id. at 142. In this 

statement, Cook stated Banks had stayed with him on the weekend of April 12 and 

that Banks was driving a car that matched Whitehead’s mustang. Tr. Ex. B-02 at 1. 

Cook also claimed that during the course of the weekend Banks said he had killed a 

white boy. Id. at 2. Prior to returning to Texarkana, Cook stated that Banks left the 

car and a .25 caliber pistol with Cook to discard. Id. at 3. Cook told police that he 

abandoned the car in west Dallas and sold the gun to a neighbor. Id. Cook was then

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transported back to his home and was directed by police to go to the neighbor’s house 

and retrieve a .25 caliber pistol. Tr. Ex. B-03 at 1. Cook did so and Officer Huff 

seized the pistol and submitted it for forensic testing. Tr. Ex. C-2 at 7.

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

statements to police except to protest his innocence. The following day, he was 

formally charged with Whitehead’s murder. Tr. Ex. C-2 at 8. Within days, Banks’s 

parents retained local attorney Lynn Cooksey to represent their son, who had not 

previously been in trouble. Tr. at 210-11.

Shortly thereafter, at the exami ning trial on May 21, Officer Huff summarized 

the state’s case against Banks. Pet. RE Tab I at 3-19. He identified the two female 

witnesses-Ms. Hicks and Ms. Bungardt-who had spent time with Whitehead and 

Banks on the evening of April U. Id. at 8-14. Huff also disclosed that Whitehead and 

Banks were drinking and had searched for marijuana in the park that evening. Id. at 

8-11. Once police had identified Banks as the individual who was with Mr. 

Whitehead, he was placed under surveillance as the suspect. Id. at 14. Huff testified 

that a confidential informant, whom he refused to identify, called him on April 23 and 

told him that Banks would travel to Dallas later that evening to secure a gun. Id. at 

15. Huff and other law enforcement officers followed Banks to Dallas and watched 

him approach a house in the Oakcliff section of town. Id. at 15-16. After Banks drove

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off, Huff testified that “we had Dallas PD stop the vehicle for traffic violations” and 

a search of the car produced a .22 caliber pistol. Id. at 16. Huff then identified Charles 

Cook as the witness who told him that Banks had left a .25 caliber pistol with him one 

week earlier after he had stayed a few nights with Cook. Id. at 17. Huff also reported 

that Banks was driving a Mustang similar to Whitehead’s. Id.1 During cross 

examination, Huff revealed Hicks’ and Cook’s addresses. Id. at 22. On the next day, 

Banks was indicted for capital murder. 1SR at 2.

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

advise that there would be no need to litigate discovery issues. This letter stated 

unequivocally that “we will, without necessity of motions, provide your office with 

all the discovery to which you are entitled.” 1 SR at 13.

On August 15, 1980, Mr. Banks filed several standard pretrial motions, 

including one seeking discovery. 1SR at 17-28. Counsel did not move for a hearing 

date on any motion prior to trial. Indeed, on the first day of jury selection, counsel 

commented repeatedly that he had prepared little for the case. Mr. Cooksey told the 

judge that “I’m not in possession of any information on any of the State’s witnesses.” 

1SR at 99. In fact, even though it had been provided to him a week earlier, Cooksey

2 Huff also reported that witnesses Hicks and Bundardt had said that “the Mustang was 
having problems with the alternator not charging or keeping the battery charged, and that when 
they would turn it off, they would have to get it jumped to start i t , . . . ” Id. at 9.

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had not even seen the state’s witness list. At this hearing, he had to request another

copy. Id. at 103. After jury selection and just prior to the trial’s commencement, he

again complained that the state had not turned over prior convictions on its witnesses.

He said “I don’t have it yet and I cannot effectively cross-examine these people

without it.” 7SR at 1901. Even after the trial began, he announced that he had “never

been to the [crime scene],” nor viewed certain crime scene photographs. Id. at 2003-

2005. Moreover, he later reported that “I have not seen the ballistics report.” at 

2031.

b. Trial Proceedings

As the prosecutors prepared their case for trial, it was apparent that they would 

have serious problems at each phase of trial. They had no custodial confession to 

present, nor any eyewitness who would say that Banks fired the fatal shots that killed 

Richard Whitehead, nor any physical evidence that directly linked Banks to the 

shooting. Nor did they have a straightforward motive; indeed, their evidence would 

show that during the hours leading up to the shooting, Banks and Whitehead were 

behaving as young adults typically do ail over Texas and throughout the country. 

They purchased some beer, and rode around their home town in Whitehead’s 

unreliable car accompanied by Whitehead's date. By all accounts, there were no 

disputes. Everyone got along just fine.

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In addition, when Whitehead's body was found three days later, the fact that his 

watch had not been removed and money remained in his pocket undercut the theory 

that he was killed during a robbery. Tr. Ex. C-l at 2. Nor could prosecutors account 

for Whitehead's car-the only item it was prepared to ask the jury to find Banks stole. 

Indeed, it might strike some jurors as odd that Cook, who they would learn was then 

regularly using drugs and who made less than $200 a week, would simply abandon 

something of such value. Additionally, while Charles Cook had told Deputy Huff that 

he had sold to neighbors several items he removed from the car he reported Banks 

had that weekend, police made no effort to recover such evidence and the prosecutors 

had none for trial.

Still other problems existed. Central to its case was its theory that Banks shot 

Whitehead at roughly 4:00 a.m. on Saturday, April 12, and then drove Whitehead’s 

car to Dallas in time to arrive at Charles Cook’s house by 8:30 a.m. They possessed 

more evidence that undercut rather than supported this theory. Time of death was 

based entirely upon Mike Fisher’s sleepy account of being awakened by loud noises. 

However, the events at that time failed to raise any strong suspicions in Fisher’s mind 

that something was amiss. After hearing the noises, Fisher made no investigation, and 

did not even call police until after Mr. Whitehead’s body was found. Tr. at 204. 

Moreover, the medical examiner was not prepared to testify that a 4:00 a.m. death was

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consistent with autopsy findings. Indeed, the findings he memorialized supported a

time of death twelve to twenty-four hours la la , when the state's evidence showed Mr. 

Banks in Dallas.

In addition, Ms. Bungardt and Ms. Hicks would describe Whitehead’s car as 

untrustworthy and unable to either start without a jump or operate for long without 

the lights dimming. These statements could cause jurors to wonder how this same car

could speed to Dallas (a three hour, 180 miles trip) and then run flawlessly for Cook 

until he abandoned it.

With regard to its case for the death penalty, the prosecutors' evidence was 

equally wanting. Banks had no prior conviction for any crime. Nor did the 

prosecutors possess any psychiatric evidence that Banks was a sociopath or otherwise 

dangerous. It had but two recent incidents, one involving a brief fight between BanW 

and his common-law brother-in-law, Vetrano Jefferson, and more damaging evidence 

from paid informant Robert Fair, who would testify of boasts Banks made about 

wanting to commit armed robberies. In short, the prosecution was in no position to

show that Banks was a hardened criminal, that he posed a danger in the future or 

deserved execution.

Yet the prosecutors' most daunting challenge was to overcome serious 

credibility problems with its key witnesses. While they planned to call a dozen or so

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witnesses to the stand, all were bit players compared to Charles Cook and Robert 

Farr. Charles Cook s testimony—that he met Banks in Dallas on the morning after the 

state theorized that Mr. Whitehead was shot, that Banks was driving Whitehead's car, 

and that over the course of the following three days, Banks told Cook that he killed 

Whitehead and loaned Cook the alleged murder weapon and Whitehead's car-was the 

centerpiece of the state's case. As District Attorney Raffaelli would later candidly tell 

jurors in his opening statement, "I think the testimony of Charles Cook is critical,. 

. . ''9  SR at 2129.

Farr s testimony—that Banks initiated a subsequent trip to Dallas one week later 

so that Banks could retrieve his pistol from Cook and commit armed robberies and, 

if necessary, kill during those crimes-not only linked Banks with the murder weapon 

but was the linchpin of its case for the death penalty as, the prosecution would argue, 

it demonstrated that Banks would likely grievously harm or kill again.

The prosecutors had good reason to wonder whether jurors would believe 

Cook. He was a drug user, a twice convicted felon, and made little money from his 

city job. Jurors might find it hard to believe that he would simply abandon a car while 

selling far less valuable items from it. He was also facing another felony prosecution 

in Dallas for arson. Habitual offender papers were filed in that case one month prior 

to Banks’s trial which meant, upon conviction, that he faced a very long prison



sentence. Surely some members of the jury might seriously wonder whether Cook was 

testifying honestly, or whether he was shading the truth to please Bowie County

authorities in the hope that they would prevail upon the Dallas authorities to dismiss 

the arson charge.

Moreover, over the weekend prior to trial, Deputy Huff and representatives of 

the District Attorneys’ office interviewed Cook at length and rehearsed his testimony 

in anticipation of trial. Tr. Ex. B-4. On many contested points, Cook made statements 

that were wholly inconsistent with his April statement. Repeatedly, he was coached 

on how to respond to anticipated cross-examination, and how to deflect other 

questions. These sessions could not have encouraged prosecutors that their star 

witness would impress the jury.

Similarly, Farr possessed troubling credibility shortcomings. He too had a drug 

habit. Indeed, he had used drugs and was in a stupor on the very trip to Dallas that 

culminated in Mr. Banks s arrest. As with Cook, some jurors well might wonder 

whether he was telling the truth or was falsely aiding the state to help himself. 

Moreover, prosecutors knew he was a professional informant, had provided important 

services in this case, and had been paid for those services. If jurors heard this 

information, they could have easily become persuaded that Farr’s testimony had been 

bought and paid for and was plainly unworthy of belief.

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These shortcomings presented prosecutors with several fateful choices. Given 

the importance of Cook and Farr to the state’s case at each phase of trial, the law 

obligated them to disclose to the defense Mr. Farr’s informant status including that 

he was remunerated for his services. Additionally, given Cook’s numerous recorded 

inconsistent statements, the law also required disclosure of both the April and 

September statements as well as any arrangements with Dallas prosecutors about not 

dismissing the arson charge and habitual offender papers until after Mr. Banks’s trial. 

But such disclosure raised the clear peril that the juiy would find the state’s case 

insufficiently credible upon which to rest a capital murder conviction and death 

sentence. For reasons known only to them, they chose not to honor their pretrial vow 

of full disclosure and to withhold all information about Mr. Farr, the September, 1980 

Cook statement, and its arrangement that Mr. Cook’s arson charge would be 

dismissed only if he performed “well” while on the stand. They also decided to 

forcefully and repeatedly assure jurors that these witnesses testified truthfully.

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

to Mr. Cooksey that stated “we need[] blackfs].” Pet. RE Tab J; 3SHTr. Pet. Ex. 51. 

Cooksey wrote in reply, “State will strike all blacks.” Id. The prosecution used four 

peremptory strikes to remove all African Americans from the qualified pool. An all- 

white juiy was seated to decide this case.

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

person with Mr. Whitehead on the evening of April 11. 9SR at 2150, 2154. Both 

described Mr. Whitehead’s car as requiring a jump to start it. Id. at 2142, 2155. Both 

reported no animosity between Mr. Banks and Mr. Whitehead. See id. at 2148. Mike 

Fisher testified that he was awakened by two loud noises at roughly 4:00 am on 

Saturday morning. Id. at 2158. This account was inconsistent with the three wounds 

that Mr. Whitehead sustained and was never corroborated by the state’s pathologist.

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

pistol. He also testified that after Mr. Banks made a brief stop at Charles Cook’s 

house and returned to the car, he reported that the .22 pistol he had just received from 

Cook was not his pistol; his was with a “broad in West Dallas.” Id. at 2254-61,2267- 

69. While Farr admitted that he was a user of illegal drugs, he denied that he was a 

paid informant. Id. at 2274.

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

he saw Mr. Banks drive up in front of his Dallas home at roughly 8:30 a.m. on 

Saturday, April 12, in a green Mustang, and that during the next two days, heard 

Banks confess to killing a white man in Texarkana. Id. at 2285-97. He also testified 

that at Mr. Banks’s direction, he sold a pistol Mr. Banks left with him and abandoned 

Bank’s car. Id. at 2303-05. Cook told jurors that he had spoken to no one in

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preparation of his testimony. Id. at 2314. The prosecutors assured the juiy that no 

deals had been made with Dallas authorities for Mr. Cook’s testimony and that his 

testimony was the complete truth. 10SR at 2450. Moreover, the transcript of Cook’s 

lengthy pretrial interview was not provided to the defense prior to or during trial.

Three other family members and a neighbor were called to corroborate minor 

portions of Mr. Cook’s blockbuster testimony. A sister, Carol Cook, confirmed that 

she met Mr. Banks that weekend, when he and Mr. Cook came to her home in a green 

mustang. Id. at 2362-65. Mr. Cook’s former wife, Ida Mae Martin, confirmed that she 

was with Mr. Cook when Mr. Banks appeared on that Saturday morning, that he 

stayed at their home during the weekend, and that she and Mr. Cook loaned Mr. 

Banks money for his bus ticket back to Texarkana. Id. 2338-42. Mr. Cook’s 

grandfather, Bennie Whiteurs, testified that Mr. Banks stayed in the family’s home 

that weekend. Id. 2358. Finally, neighbor Bennie Lee Jones confirmed that he 

purchased the .25 pistol and other items from Mr. Cook shortly after Mr. Banks left 

Dallas. Id. 2356-61.

Lastly, Dr. Vincent DiMaio testified that Mr. Whitehead died from the three 

gunshot wounds. Id. at 2390. Significantly, the prosecutors did not seek testimony 

from DiMaio on the likely time of death. Firearms examiner David Jones opined that 

the bullets recovered from Mr. Whitehead and the crime scene had been fired from

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the .25 pistol retrieved from Bennie Lee Jones and submitted to the lab by Deputy 

Sheriff Huff. Id. at 2357-58.

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

examination to show that neither Charles Cook nor Robert Farr were credible 

witnesses. The jury deliberated for several hours, and just after 11:00 p.m. on 

September 30 convicted Mr. Banks of capital murder. Id. at 2485.

The state’s case for the death penalty and its belief that Mr. Banks would likely 

commit acts of violence in the future was based entirely upon the testimony of two 

witnesses-Vetrano Jefferson and Robert Farr. Jefferson testified that an unprovoked 

Mr. Banks struck him with a pistol and threatened to kill him one week prior to the 

Whitehead killing. Id. at 2493-94. Farr returned to the stand and testified that the 

reason Banks had driven to Dallas on the evening of his arrest was so that Banks 

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

that Banks said the gun would allow him to take care of any trouble that might arise 

during a robbery. Id.

The defense called several hastily assembled acquaintances of Mr. Banks and 

his parents. Each testified briefly that Banks was a respectful, churchgoing young 

man. Id. at 2514-2531.Two additional witnesses were called to discredit Mr. Farr. 

James Kelley testified that he had recently driven Farr to a number of doctors’ offices

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to fill phoney prescriptions, id. at 2540-50, and former Arkansas police officer Gary 

Owen testified that Farr had served as a paid informant in that state and was known 

as unreliable. Id. at 2557-58. Finally, Mr. Banks testified and claimed he was 

innocent of this crime. He pointedly contested Farr’s account that he, rather than Farr 

himself, wished the gun to commit robberies, and assured jurors that if the jury 

returned a life sentence, he would live peacefully in prison. Id. at 2566-69.

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

Banks would be dangerous in the future and that the special issues had been proven. 

Id. at 2578-82. Even though Farr had denied he was a paid informant, prosecutor 

Raffaelli assured jurors that “he has been open and honest with you in every way 

. . ” 10R 2579. The defense argued briefly that this evidence was insufficient. Id. at 

2590-95. The jury found the state’s evidence established the special issues and the 

judge imposed a sentence of death. Id. at 2598-2602.

2. Direct Appeal

On direct review, Mr. Banks sought review of his conviction and sentence. The 

Texas Court of Criminal Appeal affirmed his conviction and sentence. Banks v. State, 

643 S.W.2d 129 (Tex. Crim. App. 1982). The Supreme Court denied certiorari. Banks 

v. Texas, 464 U.S. 904 (1983).

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3. State Post-Conviction Proceedings

Thereafter, Mr. Banks filed three state habeas petitions (as state law then 

plainly allowed him to do). In the first proceeding, filed under warrant on December 

27,1983, Banks raised several claims. These claims included two claims raised in the 

present appeal, a jury discrimination claim based upon Swain v. Alabama, 380 U.S. 

202 (1965) and a sufficiency of the evidence claim with regard to the future 

dangerousness special issue. The trial court recommended that all the claims be 

denied on the merits; the Court of Criminal Appeals accepted this recommendation. 

See Ex parte Banks, No. 13,568-01 (Tex. Crim. App. 1984). On May 2,1984,he filed 

a second petition, again raising, inter alia, the sufficiency of the evidence claim 

concerning the future dangerousness issue. Again, the trial court recommended denial 

of all claims on their merits. With regard to the sufficiency claim, the Court of

Criminal Appeals again rejected the claim on the merits. Ex parte Banks, 769 S.W.2d 

539, 540 (Tex. Crim. App. 1989).

On January 13,1992, Mr. Banks filed his third state petition, and alleged, inter 

aha, each of the claims presented in this appeal: (1) trial counsel provided ineffective 

assistance at both phases of trial; (2) the systemic exclusion of African American 

citizens from felony jury service violated the Fourteenth Amendment; (3) the state 

had withheld material impeachment evidence on its key witnesses Cook and Farr; and

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(4) the evidence supporting the second special issue was insufficient. With regard to 

the ineffective assistance claim, Mr. Barks proffered a significant amount of evidence 

that tended to show counsel had failed to adequately prepare for and represent him 

at either phase of trial. Supporting the minority juror exclusion claim, Banks 

proffered voluminous statistical and testimonial evidence demonstrating that the 

District Attorneys office had for years routinely and systematically excluded African 

Americans from felony jury service. Because neither Cook nor Farr would speak to 

Mr. Banks’s counsel, because of the District Attorneys’ assertion that it possessed no 

impeachment evidence concerning Cook, and because of the refusal of the habeas 

court to provide funds for further investigation, Mr. Banks was unable to prove his 

due process allegations. In February, 1993, the trial court recommended that the 

petition be denied in its entirety without an evidentiary hearing. Pet. RE Tab A; 5SH 

at 167-73. Mr. Banks appealed, and the Court of Criminal Appeals ordered that the 

case return to the trial court for a limited evidentiary hearing on two issues: the Swain 

v. Alabama claim and a juror bias claim. Pet. RE Tabs B and C.

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

evidence establishing that during the six-year period leading up to his trial, more than 

90% of the otherwise qualified African American jurors were removed pursuant to

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the prosecution’s peremptory challenge.3 The record also shows that trial counsel, 

who was the former elected District Attorney, did not object because he knew of one 

case where the prosecution had allowed blacks to sit on a felony jury. Thus, he 

believed there was no legal basis for a Swain challenge.

The state habeas judge rejected Mr. Banks’s Swain claim. The Court concluded 

that the data from 1975-1978 was irrelevant because the District Attorney prosecuting 

the case was not in office. Pet. RE Tab D at 5. Nevertheless, the court concluded that 

the evidence showed a prima facie case of discrimination but that the prosecutor’s 

articulation of race neutral reasons for the four peremptory strikes levied against the

four African American jurors sufficiently rebutted the prima facie showing. Id. at 5,

9.

The Court of Criminal Appeals denied relief on the basis of the trial court’s 

findings and conclusions. Pet. RE Tab E.

4. Federal Habeas Corpus Proceedings

On March 7, 1996, Mr. Banks filed the instant petition for habeas corpus 

relief. Only exhausted claims were presented. Thereafter, he moved the court for 

discovery and for an evidentiary hearing on three issues raised in this appeal. First, 

Mr. Banks was finally able to track down and speak to Robert Farr and Charles Cook.

Mr. Banks sets forth this evidence in greater detail in the Argument section o f this brief.

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Farr revealed for the first time that he had been a paid informant in this case and that 

his testimony concerning Banks, such as his desire to commit robberies, was false. 

2R at 598> Ex- B- Cook revealed three matters of significance. He stated that 

significant portions of his testimony were false and were given under pressure. Id. at 

Ex. A. He asserted that he was assured by Deputy Huff and others that his Dallas 

arson charge would be dismissed if he testified favorably to the state’s case. Id. 

Finally, directly contradicting his trial testimony, Cook revealed his testimony had 

been rehearsed on several occasions prior to trial. Id. On the basis of affidavits from 

Cook and Farr and from two other state witnesses who corroborated Cook’s 

assertions, Mr. Banks move the court for discovery and for an evidentiary hearing.

Second, he asked the court to grant a hearing on his ineffective assistance 

claim. While much evidence had been proffered before the state court, no hearing was 

held and no findings were made.4 Pet. RE Tab A at 7. Finally, he asked for leave to 

supplement the record with regard to his Swain claim. After consideration of these 

requests and the Director s arguments urging denial of any discovery or a hearing, the 

Magistrate Judge granted Mr. Banks limited discovery and a limited hearing.

Mr. Banks relied on a number o f cases from this Court which held that under such 
circumstances, a hearing is necessary. See e.g., Goodwin v. Johnson, 132 F.3d 162 184-85 C5th 
Cir. 1998). ’ K

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On June 7 and 8,1999, the Magistrate Judge conducted an evidentiary hearing. 

The Court restricted evidence to the due process and counsel claims, and allowing

two supplemental affidavits relevant to the Swain v. Alabama claim. We briefly 

summarize that evidence.

i. Due Process Claim Evidence

Evidence Relevant to Mr. Farr’s Informant Status anH 
Credibility

Four witnesses gave testimony concerning this allegation: Mr. Farr, Mr. Elliott, 

Mr. Huff, and Mr. Marcus Jefferson.

Farr testified by declaration that he worked as an informant for various police 

agencies before, during and after Mr. Banks was arrested and prosecuted. These 

agencies included Texarkana law enforcement agencies. See Tr. Ex. B-1 at 1.5 He was 

sometimes paid for these services. Id. Law enforcement in Texarkana and elsewhere 

knew of his use of illegal drugs and practice of falsifying prescriptions to procure 

drugs. However, they never arrested him for these activities. Id. Farr testified he 

became involved in this case after Deputy Huff learned that Farr knew Banks and

At the time o f the hearing, Mr. Farr resided in California. Prior to the hearing Mr 
Banks moved that he be permitted to depose Mr. Farr or submit his declaration in lieu o f live 
testimony for two reasons: (1) Farr did not want to return to Texarkana because he feared for his

not , S i PM0 F T  P° l 7 inf0mant ^ (2) he was in P°or health- The Director did not insist that Mr. Farr be produced for cross-examination nor did he seek to depose him He
hrrnted his objection to admission o f Mr. Farr’s declaration solely upon Keeney v. Tamayo-
Reyes, 504 U.S. 1 (1992) grounds. Tr. at 13. ^

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sought his assistance “to find Delma’s gun.” Id. at 2. Farr testified that he believed

that if he did not agree to help, Huff would arrest him on drug charges and see to his

prosecution. Farr recounted his subsequent actions as follows:

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

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

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

10. Delma, Marcus Jefferson and I drove to Dallas in my car. I had drugs 
with me. When we got to Dallas, we stopped at a man's house and 
Delma went to the house and came back with a gun. After we drove 
away from the house, our car was pulled over by the police on the 
interstate. I was taken to the Dallas police station with Marcus. I don't 
know where Delma was taken because he was in a different police car. 
I was allowed to leave. I wasn't charged with anything.

23



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

Id. Farr further testified that he left the Texarkana area about a year after this trial

after bemg advised to do so by his law enforcement handlers who feared for his life. 

Id.

Trial prosecutor James Elliott confirmed that the prosecution utilized Farr as 

an informant in Mr. Banks’s case. Tr. at 54. So did Mr. Huff. Id. at 86. Huff also 

testified that Farr was paid roughly $200 for his services. Id. at 88-89.

Marcus Jefferson testified that Farr initiated conversations with Mr. Banks 

about securing a gun so that Farr could arm himself to commit robberies. Tr. 162-63. 

He accompanied Farr and Banks to Dallas on the evening that Banks was arrested. Id. 

He stated that at the time of the arrest, police found drugs and drug works in the car

but that neither he nor Farr, who owned the drugs and works, were charged with any 

crime. Id. at 164-65.

24



2. Evidence Relevant to The Existence of Non-Discloseri 
Impeachment Material Concerning Charles Conk

Pursuant to discovery ordered by the Magistrate Judge, the Bowie County 

District Attorney’s office released portions of its trial file to Mr. Banks in advance of 

the hearing. Included in this disclosure was an undated transcript of a pretrial 

interview held between Charles Cook and Bowie County law enforcement officials. 

The interview was conducted shortly before Banks’s trial. The transcript was offered 

and received into evidence. Tr. Ex. B-04.

Mr. Elliott testified that this document was generated during interviews 

conducted shortly before trial. He identified handwritten notes on several pages and 

confirmed the writing was that of his co-counsel, Mr. Raffaelli, and stated that 

Raffaelli possessed this transcript at trial. Tr. at 45-47.6 Elliott conceded that the 

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

trial record indicates that only Mr. Cook’s April, 24, 1980 statement to police was 

disclosed to Mr. Cooksey at the conclusion of Cook’s direct testimony. 9SR at 2312. 

Indeed, Mr. Elliott testified that he decided to disclose the lengthy transcript to Mr.

Banks in these proceedings only to comply with the Magistrate Judge’s discovery 

order. Tr. at 69.

6 Mr. Raffaelli was the elected District Attorney at the time o f trial. He died prior to the 
hearing below.

25



In his testimony below, Charles Cook confirmed that he spoke with law 

enforcement extensively about his testimony prior to trial. Tr. at 135. He also said that

much of his trial testimony was rehearsed and that certain key portions were not 

truthful. Tr. at 137-38, 144-46.

3. Evidence Relevant to Deal for Mr. Cook’s Testimony 

Mr. Elliott testified that he did not arrange a deal between his office and the 

Dallas County District Attorney’s office concerning the arson charge that was 

pending against Mr. Cook at the time of Mr. Banks’s trial. Tr. at 52. He testified that 

Mr. Cook was Mr. Raffaelli’s witness. Thus, it was possible that Mr. Raffaelli made 

a deal without his knowledge. Id. He testified that both Mr. Leathers, an investigator, 

and Mr. Huff had contact with Dallas authorities that he was not privy to, but that 

Huff had no authority to strike any such deal. Id. at 54. He also testified that on the 

day after the trial concluded, he drove with Mr. Huff and Mr. Cook to Dallas, and 

spoke to the Dallas assistant district attorney who was assigned to Mr. Cook’s arson 

case. Id. at 51-53. He could not recall the prosecutor’s name, but testified that he told 

this assistant district attorney that Mr. Cook had given helpful testimony for the 

prosecution in a capital murder case. Id.1

7 This testimony was not consistent with evidence Mr. Elliott offered in state habeas 
proceedings. In that proceeding, Mr. Elliott made no mention o f this trip or meeting, see Exhibit 
Sec. #1-B to Original Answer, filed Oct. 5, 1992 in State o f  Texas v. Delma Banks. Jr.. No. 80-F-

26



Mr. Huff testified that he met with Mr. Cook in Dallas on three or four 

occasions prior to transporting him to Texarkana for trial, that he became familiar 

with the pending arson charge during the summer of 1980, and spoke to Cook about 

the charges. Tr. at 80-82, 97-98. He denied advising Mr. Cook that these charges 

would be dismissed if he testified favorably for the prosecution against Mr. Banks. 

Id. at 101.

Mr. Cook’s testimony sharply contradicted Mr. Huffs. He testified that he was 

frightened by the police’s sudden appearance and entry into his home in the predawn 

hours on April 24. Tr. at 140. He said that Huff made it very clear to him that he 

could be charged with being an accessory to murder if he did not fully cooperate with 

their investigation of Mr. Banks. Id. at 141. He said that Huff provided him with 

information about the crime and then directed him to give a statement concerning his 

contact with Mr. Banks. Id. at 142. Not wanting to be implicated in the Whitehead 

murder, he gave a statement that was consistent with what be believed Huff wanted 

even though significant portions of this affidavit were not truthful. Id. at 144. He gave

86-102. Moreover, in that proceeding, Mr. Elliott, as lead counsel for the Director, filed an 
affidavit from a Dallas assistant district attorney, Kevin Bryne, which asserted Bryne was aware 
of no deal for Mr. Cook’s testimony in the Banks’s case. This affidavit was clearly misleading. 
Mr. Byrne did not handle the 1980 arson prosecution, but a later 1981 case involving Mr. Cook. 
Mr. Byrne’s testimony provides no foundation to show he would have known had a deal been 
made in the 1980 arson case.

27



this inaccurate account because Huff made it clear that he could be implicated in this 

cnme if he refused to aid the police in their efforts to prosecute Mr. Banks. Id. at 142. 

He said that he became fearful of Deputy Sheriff Huff on that evening, remained so 

throughout the pretrial period, and even continues to fear Huff today. Id. at 140-44.

Cook further testified that he was subsequently held on an arson charge 

involving an incident at his sister’s home from early May through Mr. Banks’s trial, 

despite the fact his sister formally sought the charge’s dismissal soon after the 

charges were filed. Id. at 145-46. In August, just a month prior to the trial date in Mr. 

Banks’s case, habitual offender papers were filed in the arson case that lengthened 

significantly the maximum sentence he could receive upon conviction. Prior to trial, 

he and Huff spoke about his case, and Huff told Cook that he would spend the rest 

of his life m prison if he did not fully cooperate with the Banks’s prosecutors. Id. at 

144. Cook understood Huffs remarks to mean that if he testified consistently with the 

Apnl affidavit, which Cook knew would require him to testify falsely, the arson 

charge would be dismissed and the life sentence he feared would go away. Id. 147. 

He testified further that several key portions of his trial testimony were not truthful. 

Id. 147. Cook testified that immediately after his trial testimony, Huff drove him back

to Dallas, where, as Huff had assured him, the arson charge was promptly dismissed. 

Id. 151.

28



Finally, Cook testified that Huff provided him with other benefits. On several 

occasions, Huff gave him money, and while in Texarkana waiting to testify, Huff 

daily transported him to see his wife at her hotel so that he could have conjugal visits. 

Cook s former wife Ida Marie Martin testified and confirmed that she had conjugal 

visits with Cook every day during the time they were in Texarkana for Mr. Banks’s 

trial. Id. 113.

Carol Cook, Mr. Cook’s sister, testified that she was reluctant to become a state 

witness because, at first, Huff failed to explain what relevant testimony she 

possessed. She said that Huff was rude with her and her family, and told her on one 

occasion that if she refused to testify, he “would lock up my brother for the rest of his 

life . . .  for setting my house on fire,. . . ” Tr. at 123. She also testified that just prior 

to testifying, Huff went over her testimony with her and directed her to change her 

testimony concerning the color of the car she saw Mr. Banks driving on the weekend 

he spent in Dallas with her brother. Id. 125-26. She was sure the car she saw was red; 

Huff insisted that she testify that it was green. While she initially told the jury the car

was red, she immediately “corrected” herself and said the car was green. Id. at 126- 

27.

29



ii. Ineffective Assistant o f Counsel Claim 

Several witnesses testified in support of this claim.

1- Evidence Relevant to Time of Death 

Two wimesses, state s trial witness Fisher and Alabama medical examiner Dr. 

Riddick, gave testimony to establish that one essential component of the state’s case 

against Mr. Banks -  Mr. Whitehead was shot at roughly 4:00 a.m. on Saturday, April 

12 (and thus Mr. Banks had sufficient time to travel to Dallas to meet Mr. Cook by 

8:15 a.m.)-was not true and would have been easily assailable had counsel conducted 

a minimally adequate investigation of the underlying facts.

At trial, the state s theory was that Mr. Banks was alone with Mr. Whitehead 

during the early morning hours of April 12 in the Nash park where Mr. Whitehead’s 

body was found on April 14. At roughly 4:00 a.m., Mr. Banks shot Mr. Whitehead 

three times, took his car, then drove 180 miles to Dallas and arrived in front of Mr. 

Cook s house by 8:15 or 8:30 a.m. The state’s evidence supporting this theory was 

circumstantial and came solely from the testimony of Mike Fisher. At trial, Mr. Fisher 

testified that he was asleep in a house that bordered upon the park in the early 

morning hours of April 12 and was awakened by two loud noises. He testified that his 

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

noises were definitely gunshots, but said “I heard two sounds that sounded like

30



gunshots.” 9SR at 2159. On cross-examination, defense counsel asked only whether 

he heard two loud noises. Id. at 2160. In sum, the prosecution asked the jury to 

conclude from Mr. Fisher’s testimony that he indeed heard two of the three shots that 

fatally wounded Mr. Whitehead at 4:00 am. 9SR at 2444.

At the hearing below, Mr. Fisher testified that he recalled the events of this 

case and of being awakened by loud noises coming from the park behind the house. 

Tr. at 203. He supplemented his trial testimony with significant qualifying 

information. He said he knows nothing about guns, and thus could not be certain that 

the noises he heard were gunshots. Id. He openly conceded that the noises could have 

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

Moreover, he said the noises could have occurred as early as 3:00 a.m. and as late as 

5:00 a.m. Id. at 204.

Dr. Riddick’s8 testimony focused in part upon the time of death issue. Tr. at 

183-88. He identified several factors identified by Dr. DiMaio that strongly suggested 

that Whitehead was shot not at 4:00 a.m. on April 12, but late in the evening on April 

12 or early in the morning on April 13 .Id. First, both Deputy Huff and Dr. DiMaio

8 Dr. Riddick is the medical examiner for the State of Alabama. He is a 
certified forensic pathologist, has performed roughly 5,500 autopsies and 
published numerous articles, Tr. at 177-78, and overwhelmingly testifies as an 
expert witness for the prosecution. Id. The Magistrate Judge found Dr. Riddick 
qualified as an expert in forensic pathology over no objection from the Director.

31



observed full rigor mortis in Whitehead’s body. Rigor mortis, a stiffening of the 

body’s muscles after death, usually appears veiy soon after death, renders the body 

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

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

roughly 24 hours later than did Huff. Second, 72 hours after death, Dr. DiMaio should 

have observed a drying of the lips and a graying discoloration of the lower abdomen. 

Id. at 187. He looked for these symptoms but reported finding neither. Moreover, 

DiMaio reported no clouding of the cornea; he reported the corneas were clear. Id. 

This is highly unusual for someone who had died more than 72 hour prior to the 

autopsy. Based upon all of these reported factors, Dr. Riddick concluded that while 

he could not rule out entirely that Mr. Whitehead was killed at 4:00 a.m. on April 12, 

the great weight of all the available evidence pointed toward a late Saturday evening,

or early Sunday morning time of death. Id. at 197. The Director presented no evidence 

in rebuttal to Dr. Riddick or Mr. Fisher.

2- Evidence Regarding Counsel’s Readiness for Trial 

Mr. Banks presented several other witnesses who offered testimony relevant

to defense counsel’s pretrial investigation and preparation for this case for both 

phases of trial.

32



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

hired Mr. Cooksey shortly after learning of their son’s arrest. Cooksey sought a fee 

of $ 10,000, but they were able to pay him only $ 1,000 for those services. Tr. at 211. 

They also gave him some funds for the retention of investigator Dennis Waters. Prior 

to trial, they had only brief meetings with Cooksey and Waters that lasted “no longer 

than 10 to 15 minutes.” Id. at 212. At none of these meetings did Cooksey or Waters 

take a social history of Delma, Jr.’s life. Id. at 224. At one point during the trial, 

Cooksey asked Mr. Banks, Sr., to meet with him, the judge and his son to discuss a 

plea offer that would have resulted in a life sentence if Mr. Banks, Jr., had agreed to 

plead guilty to Mr. Whitehead s murder. He agreed to do so but resisted urging his 

son to accept the deal when his son protested his innocence. Id. at 215. Mrs. Banks 

reported that during the guilt phase of trial, Cooksey approached her and asked her 

to testify that Delma Jr., was home with her on Friday evening, April 11. Id. at 225. 

She refused to do so, and when she did, Cooksey “took me by the arms and shook me 

and he said that what kind of mother is you that will not tell a little white lie to save 

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

Mrs. Banks recalled that she was present in the courtroom when the jury 

announced its verdict of guilty. The verdict came in late at night. When it did, she 

blacked out. Id. at 226. Prior to being taken to the hospital, Cooksey asked her to get

33



as many ministers as she could in the courtroom the next morning. Id. at 225. After

being taken to New Boston Hospital, she insisted that she be released. She was

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

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

hearing.

Both Banks s recall being called as witnesses during the sentencing hearing. 

However, each was surprised as neither had ever spoken to Cooksey about what 

information he wanted them to convey to the jury. Id. at 216-17; 227. Both provided 

detailed social histoiy information about themselves and Mr. Banks, Jr., later

summarized by Dr. Cunningham, that they did not have an opportunity to tell the 

sentencing jury.

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

contacted by the defense and told he would likely be a witness. Even on the morning 

of the sentencing hearing, he had no idea that Cooksey planned to call him as a 

witness. During the morning hours, he had several drinks. When deputies came to 

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

time to Cooksey for a minute or two, but did not learn why he was being called to 

testify. He also recalled that Mr. Raffaelli approached him and warned him that he 

would be charged with peijury if “he caught me telling lies.” Id. at 234. This

34



conversation “really” scared Kelly. Kelly’s trial testimony focused upon Robert Farr 

and his use of bogus prescriptions to secure drugs.

Vetrano Jefferson, another state’s trial witness, also testified below. At trial, 

he had testified that he had fought with Mr. Banks, Jr., shortly before Mr. Banks was 

charged with the murder, and that Mr. Banks was the aggressor in that incident. 1OSR 

at 2493-94. Below, Mr. Jefferson admitted that version was false and testified that he, 

not Mr. Banks, was the aggressor. “I was drunk that day. . .  and I was threatening my 

sister and he defended her. . . .’’ Tr. at 166. When asked who started this fight, Mr. 

Jefferson stated “I did.” Id. He also testified that he never spoke to Mr. Cooksey or 

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

to speak with him about this incident. Id. at 168.

Mr. Banks also called Dr. Mark Cunningham, a board certified forensic 

psychologist, whom the Court found qualified, without objection, as an expert in 

forensic psychology. Dr. Cunningham testified that he conducted a thorough 

psychological evaluation of Mr. Banks. He spent roughly nine hours with Mr. Banks 

performing testing and taking social history information. Tr. at 239. He also 

interviewed at length Mr. Banks’s parents, three adult sisters, and reviewed the entire 

trial transcript, school, medical, and prison records concerning Mr. Banks. Id. This 

evaluation revealed that Mr. Banks grew up in a violent home environment due

35



almost entirely to his father’s chronic alcohol problem and repeated acts of abusive 

behavior directed at Mr. Banks’s mother, siblings, and himself. Tr. at 265-70. He 

found that Mr. Banks, Jr., had chronic health problems and learning disabilities that 

prevented him from enjoying success in school. Id. at 272. After performing a 

detailed risk assessment of Mr. Banks at the point of his life when he was placed on 

trial, Dr. Cunningham concluded that there was little likelihood that he would commit 

additional acts of violence in the prison setting. Id. at 279-81.

The Director did not present expert or lay rebuttal evidence concerning Dr. 

Cunningham’s testimony.

3- Expert Testimony Regarding the Defense Function

Mr. Banks’s final witness was Gerald Goldstein, Esq., who was qualified as an 

expert in the defense function in capital trials. Tr. at 313. Mr. Goldstein reviewed the 

trial record and portions of the habeas corpus record, and directed his testimony to the 

four areas of alleged trial counsel’s ineffectiveness the Magistrate Judge had directed 

she would receive evidence: (1) the adequacy of the pretrial investigation; (2) 

counsel’s cross-examination of the state’s witnesses; (3) counsel’s presenting of the

penalty phase witnesses, and (4) counsel’s failure to utilize a mental health expert at 

the sentencing trial. Id. at 309.

36



Addressing the adequacy of the pretrial investigation, Mr. Goldstein testified 

that the quality of the investigation is directly related to the quality of trial 

performance. You cannot effectively cross-examine, you cannot effectively put on 

a direct examination, you cannot effectively argue your case or even have any idea 

what your theory of defense would be without a thorough [understanding of the 

facts].” Tr. at 315. In this record, Goldstein found much to be concerned about. “I was 

extremely concerned...  that the discovery motion was heard on the first day of trial,” 

that trial counsel appears on record as never having seen the autopsy report, of never 

having seen a ballistics report, . . .  “of not realizing there was a witness list when in 

fact the record reflects it had been . . .  received by his office several days before.” Id. 

at 316. In this case, Goldstein found these lapses particularly troublesome because 

trial counsel knew his client’s account differed significantly from the state’s theory 

of his guilt, yet made little effort to determine whether the state’s theory held up. For 

example, he found counsel’s failure to explore the time of death question hard to 

explain. Because the state’s evidence would place Mr. Banks in Dallas by 8:30 a.m. 

on Saturday morning, it was important to review the autopsy report and speak to the 

pathologist about time of death. Goldstein testified that he knew from his own 

practice that the state’s pathologist, Dr. DiMaio, is “probably the most approachable 

pathologist I have ever come across. He would always talk [to defense counsel]. . . ”

37



Id. at 317. However, trial counsel did not see the report until mid-trial. Neither the 

report nor DiMaio’s testimony established a likely time of death. Because the report 

possessed sufficient indicia that Whitehead probably died significantly later than the 

state’s theorized, Goldstein concluded it was “critically important” to have pursued 

this pnor to trial “in terms of developing a defense.” Id. at 318. Additionally, 

Goldstein opined that once Cooksey learned of Mike Fisher, he should have

interviewed him pnor to his testimony because of his important role in the state’s time 

of death theory.

Goldstein testified that counsel also should have pursued, in advance of trial, 

evidence to establish the improbability of the Whitehead car, as described by Huff at 

the examining trial, operating effectively enough to get Mr. Banks to Dallas, 180 

miles away, within four and a half hours of the shooting absent significant repairs. 

Goldstein concluded that counsel could have easily consulted with a good mechanic

and been prepared to present such evidence to impeach an essential element in the 

state’s case. Id. at 320-21.

With regard to the adequacy of the cross-examination of the state’s witnesses, 

Goldstein testified that trial counsel’s failure to perform adequate investigation prior 

to trial precluded the development of a defense through the government witnesses.

38



[A]t some point you’ve got to develop your defense. And a lot of [the state’s] 

witnesses were not that hostile.” Id. at 323.

Addressing preparation for the penalty phase and the presentation of mitigating

evidence, Goldstein testified that Cooksey was harmed by the prosecution’s failure

to disclose Robert Farr’s informant status but did not act reasonably in failing to

speak to Vetrano Jefferson prior to trial. “Jefferson, who is someone who says he

would have talked to anyone [prior to trial], but no one came and ask him,” would

have clarified that he, not Banks, provoked the fight, and that Banks acted in defense

of his wife. Id. at 324. “These are things that would have mattered . . .  to a jury.” Id.

at 324-25. Goldstein concluded that the record showed clearly that counsel made no

pretrial effort whatsoever to identify mitigation witnesses, or, once some had

appeared, prepare them for their important testimony. He testified:

When I read the statement with respect to the other defense witnesses, 
who are these people, on the record, everything else, . . . paled by 
comparison. I don’t know how you could get to the penalty phase of a 
capital trial when someone’s life is on at stake and look at them on the 
record and say who are these people. And the examination of those 
witnesses on the record, I think speak more eloquently than I ever could 
talk about the lack of preparation and obvious knowledge of who these 
people were here for and what they were going to say.

Id. at 325.

39



Goldstein lastly addressed counsel’s failure to utilize a mental health expert at 

the penalty phase. Given the threat that existed at the time this case was tried that the 

state would call Dr. Grigson who was highly effective in convincing jurors to 

conclude the defendant would be dangerous in the future, it was incumbent upon trial 

counsel to be prepared to offer the jury with a reference point for when an offender’s 

background, character, and emotional make-up crossed the line between just maybe 

being a danger in the future and likely would be one. Goldstein found no evidence in 

the record to suggest that Cooksey made any effort to secure such assistance, and 

opined that Dr. Cunningham’s testimony was the very type of testimony that jurors 

would have found to be both relevant and helpful. Id. at 327.

In conclusion, Goldstein testified that the record as a whole showed clearly an

abject failure on counsel’s part to “properly investigate or defend his client.” Id. at 

330.

4. The Director’s Rebuttal Casp

The Director called one witness, Dennis Waters. Tr. at 334.9 Mr. Waters 

testified that he was hired by Mr. Cooksey to perform investigation services. Id. at 

335. He testified that he interviewed a number of witnesses. However, he could not

rn  . 9 Pn°r t0 * e hea™ g’ Director had indicated that he would likely call defense counsel
Cooksey as his witness. The Director rested his rebuttal without calling Mr Cooksey.

40



recall their names. He testified that he visited and photographed the crime scene. Id. 

at 335-36. He said that Mr. Banks told him prior to trial that he had hitchhiked to 

Dallas during the early morning hours of April 12 but was unable to provide Mr. 

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

this account. Id. at 337. On cross-examination, Waters conceded that Cooksey never 

requested that he take a social history from Mr. Banks, nor obtain school records. Id.

at 340. He also agreed that his efforts focused mostly on the guilt rather than 

punishment phase of the trial.

5. Magistrate Judge’s Recommendations & District Court Judgment

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

that the writ be granted in part and denied in part. 5R at 1090-1143. The Magistrate 

Judge concluded that Mr. Banks’s sentence was constitutionally tainted by two 

independent and prejudicial violations of the Constitution. She concluded that the 

prosecution’s failure to disclose Robert Farr’s paid informant status violated the rule 

of Brady v. Maryland, 373 U.S. 63 (1963), given that he was the chief penalty phase 

witness. She also concluded that the record showed that trial counsel failed to provide 

constitutionally effective assistance during the penalty phase of this trial. With regard 

to all other claims, the Magistrate Judge recommended denial of the writ.

41



Both Mr. Banks and the Director filed timely objections to these 

Recommendations. On August 18,2000, the District Court, with some modification, 

accepted the recommendations and ordered that the writ issue as to sentence. 5R at 

1202-08. The Court thereafter rejected Mr. Banks’s motion to modify or amend the

judgment. 5R at 1209-17, and further denied issuance of a Certificate of 

Appealability.

42



SUMMARY OF ARGUMENT

The district court properly determined that the suppression of state witness 

Robert Farr s status as a paid informant in this case was prejudicial and denied Mr. 

Banks a fundamentally fair sentencing determination. Because this fact was not 

disclosed to the defense until the underlying proceeding, the court correctly held an 

evidentiary hearing on this matter.

The district court improperly refused to review the merits of the suppression 

of a lengthy, pre-trial statement given by key state witness Charles Cook to 

authorities that contains much impeachment material. Mr. Banks pleaded in his 

petition that the trial prosecutors had withheld such material. This document was not 

released until three months prior to the evidentiaiy hearing. The Director had ample 

notice that the suppression of the document was a matter to be litigated at the 

evidentiary hearing. Because this document contains extensive impeachment material, 

its suppression deprived Mr. Banks of a fundamentally fair guilt determination.

The district court erred in determining that state witness Cook did not have deal 

for his testimony that included dismissal of a pending habitual offender charge. The 

record contains extensive evidence that demonstrates Cook anticipated dismissal of 

the charge if his testimony sufficiently incriminated Mr. Banks.

43



The district court properly concluded that the sentencing determination was

rendered fundamentally unfair by trial counsel’s ineffective assistance. The record

shows that counsel made no preparation for this phase of trial, placed witnesses on

the stand without having first interviewed them, and failed to discover that one state’s

witness’s testimony was misleadingly prejudicial to Mr. Banks. The district court

correctly held an evidentiary hearing on this issue as the state courts had made no 

findings of fact.

The district court erred in failing to find that trial counsel rendered ineffective

assistance at the guilt phase of trial as well. Counsel failed to make any assessment

of the state’s theory of guilt. That theory was fundamentally flawed and the record

now contains solid unrebutted evidence that demonstrates the victim was killed in

Bowie County when Mr. Banks was in Dallas. This evidence was available to trial 

counsel.

The district court erred in concluding that the Swain v. Alabama claim is both 

mentless and defaulted. The facts show that over a six year period, more than 90% 

of qualified black jurors were peremptorily removed by prosecutors from felony trial 

service. During that same period only 18% of white jurors were so removed. Several 

area attorney confirmed that it was the policy of the Bowie County District Attorneys’ 

office during those years to strike blacks from felony jury service. The claim is not

44



defaulted because Texas does not have a uniform rule that requires Swain claims to 

be made at trial. Counsel was ineffective in failing to adequately investigate this 

claim, and as the former District Attorney during four of the six year period, had a 

conflict of interest in pursuing the claim.

The district court erred in finding that the sufficiency of the evidence claim 

concerning the special issue of future dangerousness was defaulted. This claim was 

adjudicated on its merit during both the first and second state habeas proceedings. 

The third state habeas court s determination that the claim was not cognizable in 

habeas proceedings simply meant that that court would not adjudicate the claim for 

the third time. On the merits, Mr. Banks is a youthful first offender and the crime was 

not aggravated. The evidence does not establish future dangerousness beyond a 

reasonable doubt.

45



ARGUMENT

I. The Suppression of Material Impeachment Evidence 
Concerning the State’s Two Key Witnesses Deprived Mr.
Banks of a Fundamentally Fair Guilt and Punishment 
Determination

The record in this case shows that in three fundamental ways, the trial 

prosecutors withheld significant impeachment evidence on key witnesses Farr and 

Cook. The court below properly granted Mr. Banks sentencing relief after concluding 

trial prosecutors did not disclose Robert Farr’s status as a paid informant and that this 

omission was material to the sentencing decision. The court, however, erred in failing 

to grant Mr. Banks relief from conviction when it concluded that (1) it would not 

adjudicate the suppression of Cook’s pretrial interview statement because it was not 

alleged m the petition, and (2) the record evidence failed to establish that the

prosecutors agreed to seek dismissal of Cook’s pending arson charge in exchange for 

favorable testimony.

1. The Governing Legal Standards

These claims are governed by well established and familiar precedent. “The 

suppression by the prosecution of evidence favorable to an accused upon request 

violates due process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373

46



U.S. 83, 87-88 (1963). In Giglio v. United States, 405 U.S. 150 (1972) the Court 

explicitly held that nondisclosure of impeachment evidence, such as a promise of 

non-prosecution, may establish a due process violation: “[WJhen the ‘reliability of a 

given witness may well be determinative of guilt or innocence,’ nondisclosure of 

evidence affecting credibility falls within this general rule.” 405 U.S. 150,154 (1972) 

(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). Moreover, the law is clearly 

established that payments to an informant who testifies at trial constitute Brady 

material and must be disclosed to the defense. See, e.g., United States v. Cervantes- 

Pacheco, 826 F.2d 310, 315-16 (5th Cir. 1987) (en banc) (reaffirming that the 

“government must . . .  make a complete and timely disclosure to the accused of the 

fee arrangement it has made with the informant in accordance with Brady v. 

Maryland, and adding that the trial court should give a careful instruction to the 

jury pointing out the suspect credibility of a fact witness who has been compensated 

for his testimony.”).

In order for a petitioner to prevail on a claim for relief under Brady, the 

“evidence at issue must be favorable to the accused, either because it is exculpatory, 

or because it is impeaching; that evidence must have been suppressed by the State, 

either willfully or inadvertently; and prejudice must have ensued.” Strickler v. 

Greene, 119 S.Ct. 1936, 1948 (1999). The petitioner does not need to establish by a

47



preponderance that the disclosed evidence would have led to acquittal. Instead, he 

needs to only demonstrate that the “favorable evidence could reasonably be taken to 

put the whole case in such a different light as to undermine confidence in the verdict.” 

Kyles V. Whitley, 514 U.S. 419, 435 (1995). Also, materiality must be assessed 

cumulatively, “not item by item.” Id. at 436. Finally, the prosecutor “has a duty to 

learn of any favorable evidence known to the others acting on the government’s 

behalf in the case, including the police.” Id. at 437.

2. The District Court Correctly Determined That Farr’s 
Undisclosed Paid-Informant Status Rendered The Sentencing 
Judgment Fundamentally Unfair

The record shows that Mr. Farr was a significant witness for the state. He was 

the only state witness to testify at each phase of Mr. Banks’s trial. During the guilt 

phase, the prosecutors portrayed him as an innocent acquaintance who accompanied 

Mr. Banks to Dallas to secure the return of Banks’s gun from Charles Cook. 9SR at 

2266-2275. Now it is clear that when Farr expressly denied ever taking money from 

police, id. at 2274, he lied to cover up his informant status. Farr was one of only two 

witnesses called by the state during the sentencing phase. There he provided the 

motive for the Dallas trip: that he, together with Banks and Marcus Jefferson, traveled 

to retrieve a pistol that Mr. Banks could use while committing armed robberies. 1OSR 

at 2499-2503. The clear purpose of this testimony was to demonstrate that Banks

48



posed a continuing danger to society and to persuade the jury to answer each of the 

so-called special questions in the affirmative. The record now shows this testimony 

was misleading and inaccurate.

At no time during the testimony did either prosecutor seek to correct Mr. Farr’s 

misleading testimony or announce his paid informant status. Indeed, both prosecutors 

assured jurors that Farr and his testimony could be trusted. Mr. Elliott characterized 

Farr’s penalty-phase testimony as “of the utmost significance,” because it helped to 

establish that Banks posed a “danger to friends and strangers, alike.” Id. at 2593. Mr. 

Raffaelli assured the jury that Farr had been “open and honest with you in every 

way,” Id. at 2579.

The court below was correct to find prejudicial error. The non-disclosure of 

Farr s paid informant status, coupled with the prosecutor’s assurance, at first implicit 

and later explicit, that he told the truth, constitutes a “deception. . .  inconsistent with 

rudimentary demands of justice.” Mooney v. Holohan, 294 U.S. 103,112 (1935). The 

covering up of Farr’s informant status permitted the prosecution to falsely present 

Farr as simply a responsible citizen, with no ax to grind, who came forward to 

provide important, truthful evidence linking Mr. Banks to the murder weapon. As the 

state had little other evidence to demonstrate that Mr. Banks would be a danger in the 

future, the result at the penalty phase likely would have been different had the jury

49



known that Farr had evety reason to testify as he did to protect his business 

relationship with law enforcement and to avoid prosecution.

This Court s decision in East v. Johnson, 123 F.3d 235 (5th Cir. 1997), 

confirms the District Court correctly decided this issue. In East, the state failed to 

disclose the rap sheet of a penalty-phase witness who testified that the defendant had 

raped and robbed her three months before the crime in question. Although the witness 

was only one of nineteen witnesses called by the state in the sentencing phase, the 

court noted that the state had placed great reliance on her testimony and concluded 

that the suppression of impeachment evidence required the reversal of the defendant’s 

death sentence. Id. at 238 n.5, 239-40. Farr’s testimony was far more crucial to the 

state than the testimony at issue in East. As stated, Farr was one of only two penalty- 

phase witnesses called by the state, and the testimony of the other witness -  Vetrano 

Jefferson-occupies a mere four pages of the trial transcript. 10SR at 2491-95. The 

suppression of Farr’s motive for testifying against Banks plainly undermines 

confidence in the jury’s sentencing recommendation.

While suppression of Farr’s paid informant status compelled the relief granted 

below, the prosecution’s subornation of Farr’s peijured testimony, followed by 

improper vouching for Farr’s credibility during closing argument, confirms its 

materiality. In Kirkpatick v. Whitley, the Court distinguished the materiality standard

50



for ordinary Brady violations, set forth above, from the “considerably less onerous” 

standard for knowing use of peijured testimony, which requires that the conviction 

“be set aside if there is any reasonable probability that the false testimony could have 

affected the jury’s verdict . . . ” 992 F.2d 491, 497 (5th Cir. 1993) (emphasis in 

original) (quoting Bagley, 473 U.S. at 679 n.9). The rationale for this less demanding 

materiality standard in cases involving uncorrected peijured testimony is that “[s]uch 

a corruption of the truth-seeking process . . . strikefs] at the confidence of the 

conviction and sentence.” Id. In Kirkpatrick, also a capital case, the court explained 

that “the proper frame of reference, at least with regard to the punishment assessed, 

is whether the mind of one juror could have been changed with respect to the 

imposition of the sentence of death.” Id. In this case, there is far more than “any 

reasonable likelihood” that had Farr been subjected to informed cross-examined about 

his motives for testifying and about his role in bringing about the trip to Dallas during 

which Banks allegedly retrieved a gun for use in robberies, the jury’s adjudication of 

Mr. Banks s future dangerousness would have been affected.

The Director argues that the court below erred because (1) the record does not 

demonstrate that Farr s informant status was not disclosed prior to or during trial, and 

(2) the evidence presented in support of this claim was defaulted and unexhausted. 

These arguments are misconceived.

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First, there is substantial evidence in the record supporting the Magistrate 

Judge’s finding that the prosecution did not disclose Farr’s paid informant status until 

the 1999 evidentiary hearing. At the examining trial held just prior to Mr. Banks’s 

indictment, counsel asked Deputy Huff to disclose the identity of the informant. Huff 

refused to answer the question, t o  Pet. RE at Tab I at 24-25. Although the Brady 

doctrine required the trial prosecutors to formally advise counsel of Farr’s status, 

there is no pleading or oral reference to Farr’s status as an informant anywhere in the 

trial record. On the first day of trial, Cooksey informed the court that he possessed no 

information concerning any of the state’s witnesses. 1SR at 99. On cross- 

examination, he directly asked Farr if he was paid for his testimony. 9SR at 2274. 

Farr unequivocally denied any such payment. Id. Given Cooksey’s strategy to show 

the jurors reasons to distrust Cook and Farr, he surely would have brought Farr’s 

deception to their attention had he been advised of Farr’s status. And when Huff 

testified in the court below, he hesitated momentarily prior to responding to counsel’s 

question concerning the identity of the informant to make sure it was now proper to 

identify Farr as the informant. Tr. at 96. Surely if this fact was disclosed prior to trial, 

either prosecutor or Elliott or Officer Huff would have confirmed it. Neither did. And 

the Director has never taken the position that this information was supplied to 

Cooksey at trial. Thus, the entire record on this point runs in but one direction; Farr’s

52



paid informant status in this case was not disclosed until Farr first confirmed it in his 

1996 declaration and Elliott and Huff testified on the point at the hearing below. The 

Magistrate Judge’s finding of fact is amply supported by the record.

Second, the Director ignores controlling law in arguing that Mr. Banks’s 

inability to uncover Farr’s true status during state court proceedings renders the newly 

discovered facts defaulted for these proceedings. At trial, the prosecution assured the 

defense that there was no need to litigate discovery matters; if governing law required 

disclosure, the state would voluntarily disclose. The state did not keep its promise and 

suppressed Farr s paid informant status. Mr. Banks pleaded that Farr was an 

informant in his third state habeas proceeding. Candor required the state to respond 

truthfully and admit his true status. Instead, Mr. Elliott, who was then representing 

the state’s interest, ignored the claim and made no response. It was only after this 

matter was filed in federal court that Mr. Banks located and gained access to Mr. Farr, 

who for the first time revealed his informant status in this matter. And it was only 

because of the court ordered evidentiary hearing that Mr. Banks had the opportunity 

to place Mr. Elliott and Mr. Huff under oath and directly inquire about Mr. Farr’s true 

status. Under these circumstances, the district court was correct to allow Mr. Banks 

to develop these facts in a federal hearing. Strickler v. Greene, 119 S.Ct. 1936 at 

1948.

53



3. The District Court Erred In Failing to Adjudicate The 
Prosecution’s Suppression of Charles Cook’s Lengthy Pretrial 
Statement Withheld Material Impeachment Evidence and 
Violated Due Process

Even though Mr. Banks pleaded in his petition that the prosecution had

suppressed impeachment material concerning Charles Cook, and subsequent

discovery forced the prosecutors to reveal the lengthy pretrial interview which

contained many statements inconsistent with his trial testimony, the court below

refused to adjudicate this claim because it determined that Mr. Banks’s failed to

formally amend his petition to add this claim. This ruling is clear error.

A. The Prosecution’s Suppression of Charles Cook’s Lengthy 
Pretrial Statement Withheld Material Impeachment Evidence 
and Violated Due Process

The record shows beyond question that the prosecution possessed at trial the 

long transcript of Cook’s eve-of-trial interview with Huff and others, and that it was 

not disclosed to the defense at or prior to trial despite pretrial assurance of disclosure 

of all discoverable material. It was first disclosed pursuant to the Magistrate Judge’s 

prehearing discovery order. In addition, there is no debate about the importance of 

Cook’s credibility -  he was the state’s most important witness. There can be little 

doubt that if the defense had access to this document for its cross-examination of Mr.

54



Cook, it is very likely that the jury would have possessed grave doubt about his 

veracity.

Mr. Cook provided the prosecution with two statements prior to his testimony 

at Mr. Banks’s trial, the first made in April, 1980 and the second in September, 1980. 

The second statement frequently contradicted and severely undercut the believability 

of the first statement. The State s failure to provide Cook’s contradictory September

statement to counsel denied Mr. Banks access to crucial impeachment evidence that

would have provided the jury an appropriate opportunity to evaluate the credibility 

of Mr. Cook.

In general, Cook’s testimony filled numerous evidentiary gaps that organize 

around four themes. First, Cook’s testimony purported to generally follow his April 

statement to the police, and, therefore, corroborate that statement. This was important 

because the April statement supposedly contained details about the murder that could 

have been told to Cook only by the murderer and was provided shortly after his first 

contact with the police, before the police could have fed him facts about the crime. 

Second, Cook’s testimony described the circumstances surrounding Banks’s arrival 

in Dallas. This testimony was critical because the time of his arrival provided the state 

with an apparently believable time-frame in which Banks could have committed the

55



murder and driven to Dallas, and the description of the events surrounding his arrival 

abetted the inference that Banks had committed the murder.

Third, Cook’s testimony provided the state with a confession that it otherwise 

lacked. Although confessions are usually critical pieces of evidence, this confession 

was uniquely important because there was no apparent motive for the murder, the 

events precipitating the murder in no way foreshadowed a violent crime, and the State 

possessed no other evidence linking Mr. Banks to Mr. Whitehead’s death. Finally, 

Cook’s testimony provided a complete explanation as to why the state could not

present physical evidence from the crime, such as the car, that would link Mr. Banks 

to the crime.

Careful review of the suppressed statement shows it contains voluminous 

evidence that Charles Cook’s trial testimony was inaccurate, fabricated, coached, and, 

in some instances, simply a boldfaced lie. Its non-disclosure denied Mr. Banks access 

to evidence that could have rendered Cook unworthy of belief.

1/The September Statement Reveals that Cook’s Anril Statement
Was Tainted by Police Threats and Police-Sunplied Details of the
Crime

Charles Cook first gave a statement to the police on April 24,1980. Tr. Ex. B-

2. That statement contains information about the murder that presumably could have 

been told to Cook only by someone with direct knowledge of the crime. Yet the

56



September statement contains telling evidence that could have led the juiy to 

conclude that law enforcement officers corrupted the April statement, first by 

threatening Cook with prosecution and then by giving him critical details about the 

crime. This information casts grave doubt as to the origin and trustworthiness of the 

information contained in the April statement.

For example, Cook stated that when the police arrived at his house, Huff said, 

“you just gave this pistol to Delma Banks.” Pet. RE Tab F at 16. According to Cook, 

Huff then said, “Did you know that Delma Banks was wanted for murder?” Id. Cook 

stated that after he responded affirmatively to this question, Officer Huff said,“[Y]ou 

mind telling us about it?” Cook then stated that before he responded, Huff said, “We 

can get you to help us.” Id. (Emphasis added).10 As a result, Cook stated that he 

agreed to cooperate with Officer Huff. Id. Finally, while describing these events, 

Cook identified Huff by name.

The September statement also reveals that Cook initially maintained that the 

police had not assisted him with his statement. But only minutes later, he 

acknowledged that in fact he was given significant details about the murder. In that 

regard, Assistant District Attorney McDaniel, after listening to Cook recount his

10At the hearing, both Cook and Huff agreed that Cook was frightened during this 
meeting. Cook explained that he was scared because he feared that he would be implicated in a 
murder and wanted to avoid that at all costs. See Tr at 141-42

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story, asked, “Did the police officers sit down and discuss what all they knew about

the case before you gave your statement?” Id. at 19. In response, Cook said, “No sir.”

Id. Thereafter, McDaniel, said, “They just told you to sit down and write it.” Id.

Again, Cook said, “Yes sir.” Id. McDaniel asked one last time, “And nobody helped

You?” Id. Cook maintained his position, stating “No. Sir. I was in a room by myself.” 

Id.

However, in response to McDaniel’s additional probing, Cook contradicted this

position. Cook stated on three occasions that he knew the exact date that Banks had

first come to Dallas (April 12, 1980) because the police had told him the date of the

murder prior to his giving this statement. Id. at 19-20. Additionally, Cook stated that

prior to his giving his statement, the police had also told him when the murder had

taken place, and specifically referred to the murder victim as a “white boy.” Id. at 20.

—The September Statement Reveals that Cook’s Trial Testimony 
was Rehearsed, Coached. Inconsistent, and. IJntmthfiil

Mr. Cook testified at trial that he had never spoken to anyone about his 

testimony and that Mr. Raffaelli put him on the stand without knowing what he would 

say. 8SR at 2314. This was a lie. The September statement unequivocally contradicts 

this testimony. It reveals a pattern whereby the prosecution team worked to rehab 

critical elements of Charles Cook’s testimony that were either not consistent with his

58



original police statement or were not to their liking, and, thereafter, replaced them

with a version of events that was extremely helpful, if not absolutely necessaiy, to the 

success of their case.

i. The Events Surrounding Banks’s Arrival in Dallas 

Cook began his trial testimony by stating that Banks arrived in Dallas on 

Saturday, April 12, between 8:00 and 8:30 a.m. and that he independently 

remembered the date because the previous week was Easter. 9SR at 2285. Prior to 

trial, however, Cook stated that he was able to determine the date only because the 

police had told him the date that Whitehead was murdered. Pet. RE Tab I at 20. 

Immediately thereafter, Cook testified that Banks asked him whether he would take 

him to a motel because he did not know anybody in Dallas. 9SR at 2287. In Cook’s

practice sessions, however, Cook stated the exact opposite -  he offered to take Banks 

to a motel. Pet. RE Tab F at 5.

Cook testified at trial that he saw blood on Banks’s pants shortly after they 

dropped off Cook’s wife at work, and that as a result, once they arrived back at 

Cook s house, he offered Banks a change of clothes. In the April statement, however, 

he stated that he saw the blood only after he took Banks back to his home and after 

Banks changed clothes, which, of course, would be highly unlikely. Initially, during 

the pre-trial sessions, Cook stated that he saw the blood on Banks’s paints after he

59



(Banks) took Cook’s wife to work that morning. Pet. RE Tab F at 5. In response to 

these discrepancies, Assistant District Attorney McDaniel berated Cook, asserting, 

“Your statement [to the police] is obviously screwed up.” Id. at 24. Moreover, 

McDaniel said, “It does not make any sense that he changed clothes and you got back 

into the car 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.” Id. Finally, McDaniel 

provided specific advice on how to handle this problem if it arose at trial. He said, 

[T]hey are going to ask you about it and you are just going to have to explain it. That 

you might [sic] a mistake and you got your facts out of sequence.” Id. at 24.

Immediately thereafter, once McDaniel had “corrected” the sequencing of 

when Cook had given Banks the clothing, he questioned Cook about still other 

contradictory statements that Cook made about the color of the clothing. Id. at 24. 

Initially, during Cook’s pre-trial testimony, Cook stated that “[he] put him in a pair 

of blue pants,” and “a [blue] flowered shirt to go with [his] blue pants.” Previously, 

in Cook s April statement, however, Cook gave a different account, stating that he 

gave Banks a brown pair of pants and blue shirt. McDaniel, therefore, told Cook, 

Your statement right her [sic] says I put him in some brown paints and a blue shirt. 

You told me you put him in bloue [sic] pants a blue flowed shirt.” Id. In response, 

Cook acknowledged that his April statement was incorrect. Id.

60 •  •



Shortly thereafter, leaving nothing to chance about the color of the clothes at 

trial, McDaniel told Cook how his statement should read: “Anyway, the way this 

statement should read is that... on the way back [from the hotel] you noticed blood 

on [Banks ] pants so you took him home and changed his clothes[.]” Id. at 26. 

(Emphasis added). Apparently, Cook got the message. At trial, Cook testified to that 

order of events, and, furthermore, avoided giving any description of the clothing. 9SR 

at 2281-2291.
ii. The Confession

At trial, Cook testified that Banks confessed to him. The pre-trial practice 

sessions reveal gaping inconsistencies between the version of events presented at trial 

and the version explored prior to trial. For example, when first discussing the events 

that immediately preceded the confession, Cook did not mention that he had told 

Banks that he had been to jail two times and that he did not want any trouble in his 

home. Id. at 8-9. Additionally, Cook gave a conflicting account on the number of 

times that Banks told him that he shot Whitehead. Id. According to Cook, “[Banks] 

say [sic] took out the 25 automatic and shot him ... he said pow and shot him again 

... and he shoot [sic] him again to make sure he [sic] dead.” Id. at 8. Immediately 

thereafter, McDaniel, recognizing that the statement was inconsistent, said, “Okay,

I want you to go back over all that again. Tell me again what all he told you.” Id.

61



Cook, once again, indicated that Banks told him that he shot Whitehead three times. 

Id. at 9.

Finally, Cook gave a different motive for the killing than he gave at trial. 

During Cook’s pre-trial sessions, he said on at least two different occasions that 

Banks killed Richard Whitehead because Banks wanted to steal Whitehead’s car. 

Cook initially said, “I say why you shoot the man? Why you do it like that man? 

[Banks] said uh I don’t know man I wanted his car man.” Id. at 9. McDaniel, in 

response, said, Say that again. I don’t think it came in on the tape.” Id. Cook 

responded, “I say man why you shoot the boy? Why do you do it like that man? 

[Banks] said man I don’t know man I wanted his car.” Id.

Although Cook was asked to repeat his testimony on more than one occasion, 

he failed to mention the reason why Banks confessed to him, but nonetheless 

volunteered this information in his initial statement to the police. Likewise, although 

Cook maintained on two separate occasions that Banks told him that he killed 

Whitehead because he wanted to steal his car, Cook told the police that Banks told 

him that he killed Whitehead “for the hell of it.” Finally, although Cook maintained 

on two separate occasions that Banks told him that he shot Whitehead three times, he 

told the police Banks told him that he shot Whitehead four times.

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Aware that these discrepancies would allow the defense to seriously undermine 

Cook’s credibility, McDaniel took corrective action. After Cook was finished going 

over statement for the first time, McDaniel read him the part of his April statement 

in which Cook said to Banks “tell me the truth because I’ve been to prison two 

times[.] Id. at 27. Thereafter, McDaniel said, “[N]ow, I just asked you to go over 

twice exactly what was siad [sic] between you and [Banks] and you left that out. You 

didn t say anything about having, you telling him you’ve gone to prison two times.

Did you tell him that you been to prison two times?” Id. In response, Cook responded 

affirmatively. Id.

Additionally, and immediately after this question, McDaniel said, “And then 

you said, I can’t stand no kind of trouble at all. Red said, ‘Man, me [in] this white boy 

was m the woods in Texarkana drinking when [sic] I thought about killing him and 

taking his car to Dallas just for the hell of it.’” Id. at 27-28. Noticing that this part of 

the statement was both inconsistent and incomplete in comparison to the story that 

Cook just told him, McDaniel said, “You realize that I just read you is different that 

[sic] what you told me before?” Id. at 28. Cook responded by stating, “Yes, sir.” Id. 

Thereafter, McDaniel said, “What’s different abot [sic] it?” After correcting several 

other parts of the statement, however, Cook maintained, once again, that Banks killed 

Whitehead for his car and did not state anything about Banks wanting to kill

63



Whitehead for “the hell of it ” Id. at 28. Notwithstanding, someone laterplaced blocks 

(i.e., “□”) around the words “just for the hell of it.” Id.

Finally, McDaniel read the portion of the April statement in which Cook 

indicated that Banks told him that he shot Whitehead four times. Id. at 28-29. 

Thereafter, McDaniel said, “Now a minute ago I asked you how many times you 

thought that he shot the boy.” Id. at 29. After listening to the version in the April 

statement, Cook said, “Yah, four times.” Id. McDaniel said, “And you told me you 

thought three. According to this statement, it sounds like he shot him at least four[.]” 

Id. Providing no direct response, Cook said only, “Yah, right[.]” Id. Sensing that 

Cook did not know the answer to the question, McDaniel said, “I know that you don’t

know how many times he shot him[.]” Id. Cook acknowledged that McDaniel was 

correct.

As a result of these pretrial sessions, Cook’s trial testimony became more or 

less consistent with the April statement. Cook stated, therefore, that prior to the 

confession, he told Banks that he had been to jail two times. 9SR at 2295. 

Additionally, Cook stated that Banks told him that he decided to kill Whitehead for

the hell of it. Id. Finally, Cook stated that Banks told him that he shot the victim four 

times. Id. at 2126-27.

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According to Cook’s trial testimony, moreover, immediately after Banks’s 

confession, Cook asked Banks “what he was going to do and [Banks] said he didn’t 

know.” Id. at 2127. Cook testified that he then said, “Well you can’t stay here now[,]” 

but that Banks refused to honor his request, stating “let [me] think about it[.]” Id. 

Refusing to back down to Banks, Cook responded, “You can’t stay[.]” However, at 

that very moment, when Cook was getting ready to kick Banks out of his home, Cook 

testified that he, for the first time, noticed that Banks had a gun. Id. Cook stated that 

[he] was afraid, and [he] left out [sic] of the room and told him to get some rest, 

think about what he was going to do, you know.” Id. at 2127-28.

However, in Cook’s police statement, he stated that he saw the gun prior to the 

confession, and, moreover, never mentioned that Banks’s threatened him. Even more 

contradictory, when Cook recounted the events that took place immediately after the 

confession, Cook never mentioned anything about seeing Banks’s gun that night. Pet. 

RE Tab F at 9 & 10. Cook then went on to describe the events that took place the next 

day, indicating that Sunday night he took Banks’s gun from him because he wanted 

to protect his family. Id. at 11. After hearing this statement, McDaniel inquired 

whether Cook had ever seen the gun before that night. Id. Cook responded by stating 

that the first time he saw the gun was in the console of the car on the morning that 

Banks arrived in Dallas. Id.

65



Moreover, when McDaniel told Cook that his pre-trial statements were 

inconsistent with his April statement and asked him whether he could tell him what 

was wrong with his pre-trial statement, Cook said he did not tell him that he saw the 

pistol in the console of the car. Id. at 28. And yet again, Cook stated not only that he 

saw Banks’s pistol that morning in the car, but that he showed Banks his gun in order 

to demonstrate that he was not intimidated. Id. at 35-36.

The version Cook told at trial is the version that was most helpful to the state’s 

case. This testimony allowed the jury to find that Banks confessed to Cook because 

it demonstrated that Cook’s reaction to Banks’s confession was credible. Most 

importantly, although Cook never seemed to get the story right during the pre-trial 

sessions, the fact that Cook told the best-and drastically different-version at trial, 

strongly suggests Cook received additional assistance.

iii. The Disposal o f Physical Evidence

Cook went on to testify that he disposed of all of the physical evidence from 

the crime that Banks brought to Dallas. This was not consistent with remarks made 

during the pre-trial sessions. For example, although Cook consistently stated that he 

got rid of the car that Banks was driving, he gave conflicting accounts of the events 

surrounding the disposal. During the pre-trial sessions, Cook stated that he left the car 

on “Town Drive.” Pet. RE Tab F at 16. Additionally, Cook first stated that he left the

66



car keys in the ignition. Id. at 12. Nevertheless, in his April statement, Cook stated

he left the car at “Canna Drive.” Furthermore, he stated he left the car keys under the 

seat. Id. at 2.

Once again, after Cook finished going over his statement, McDaniel returned 

to interrogate him about the two inconsistent statements. McDaniel read Cook his 

April statement that contained this testimony; McDaniel, however, either did not 

mention the name of the street or the information was not transcribed.11 Thereafter, 

McDaniel said, “Now a minute ago you left the keys in the ignition.” /*/. at 30. Going 

along with the version that was consistent with his statement to the police, Cook said, 

“I left them up under the seat.” Id. at 30. Then McDaniel said, “Which one is it[.]” 

Cook then responded, “I left them under the seat.” Id. at 30.

Equally problematic is Cook’s pre-trial testimony regarding the events 

surrounding the selling of items that were in the car. In Cook’s April statement, he 

indicated that the day after Banks left Dallas, in addition to dumping the car, Cook 

sold the car’s radio, booster cables, tool box and Banks’s pistol to his friend across 

the street. Tr. Ex. B-02 at 2. In Cook’s pre-trial statement, however, he made several 

statements that were inconsistent with his police statement.

The pre-trial statement reads: “[T]he next morning around 6:00 I took the hot car and 
left it at the end o f_____ Drive with the keys under the seat.” Pet RE Tab F at 30

67



For example, Cook stated that Banks sold the car’s radio. Pet. RE Tab F at 13. 

Additionally, when McDaniel asked Cook when he sold the items, Cook gave a 

contradictoiy statement, initially indicating that “[he] didn’t sell the gun until that 

Wednesday.” Id. As a result, McDaniel continued to query Cook about the date, at 

which point Cook said for the second time that he sold the items on Wednesday. Id. 

Notwithstanding, McDaniel continued to probe Cook on this issue, asking “[A]nd 

after after [sic] you put him on the bus that Monday afternoon ... did you take the 

booster cables, the tool box, and the pistol all over to Bennie at once or did you take 

them over there at different times.” Id. at 14. Cook responded, “I took ’em over there 

at once.” Id. McDaniel then returned specifically to the date: “And what day was 

that? Cook changed his response, saying, “This was on a uh it was on a Tuesday 

instead of a Wednesday. It was on a Tuesday ’cause it was the next day after[.]” Id.

However, before Cook could finish his sentence, McDaniel interrupted, “It was 

the same day that you dumped the car.” Id. Cook, however, said, “It was the next day 

after I dumped the car[,]” which, despite Cook’s changing of the date to Tuesday, 

would have meant that it was actually Wednesday. McDaniel said, “You dumped the 

car Tuesday morning before you went to work.” Id. at 14. Returning to Tuesday,

which would have made Cook’s previous statements incorrect, Cook said, “Yeah it 

was that Tuesday evening.” Id.

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Thereafter, McDaniel moved the questioning along to other matters. After 

questioning Cook about his other inconsistent statements, McDaniel returned to the 

question of whether Cook or Banks sold the car’s radio. McDaniel, said, “Now you 

told us that Delma sold that cassette . . .  [.]” Id. at 30. Cook maintained this position, 

“Yah, well he sold it to Benny, must have sold it to Benny[.]” Id. Again, McDaniel 

asked, “Well did you sell it to Benny or did he sell it to Benny?” Id. Cook said, “Well, 

he sold it to Benny.” As a result, McDaniel asked, “Your statement that you sold it 

. . .  That’s not right?” Id. Cook said, “No[.]” Id.

At trial, Cook never mentioned anything about where he left the car keys, and, 

moreover, stated that he left the car on “Canada Drive.” 9SR at 2303-2314. 

Additionally, Cook stated that he sold his neighbor the gun that Tuesday evening. Id. 

at 2305. Finally, Cook indicated that he sold Jones a green tool box and a set of 

battery cables, but did not mention anything about a car radio. Id. Cook’s trial 

testimony, therefore, would indicate not only that McDaniel’s assistance in the pre­

trial testimony greatly assisted Cook, but also, given the fact that Cook had such 

difficulty getting the story right, that Cook subsequently received additional 

assistance.

In summary, this suppressed exhibit reveals a literal treasure-trove of 

inconsistent statements as well as numerous instances where law enforcement

69



officials literally break down and reassemble Cook’s narrative so that itrings true and 

can withstand cross-examination. Given the importance of Mr. Cook’s credibility to 

the question of whether Mr. Banks was guilty of capital murder, it would be hard to 

imagine a pretrial statement that could be more significant than this one.

The prosecutor’s decision to withhold this document prevented the jury from 

playing its most important role-determining the credibility of the state’s key witness. 

It also denied Mr. Banks a fundamentally fair trial.

B. This Issue Was Properly Before the Court

The court below never reached the merits of this claim because it mistakenly 

concluded that Mr. Banks failed to assert this claim in his petition. This is plain error.

First, as best he could, Mr. Banks pleaded that the prosecutors had withheld 

impeaching evidence on its two critical witness, Cook and Farr. On page 46 of the 

petition, Mr. Banks alleged, as one of several due process violations committed by 

trial prosecutors, that the prosecutors “knowingly failed to turn over exculpatory 

evidence as required by Brady v. Maryland.” 1R at 46. In this very paragraph, Mr. 

Banks specifically mentioned key state witnesses Charles Cook and Robert Farr.12Id. 

The Director plainly understood that Mr. Banks was asserting a claim that the state

12 ^  ®anks cannot be faulted for not providing more detail. He pleaded all that he knew 
and provided the Director with sufficient notice o f this constitutional claim.

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had withheld Brady material concerning both Cook and Farr. In its Answer, under the 

heading “The State did not suppress favorable, material evidence,” the Director 

acknowledged that Brady imposed “an affirmative duty [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.” 1R at 108-109. More specifically, the Director understood precisely that 

Mr. Banks was alleging that the state suppressed at trial material impeachment 

evidence concerning Charles Cook. “Banks contends that the State suppressed

material impeachment evidence in connection with its witness Charles Cook.” Id. at 

207.13

Thereafter, Mr. Banks conducted discovery and filed declarations from both 

Cook and Farr. Cook s declaration said, inter alia, that he had engaged in extensive 

discussions with law enforcement officials about his testimony shortly before trial. 

Largely because of this proffered evidence, the Magistrate Judge granted Mr. Banks

Importantly, the Director did not complain that he could not ascertain what Mr. Banks 
was alleging in his petition, nor request that the Court direct Mr. Banks to be more specific. He 
understood that Mr. Banks was alleging, inter alia, that trial prosecutors had withheld 
impeachment material concerning Charles Cook. Further, the Director did not respond that he 
had reviewed the files o f the District Attorney and could assure the Court that no such material 
was contained therein; instead, he took the position that this claim should be rejected because 
Mr. Banks was unable to prove the merit o f the claim. Thus, the Director’s position was that he 
understood that Mr. Banks was pleading a claim that the trial prosecutor had suppressed, inter
alia, impeachment material concerning Charles Cook, but that it lacked merit because o f a lack 
of proof.

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limited discovery and ordered the production of records in the possession of the state 

that concerned, inter alia, interview notes, and all other written documentation” 

concerning Charles Cook. See 3R at 698. In compliance with this order, the District 

Attorney disclosed, for the first time, portions of his file. One lengthy document 

contained therein was the seventy-four page transcript of a pretrial interview between 

law enforcement officials and Charles Cook. This document, later marked and 

introduced at the evidentiary hearing as Petitioner’s Exhibit B-04, became one 

important piece of evidence to establish his claim that trial prosecutors deprived Mr. 

Banks of due process of law by suppressing material impeachment evidence 

concerning the state’s key trial witness.

After these disclosures, and well in advance of the scheduled evidentiary 

hearing, Magistrate Judge Malone issued an order establishing the issues for which 

she would allow the parties to submit evidence. Magistrate Judge Malone understood 

Mr. Banks wanted to present evidence on three issues, the first one being “ whether 

Petitioner’s Fourteenth Amendment rights were violated by the state withholding 

critical exculpatory and impeaching evidence concerning at least two important 

witnesses-Charles Cook and Robert Farr.” 2R at 630. The Order restated the 

Director s position on this issue that no such hearing should take place because Banks 

“has had an adequate opportunity to develop the factual background in state court.”

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Id. at 625. Importantly, the Director made no objection of surprise-that Mr. Banks 

had expanded his due process claim-or that any portion of the claim was 

unexhausted. Thereafter, the Director provided notice that he would utilize this very 

exhibit to defend again the due process claim. See 3R at 689 (“to defend against the 

due process claim, the Director will submit as Petitioner’s (sic) Exhibit 1, a copy of 

the entire investigative file of the Bowie County District Attorney’s Office in the 

Banks case”), and indicated further that it would call Assistant DA Elliott and former 

Bowie County Deputy Sheriff Willie Huff “to defend against the due process claim.” 

Id. The Cook statement was included in this file. Similarly, Banks made it very clear

that he would use this same Statement-Exhibit B-04~to establish his due process 

claim. 3R at 766.

At the evidentiary hearing, the claim that the prosecutors had suppressed 

important impeachment material as to Cook and Farr took center stage. Counsel for 

Banks made an opening statement in which he confirmed that he would prove, inter 

alia, that the trial prosecutors had unconstitutionally withheld impeachment evidence 

with regard to both Charles Cook and Robert Farr. Tr. at 8. Moreover, counsel for Mr. 

Banks examined prosecutor Elliott as to his understanding of the duty to disclose 

exculpatory and impeachment material, Tr. at 25-27, extensively examined Elliott 

about Cook’s September statement, and had Elliott confirm that the document had not

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been disclosed at trial, Tr. at 43-47. On redirect, counsel returned to the issue and 

asked Elliott to review portions of the exhibit that showed a staff prosecutor coaching 

Cook how to answer questions concerning his April statement that made no sense. Tr. 

64-68. On further redirect, Elliott was asked still more questions about 

inconsistencies between Cook’s trial testimony and statements in Ex. B-04. Tr. 72-74.

During the hearing, this exhibit was moved into evidence with no objection from the 

Director. Tr. at 75.

Given the facts that (1) Mr. Banks actually pleaded a due process claim of 

suppression of Brady impeachment material in his petition, (2) the Director made 

clear in its first responsive pleading that he understood the claim to include 

suppression of impeachment material concerning Mr. Cook, (3) the discovery process 

forced the District Attorney’s Office to reveal for the first time Cook’s extensive eve- 

of-trial statement, (4) the Magistrate Judge and parties agreed that one issue to be 

litigated at the June, 1999, evidentiary hearing was whether 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) state witnesses were extensively questioned about both the 

circumstances of the taking of this statement and its tardy disclosure, the court below

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clearly erred in concluding that this claim was not asserted in the petition and Mr. 

Banks’s failure to formally amend his petition left the claim out of the case.

Even if the court below was correct that this claim was not actually pleaded, 

Rule 15(b) of the Federal Rules of Civil Procedure 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.” Moreover, 

failure to so [actually] amend does not affect the result of the trial of these issues.” 

Given the repeated attention to the issue of whether the state suppressed impeachment 

evidence concerning Charles Cook during the six month period prior to the hearing, 

the Director had adequate and actual notice that the suppression of the September 

statement was within the gambit of “exculpatory materials” as the claim was 

articulated in the petition. Thus, the Director had actual notice that the issue was 

raised. See Mongrue v. Monsanto Co., 2001 U.S. App. LEXIS 8485, 8 (5th Cir. 

2001). Moreover, the failure of the Director to object to discussion of this issue at the 

hearing or object to introduction of Ex. B-4 on cross-examination of Mr. Elliott and 

Mr. Huff about the circumstances of the taking of the statement demonstrates the 

Director consented to litigating this claim. See generally Wright and Miller, 6A Fed. 

Prac. & Proc. Civ.2d 1493. This issue was thus properly before the District Court. 

That Court clearly erred in failing to adjudicate its merits.

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4. The Court Below Erred In Concluding That The Record Facts 
Failed To Show Charles Cook Testified Pursuant To A Deal That 
His Dallas Arson Charge Would Be Dismissed

The Magistrate Judge and District Court also rejected Mr. Banks’s claim that 

the trial prosecutors suppressed the fact that they had assured Charles Cook that they

would see that his then pending Dallas arson charge would be dismissed. This is 

error.

The record describes a classic quid pro quo situation between Cook and the 

trial prosecutors. Cook was the key prosecution witness, but was held in jail on a 

pending charge that earned a very long prison sentence. This matter was a topic of 

discussion between Deputy Huff and Cook. Indeed, it was Huff who informed Cook 

that habitual papers had been filed. Just prior to trial, Cook was provided with further 

inducement for his cooperation—he had daily conjugal visits with his wife. And within 

a day after his testimony, the arson charge was dismissed after the trial prosecutor 

traveled to Dallas and spoke to the Dallas prosecutor. Carol Cook testified that Huff 

threatened her that he would see that her brother (Charles Cook) spent a long time in 

prison if she did not cooperate with him.

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The Magistrate Judge based her decision in large part upon the misleading 

evidence Elliott had submitted to the state court on this claim. The Magistrate Judge 

credited the affidavit of Dallas County prosecutor Kevin Bryne, who the Court found 

was “the Dallas County prosecutor who handled the arson case against Cook [and 

who] testified by affidavit at the third state habeas application that ‘I have no 

recollection whatsoever of any prearranged plea bargain with Mr. Cook,. . . ”’ 5R at 

1134. A close inspection of Bryne s affidavit shows that he had no involvement 

whatsoever in the arson prosecution. He prosecuted Mr. Cook a year later in an 

unrelated case.

The showing that Mr. Banks made in support of this claim is substantial and 

establishes that Cook had a reasonable expectation that if he testified consistent with 

his initial statement (but falsely) the arson charge would be dismissed. Pursuant to 

Giglio v. United States, supra, the record shows a deal. The court below rejected this 

evidence only because it relied upon misleading evidence submitted by the trial 

prosecutors in state court.

II Trial Counsel’s Abject Failure to Prepare For Either Phase of 
Trial Deprived Mr. Banks of the Effective Assistance of 
Counsel

Mr. Banks, who had never before been convicted of any crime and who 

protested his innocence of this crime, proceeded to trial on his life with an attorney

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who made no preparation to (1) demonstrate that the state’s case, once properly 

examined, fell far short of demonstrating guilt, (2) similarly show that the state’s case 

for death was wholly lacking, and (3) establish that Mr. Banks was not the type of 

offender for whom the death penalty was meant to be imposed. While the 

prosecution’s suppression of previously discussed evidence relating to Mr. Farr and 

Mr. Cook significantly prevented trial counsel from providing effective assistance at 

each phase of trial, counsel’s own performance fell well below the Sixth Amendment 

duty to provide reasonably adequate legal representation.

The Court below determined that counsel’s failings were prejudicial as to 

sentence but not as to guilt. This Court ought to affirm the grant of sentencing relief, 

grant a certificate of appealability to review the guilt-phase prong of this claim and 

reverse the denial of guilt-phase relief.

1. G overning L egal Standards

Resolution of this claim requires application of familiar precedent. In 

Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two- 

prong test to judge counsel effectiveness. To demonstrate ineffectiveness, a petitioner 

must prove (a) that counsel provided seriously deficient performance that falls below 

the standard of reasonableness under prevailing professional norms, and (b) that the 

defendant was prejudiced by this deficient performance such that the resulting verdict

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is not reliable. 466 U.S. at 687. The Court recognized a strong presumption of 

reasonableness in favor of accused counsel, but noted that counsel has a duty to 

perform a reasonable investigation or to make a reasonable determination that a 

particular investigation is unnecessary. A petitioner must not prove prejudice by a 

preponderance of the evidence, rather a “reasonable probability sufficient to 

undermine confidence in the outcome” of the trial. 466 U.S. at 694.

This Court has outlined standards forjudging reasonable attorney performance. 

[A]n attorney must engage in a reasonable amount of pretrial investigation and ‘at 

minimum.. .interview potential witnesses and ... make an independent investigation 

of the facts and circumstances of the case.’” Bryant v. Scott, 28 F.3d 1411,1415 (5th 

Cir. 1994), citing Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985). In Biyant, 

trial counsel received new information at the pre-trial hearing that was not pursued 

before trial began 3 days later. Even though Bryant’s counsel had only 72 hours to 

contact the new witnesses, counsel was found ineffective for failing to do so. In Nealy 

v. Cabana, 764 F.2d 1173 (5th Cir. 1985), after Nealy was convicted for murder and 

received a life sentence, the court found counsel’s effort insufficient and harmful to 

his client when counsel failed to investigate available witnesses that could have 

corroborated the defendant’s testimony. The court acknowledged that the neglected 

witnesses could offer no more than corroboration for Nealy’s version of events and

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the state could still maintain a case against Nealy, yet, counsel’s failure to investigate 

and present these witnesses violated the Sixth Amendment. It was ineffective to

ignore them because timing and credibility were the two central issues in the case. As 

that court determined at 1179:

. . .  failure to investigate resulted in a ‘factual vacuum’ and cannot 
withstand Sixth Amendment scrutiny... Even though [counsel’s] 
errors cannot be shown by a preponderance of the evidence to 
have determined the outcome of Nealy’s trial, they were of 
sufficient gravity to undermine the fundamental fairness of the 
proceeding and to suggest that a new trial is necessary to ensure 
that Nealy receives a fair trial.

The Court has also found deficient counsel investigation for such inadequacies 

as failing to obtain and present available records that show a defendant’s good 

behavior in prison in the sentencing phase of a trial, see Martinez Macias v. Collins, 

810 F.Supp. 782 (1991), ajfd, 979 F.2d 1067 (5th Cir. 1992), and failing to 

investigate defendant's competency to stand trial or viability of insanity defense, 

“despite knowledge that further investigation might be fruitful,” Bouchillon v. 

Collins, 907 F.2d 589 (5th Cir. 1990).

More recently, the Court has had occasion to consider the effects of inadequate 

investigation upon the reliability of the trial process. In Moore v. Johnson, 185 F.3d 

244 (5th Cir. 1999), the Court determined that counsel had not adequately and 

independently searched for available defense evidence. See Moore, 185 F.3d 244 (5th

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Cir. 1999). “Counsel’s trial objections and their pathetically weak cross examinations 

of the state’s rebuttal witnesses undermine beyond a reasonable doubt the proposition 

that counsel followed up on information in the state’s file ... we find deficient 

performance on the basis that counsel failed to investigate the substance of the 

evidence to be introduced on rebuttal in response to Moore's alibi defense or 

proceeded unreasonably in light of that evidence.” Id. at 265.

Moreover the Court has concluded that the retention of independent experts can 

be an important component of defense counsel’s responsibility to conduct an 

independent investigation. In Loyd v Whitley, the Court found ineffective assistance 

when “the decision of defense counsel not to pursue an independent psychological 

analysis of Loyd was neither a strategic choice made after investigation nor a strategic 

choice made in light of limits on investigation.” See Loyd, 977 F.2d 149, 158. (5th 

Cir. 1992). Loyd’s death conviction was reversed and remanded after his counsel 

assumed that funds were unavailable to independently analyze state-presented 

medical information that defendant was not insane. “[Wjithout a psychiatrist’s 

assistance, the defendant cannot offer a well-informed expert’s opposing view and 

thereby loses a significant opportunity to raise in the juror’s minds questions about 

the state’s proof of an aggravating factor.” 977 F.2d at 160 (5th Cir. 1992) citing Ake 

v. Oklahoma, 470 US 68, 81 (1985).

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Along with independent investigation, the court also takes into consideration 

the strength of the state’s case when evaluating the impact of poor defense counsel 

performance. If the state’s case is weak, the ineffective performance of defense 

counsel will have a much greater impact on the outcome of the trial than if the state’s 

case is strong. In Moore, the court found numerous inadequacies including counsel’s 

failure to adequately investigate available evidence and premature exclusion of 

evidence suggesting that the shooting was accidental. “Counsel’s failure to 

investigate Moore’s proposed defense by interviewing and preparing for the state’s 

witnesses...counsel’s inexplicable and illogical failure to require submission of 

exculpatory language in Moore’s confession ...and counsel’s damaging cross- 

examination...and counsel’s complete failure to investigate or prepare for 

mitigation...are sufficient to demonstrate prejudice within the meaning of 

Strickland...there is reasonable probability that the outcome would have been 

different.” The strength of the state’s case was an important factor in Bryant v. Scott 

as well. Because there was no physical evidence connecting Bryant with the crime, 

the eyewitness identification of Bryant at the crime scene was the cornerstone of the 

state s case in chief. Consequently, information relevant to Bryant’s defense might 

have been obtained through better pre-trial investigation of the eyewitnesses, and a

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reasonable lawyer would have made some effort to investigate the eyewitnesses 

testimony.” Bryant, 28 F.3d 1411, 1418 (5th Cir. 1994).

b. The Factual Record

1. What Counsel Knew or Could Easily Have Learned Pre-Trial 

The state s case against Mr. Banks was largely revealed to defense counsel four 

months before the trial at the examining hearing. Pet. RE Tab I. There, counsel 

learned that Patricia Hicks and Patricia Bungardt would place Mr. Banks with Mr. 

Whitehead during the evening hours of April 11, and that Ms. Hicks would likely 

testify that Mr. Whitehead planned to return with Mr. Banks to the park, where his 

body was later found, to continue drinking and to search for marijuana. He also 

learned that Charles Cook, would likely testify that he had spent some of the weekend 

of April 12 with Mr. Banks in Dallas, and could be expected to say that Banks had 

been driving a green Mustang, a car like Mr. Whitehead’s that had disappeared, and 

had left a pistol with Mr. Cook that the state would claim was the murder weapon. He 

also was provided with some information about likely time of death. Willie Huff 

testified that when he first examined the body at the park on the morning of April 14, 

full rigor mortis had set in. Counsel also learned that an informant had tipped off the 

police that Banks planned to travel to Dallas to retrieve a gun.

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Mr. Cooksey also knew that Mr. Banks denied killing Mr. Whitehead and

taking his car. Banks told Cooksey that he had hitchhiked that weekend to Dallas. Tr. 

at 337.

From these accounts, it was clear that the state would likely proceed to trial on 

the theory that Mr. Banks befriended Mr. Whitehead on the evening of April 11, and 

after meeting both Ms. Hicks and Ms. Bungardt, returned to the Nash park and 

continued to drink with Mr. Whitehead until he decided to shoot him, steal the car, 

and drive to Dallas. Once there, he met Mr. Cook and various Cook family members, 

whereupon, the state would assert that, Mr. Banks revealed to Mr. Cook that he had 

killed Whitehead and requested that Cook get rid of the incriminating car and pistol.

Several obvious points of contention arose from these scenarios that warranted 

investigation:

Fust, state witnesses would place Banks with Whitehead on the evening 

of April 11 but Banks claimed he left him alive, and hitchhiked to 

Dallas. The state would assert that Banks did not hitchhike to Dallas but 

drove in Whitehead’s Mustang after killing him. Thus, one line of 

investigation called for either learning the identify of the individual who 

drove Mr. Banks to Dallas or identify ways to attack the state’s view that 

Mr. Banks drove the Whitehead car there.

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Second, the state claimed that Mr. Banks arrived in Dallas on Saturday 

morning in Whitehead’s car at roughly 8:30 a.m., in time to take Ida 

Mane Martin to her job. As Dallas is 180 miles from Texarkana, and 

Mr. Banks had never before been to Mr. Cook’s house, it would have 

taken, at the very least, three to four hours to navigate from the Nash 

park to Cook’s Dallas home. Thus, Mr. Banks would have had to shoot 

Mr. Whitehead by no later than 5:00 a.m. for this scenario to be 

possible. An extremely important, and obvious, second line of 

investigation, then, was to determine exactly when Mr. Whitehead was 

shot. If evidence could be developed that established he was shot any 

time after 5.00 a.m. on Saturday morning, it would have been next to 

impossible for Mr. Banks to have committed the crime.

Third, Charles Cook was a key witness, and the only witness the 

prosecution possessed who would testify that Mr. Banks made 

incriminating statements. Thus, investigating Mr. Cook and developing 

evidence to give jurors reasons to doubt his credibility or his account of 

events during the weekend of April 12 was essential.

2. Steps Trial Counsel Took to Prepare Mr. Banks’s Defense

m 85



The trial record in this case contains persuasive evidence that defense counsel 

made little effort to investigate these obvious lines of investigation, and the case 

generally, for either phase of trial. Indeed, counsel was wholly unprepared to

challenge the state’s evidence and affirmatively present evidence on Mr. Banks’s 

behalf.

In the days after Mr. Cooksey was retained, he and Mr. Waters spoke to a 

number of potential witnesses, mostly identified by Mr. Banks’s common law wife, 

Demetra Jefferson. Tr. at 336. However, after the May examining hearing, there is no 

indication that any further investigation was performed. Mr. Cooksey filed no 

motions until the middle of August, and even then, failed to ask that any of these 

motions be heard prior to the commencement of jury selection.

On the first day of trial, Mr. Cooksey openly conceded that he had made very 

little preparation for trial. He stated that he possessed no information about any of the 

state’s witnesses, and had not even reviewed the state’s witness list. Indeed, he had 

misplaced a copy of that list and had to request service of another copy. He also 

announced he had not reviewed the autopsy report nor the ballistics report. 9SR at

2200. There could hardly be clearer evidence that trial counsel was ill-prepared to 

commence a capital trial.

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As jury selection progressed, and as it appeared that no African American 

citizen would sit on the trial jury, he made no effort to protect Mr. Banks’s equal 

protection rights, even after Mr. Banks registered his concern about this practice.

During the guilt phase of trial, the record contains additional evidence that Mr. 

Cooksey was ill-prepared and even failed to understand his role as defense counsel. 

Although his client was claiming his innocence, Cooksey made almost no effort to 

develop a defense from the prosecution witnesses. Through neither Patricia Hicks nor 

Patricia Bungardt did he bring out the full extent of the problems with Mr. 

Whitehead’s car. Indeed, he did not even cross-examine Ms. Bungardt. With regard 

to Mike Fisher, he made no effort to explore the surrounding circumstances of Fisher 

hearing the loud noises to lay a foundation for later argument that little could be 

reliably drawn from his groggy account. Indeed, he stated on the record “I can tell this 

Court in all honesty I have never been to [the] park. I don’t even know where it is.” 

9SR at 2173. He failed altogether to cross-examine Deputy Huff and Marcus 

Jefferson. While he did attempt to develop reasons why the jury should disregard the 

testimony of Robert Farr and Charles Cook, as already noted, effective cross- 

examinations of both witnesses was prevented by the prosecution’s suppression of the 

powerful impeachment material. His examination of Dr. DiMaio consisted of only

87



two questions that focussed solely on the amount of alcohol Mr. Whitehead consumed 

prior to his death.

After the state rested its case, Mr. Cooksey requested a conference in chambers. 

Once there with Mr. Banks, counsel made a number of inquiries on the record: did 

Mr. Banks want to testify, and did he want Cooksey to call his mother or father or 

other witnesses to testify in his defense. For the first time, he asked Mr. Banks if he 

had a history of mental disorders. 1OSR at 2428. After exploring these issues with Mr. 

Banks before the Court, Mr. Banks asked Mr. Cooksey if he could have a discussion 

in private. The Court agreed. At the end of this conference, Mr. Cooksey made clear 

that the record showed that Mr. Banks had waived his right to testify as well as to call 

witnesses. This entire discussion should have taken place in private and not before 

the Court. Mr. Banks had the right to have the free and candid advice of counsel, free 

of others’ attention. Mr. Cooksey profoundly misconstrued his duty to speak to his 

client about such matters in private, and to do so well before trial.

Similarly, during the penalty phase, Mr. Cooksey sought another conference 

with the Court and client. During this one, it became unmistakably clear that he was 

wholly unprepared for that hearing. Even though he had already called several 

mitigation witnesses, Mr. Cooksey declared that he had never spoken to any of these 

witnesses before trial. He requested that his client tell him which witnesses to call

88



because since I don’t know these people, I don’t know any of these people, I don’t 

know how well they know you and how long they have known you.” Id. at 2536. 

Moreover, Cooksey again engaged Mr. Banks in a discussion about the direction and

content of his defense, not in private, but before the Court and on the record. Id. at 

2534-2545.

3. Actions a Reasonably Effective Attorney Would Have Taken

The record is now clear that had Mr. Cooksey performed competently, jurors

would have learned of substantial and unrebuttable holes in the state’s case that

would have required the jury to acquit. Moreover, even if it had returned a capital

murder conviction, had the penalty phase been handled effectively, there is not only

a reasonable probability, but an exceedingly strong one, that the jury would have

concluded that the state failed to meet its burden of proof on the future dangerousness

special issue. Thus a capital sentence would not have been imposed.

a. Trial Counsel Never Exposed the Fatal Shortcomings o f the 
Prosecution’s Case in Chief at the Guilt Phase o f Trial

Had Cooksey performed a competent, reasonably effective investigation of the 

state s case, he would have uncovered and presented evidence that would have 

established the very defense that he only could suggest to the jury-the state’s case fell 

far short of demonstrating Mr. Banks murdered Mr. Whitehead.

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The prosecution’s case proceeded on the theory that Mr. Banks repeatedly shot 

Mr. Whitehead at roughly 4:00 a.m., when Mike Fisher was awakened, and then fled 

in Mr. Whitehead’s Mustang to Dallas where he met Charles Cook at around 8:30 

a.m. Evidence that was available to Mr. Cooksey, and which is now in the record, 

overwhelmingly refutes this theory.

i. Unrebutted Time o f Death Evidence Strongly Suggests 
That Air. Whitehead Was Shot on Saturday Evening or 
Sunday Adorning, When The State’s Evidence Places Mr. 
Banks in Dallas

Competent evidence presented before this Court, which the Director made no 

effort to rebut, strongly suggests that the state’s time of death theory is wrong. The 

tell-tale signs were included in Dr. DiMaio’s autopsy report, but Mr. Cooksey failed 

to read the report prior to trial, and likely never read it at all. Dr. Riddick, a highly 

regarded and seasoned forensic pathologist who usually testifies in support of the 

prosecution, identified a number of factors in Dr. DiMaio’s report, and from the crime 

scene evidence, that both independently and collectively point to a time of death 

twelve to twenty-four hours later than when Mike Fisher reported hearing loud 

noises. In nearly all cases, rigor mortis appears shortly after death and recedes entirely 

within 36 hours. Both Mr. Hicks and Dr. DiMaio, however, detected full rigor mortis, 

when Huff first examined the body just after 10:00 a.m. on the 14th, and when DiMaio

90



performed the autopsy a day later, roughly 56 and 80 hours after Whitehead allegedly 

died. Giving every benefit to the state, Dr. Riddick found it highly unlikely that both 

Huff and DiMaio would have detected rigor mortis unless Whitehead was killed early 

Sunday morning, or at the veiy earliest, late Saturday evening. Other factors 

corroborated this view. There was no drying of the lips, no clouding of the cornea, 

and no discoloration of the abdomen. All of these symptoms should have been 

observed by DiMaio if Whitehead had passed away at 4:00 a.m. on Saturday.

At trial, the prosecution did not ask Dr. DiMaio to give an opinion on time of 

death and the Director did not call him or submit the opinion of another expert to 

counter Dr. Riddick’s findings.

Given Mr. Banks’s assertions of innocence, it is inexplicable that trial counsel 

did not attempt to investigate the strength of the state’s theory by reviewing Dr. 

DiMaio’s report and then by consulting with a pathologist. This one piece of 

unrebutted evidence raises a reasonable doubt about Mr. Banks’s guilt. The failure 

to present such evidence was plainly prejudicial to Mr. Banks.

Moreover, other evidence presented before the Court adds still more doubt 

about the prosecution’s time line. Mike Fisher testified at trial that while he could not 

be sure, he thought that the two sounds that he heard early Saturday morning were 

gunshots. This thin testimony alone supports the state’s time of death. In his direct

91



examination, Fisher gave no basis to assure jurors that he would be a good judge to 

know that the sounds that awakened him were indeed gunshots, as opposed to other 

loud noises, or were pistol as opposed to rifle shots. Mr. Cooksey, on cross- 

examination, made no effort whatsoever to explore whether Fisher’s hunch should be 

credited or taken with caution. Indeed, Fisher testified that he would have spoken to

Cooksey prior to trial but that Cooksey never made a request to speak with him. Tr. 

at 208.

Had Cooksey spoken to Fisher, he would have learned that there were good 

reasons to doubt Fisher’s ability to reliably classify the noises as pistol shots. He 

explained that he knows absolutely nothing about guns and that the sounds he heard, 

while they could have been gunshots, could also have been firecrackers or car 

backfires. Id. at 203-04. Nor was he sure what time he heard the shots. If Cooksey had 

armed himself with these facts, he could have raised a substantial question about 

whether Fisher s testimony had any value at all. Such an investigation would 

assuredly have altered his reference to Fisher’s testimony in closing argument that 

Fisher “certainly told you the truth, without a doubt.” 10SR at 2465.

The unrebutted expert testimony and clarification of the reliability of Fisher’s 

invaluable contribution to the state’s case was available to Cooksey. This evidence

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creates more than a reasonable probability that, had the trial jury heard it, it would not 

have convicted Mr. Banks of Mr. Whitehead’s murder.

ii. Tale o f Two Cars

Another essential ingredient to the state’s circumstantial case was that Mr. 

Banks stole a dying Mr. Whitehead’s car, sped away in it to Dallas, and with Mr.

Cook, drove it around Dallas over that weekend, and then left it with Cook to get rid 

of.

While Mr. Cooksey asked the jury not to believe Charles Cook, and thus not 

credit, inter alia, Cook s testimony that Banks drove up in a car matching the 

description of Mr. Whitehead’s, he made no effort to exploit the wildly differing 

descriptions of this car provided by state witnesses nor present evidence in support 

of a plainly viable alternative theory that Mr. Whitehead’s car mechanically could not 

have made it to Dallas and operate effectively without undergoing significant repair.

Witnesses Patricia Hicks and Patricia Bungardt both described Whitehead’s car 

as ailing. Hicks reported that repeatedly through the evening Whitehead had to get 

the car jumpstarted, and that it would not run for long without the lights dimming. 

These symptoms strongly suggest an electrical problem, the obvious sources being 

either the battery, alternator, or regulator. Indeed, at the examining trial, Huff had 

described the car’s problem as a faulty alternator, although at trial Hicks oddly (and

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likely mistakenly) described the problem as arising from the carburetor. Bungardt said

that before Whitehead could leave her home late on Friday evening, he had to use her

car to jumpstart his. Thus, these state witnesses described a car that could not reliably

start without a jump, and not travel very far without serious electrical problems 

arising.

Yet the state’s theory of guilt required this car, after Mr. Whitehead was shot, 

to repair itself, to permit Mr. Banks to drive it nearly 200 miles, mostly at night, 

without any problems, and once there, to function reliably. Mr. Cook described the 

car that Mr. Banks drove to Dallas as “a fast Mustang,” a “fast hot rod,” and the “hot 

car. Tr. Ex. B-2 at 1,2. He testified that he and Banks drove the car all over Dallas 

during that weekend, and never once described any mechanical problems. Id.

It was surely consistent with Mr. Banks’s defense to suggest to the jury reasons 

to doubt the state’s theory that Mr. Banks drove the ailing Whitehead car to Dallas. 

But Cooksey failed to mention the state witnesses description of the “two” cars -  the 

one that could barely run in Texarkana, and the racy, hot, fast car described by Mr. 

Cook in Dallas. It would also have been consistent, and helpful to Mr. Banks defense, 

to present affirmative evidence on this point. In state habeas proceedings, Mr. Banks 

did just that. He presented the affidavit of an experienced auto mechanic and 

proprietor of an auto mechanic shop, Robert Harlan. After reviewing the testimony

94



of each trial witnesses who offered evidence about the car, and weather reports from 

that weekend, Harlan opined that it was highly unlikely that a car with the problems 

described by witnesses Hicks and Bungardt could have been driven to Dallas without 

major work. He stated:

The jump-starts described by Hicks were accompanied by her 
recollection of Richard Whitehead attributing the problem to the 
“carburetor.” Since the carburetor could have no influence on this 
problem, it is likely that Whitehead had actually blamed the 
problems on the alternator, and Hicks remembered incorrectly. 
His attributing the problem to something that is not the battery 
alone directly suggest that either the alternator or regulator was 
not functioning properly.

Replacing a car battery by a mechanic with tools is generally flat­
rated at one-half hour’s labor. To replace the alternator and 
voltage regulator, for an experienced mechanic with tools, would 
involve two hours’ labor. In the likely circumstance that 
something in addition to the battery was to blame for the 
mechanical failure, it is doubtful that the car could have been 
driven from Texarkana to Dallas (approximately 3 hours) by 
simply replacing the battery. A weak charging system would not 
allow both the lights and windshield wipers to be operated over 
roughly one hour, even on a new battery. It is inconceivable that 
the car could have gone from Texarkana to Dallas, and then be 
driven for two days in Dallas, without making the necessary 
repairs.

[Pet. RE Tab H at 1-2] Mr. Cooksey did not perform reasonably in failing to 

investigate and point out these serious problems in the state’s case against Mr. Banks. 

This failure was also prejudicial to Mr. Banks’s defense.

95



iii. Failure to Expose Farr & Cook’s Unreliability 
and To Object to Prosecutor’s Repeated Vouching 
fo r their Credibility

Mr. Banks’s defense was also grievously harmed by the failure to expose to the 

jury that Mr. Farr had financial and penal motives in both serving as a informant and 

in testifying as he did in this case. At the guilt phase of trial, this allowed the 

prosecution to present Mr. Farr in a completely false light-as simply a citizen doing 

his civic duty in cooperating with the judicial system. The defense sustained even 

greater harm when jurors did not learn that Mr. Cook’s testimony was clearly 

rehearsed, was inconsistent on numerous grounds with prior statements, and that 

Cook possessed a powerful motive to testify as he did, namely to secure dismissal of 

a charge that upon conviction, could incarcerate him for life.

Mr. Cooksey cannot be held responsible for not exposing these enormously 

important circumstances. He had been assured, prior to trial, by the prosecution that 

it would disclose discoverable material without the need for litigation. The 

prosecutors understood the law required disclosure of exculpatory and impeachment 

value, but they failed to discharge their duty. The prosecution’s suppression of the 

impeachment material that is now in the record, not the unreasonable performance of 

counsel, resulted in the jury not learning of these important matters. Indeed, it is clear 

from counsel’s cross-examination of each witness that he sought to expose reasons

96



for the jury to distrust and not credit their testimony. It is hard to imagine a set of

circumstances upon which counsel would not have made full use of these materials.

b. Counsel’s Performance At The Sentencing Hearing Shows A 
Near Complete Absence o f Advocacy

Counsel s duty to be reasonably prepared takes on supreme importance at a 

capital sentencing hearing. Unlike many other sentencing proceedings, where a 

probation officer or court employee will prepare a detailed memorandum 

summarizing the defendant’s background, in a capital case, it is exclusively defense 

counsel’s job to identify and present evidence both to confront and expose 

shortcomings of the state s case and to affirmatively present evidence to demonstrate 

that imposition of a capital sentence would be excessive.

The record in this case speaks overwhelmingly of no preparation whatsoever. 

Mr. Banks’s parents both testified credibly that neither Mr. Cooksey nor Mr. Waters 

took a social history of their son, informed either that they would be called as 

witnesses, nor advised them of what questions counsel might ask, or what information 

might be helpful to their son’s case. Both were called totally blind. James Kelly 

testified that he had never spoken to Mr. Cooksey about testifying in this case, and 

on the morning he was called, was intoxicated. He was forced to sober up as best he 

could; he spoke to Mr. Cooksey for no more than a minute prior to his testimony, and

97



had no idea why he was placed on the witness stand. He never had a chance to tell 

either Cooksey or the jury that he knew Mr. Banks, Jr., and that he was a good person.

The record also shows that Cooksey almost completely delegated his 

responsibility to plan for the sentencing phase to Mr. Banks’s mother after the verdict 

of conviction was announced after 11:00 p.m. on September 29. Witnesses for Mr. 

Banks arrived at the courthouse the next morning not due to any action taken by Mr. 

Cooksey or Mr. Waters, but solely because Mrs. Banks, after checking herself out of 

the hospital during the early morning hours of September 30, returned home and 

called ministers and others. These were the witnesses who showed up to testify later 

that morning. But Mr. Cooksey did not interview any of them prior to calling them; 

indeed, on the record in the chambers conference, he confessed complete and total 

ignorance. He had to ask his client who each individual was and how Mr. Banks 

knew them. And he took this preliminary action to acquaint himself with the 

witnesses, not prior to the commencement of the hearing, but only after he had 

already called a number of the witnesses, not in a private setting with Mr. Banks, but 

in the judge s chambers on record. It would be hard to conceive of a situation that 

showed a more egregious breach of counsel’s duty to be prepared than the facts 

surrounding this capital sentencing proceeding.

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Mr. Cooksey similarly failed to explore the state’s case supporting the special 

issues. Counsel made no effort to speak to Vetrano Jefferson prior to trial. Had he 

done so, he would have found a cooperative Mr. Jefferson, and one that would have 

told him that he, rather than Mr. Banks, was the aggressor in the brief fight the two 

had had in the proceeding April. But because Mr. Cooksey had not spoken to Mr. 

Jefferson, he was not prepared to cross-examine and bring this truthful version of that 

incident to the juiy’s attention. His failure to do so allowed the prosecution to present 

that incident in a false and harmful light.

Cooksey’s failure to impeach Mr. Farr’s most damaging sentencing testimony, 

as was the case at the guilt phase of trial, cannot be laid at his feet. The prosecution 

had a clear duty to correct Mr. Farr’s untruthful testimony, but failed to do so.

The record contains, as the Court below found, much credible evidence that 

clearly establishes that the jury would likely have rejected recommending that Mr. 

Banks, a youthful, first offender, be put to death. Mr. Banks had no prior record, and 

enjoyed the support of a loving but troubled family. Dr. Cunningham’s testimony 

showed that Mr. Banks Sr.’s chronic abuse of alcohol nearly tore this family apart, 

caused Mr. Banks to endure repeated incidents of undeserved brutality and harsh 

discipline, and to witness many instances of extreme cruelty directed at his mother 

and siblings. While such an environment often leads young men to follow in their

99



father’s footsteps, Mr. Banks, Jr., did not so follow. He had no history of violence or 

alcohol abuse, and seemed to possess sufficient internal self control to suggest that 

he would not pose a particular risk of committing future acts of violence.*4

Given that it was Mr. Cooksey’s strategy to present evidence to persuade the 

jury to reject returning a finding on the second special issue, the narrative of Mr. 

Banks’s life as presented to this Court by Dr. Cunningham and Mr. Banks’s parents 

was compelling evidence. As the Court below concluded, there is a strong probability

that had the jury received such evidence, it would have rejected the imposition of a 

capital sentence.

3. The District Court Erred in Concluding That T he Swain  
Claim Is Defaulted and Meritless

14 The Director argues that the court below erred in holding a hearing on this claim The 
Magistrate Judge correctly applied the law in this regard. There had been no evidentiary hearing 
on this claim in state court and those courts had made no findings with regard to evidence Mr. 
Banks had proffered in support o f his claim. See Goodwin v. Johnson, 132 F.3d 162, 184-85 (5th 
Cir. 1998). The Director also asserts that the court below erred in considering much o f Dr. 
Cunmnghan’s testimony because it differed from the expert evidence Mr. Banks proffered before 
the state court. The Director has misread Dr. Cunningham’s testimony. Both Dr. Cunningham 
and Dr. Pena, the expert whose affidavit Mr. Banks proffered before the state courts, performed a 
nsk assessment, discussed Mr. Banks’s father’s alcoholism, Mr. Banks’s intelligence and 
learning disabilities, and his chronic skin disorder. Finally, the Director now claims that much o f  
Dr. Cunningham’s testimony concerning Mr. Banks’s family dysfunction was hearsay. The 
Director made no objection at trial to Dr. Cunningham’s testimony in this area. Mr. Banks’s 
parents were at the hearing and available for examination. The Director did not call either after 
Dr. Cunningham's testimony to question further on this or any other topic. All o f Dr. 
Cunningham's testimony was proper and the court below did not err in considering it. See United 
States v. Schuster, 111 F.2d 264, 271 (5th Cir 1985).

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In this mixed race case, the jury sworn to try this case was all-white. This 

composition did not occur naturally, but resulted from the purposeful practice of the 

Bowie County District Attorney’s Office to peremptorily remove fully qualified 

African-American jurors. Contrary to the conclusion of the court below, the claim is 

meritorious and not defaulted.

A. Governing Standards

In Swain v. Alabama, 380 U.S. 202 (1965), the Supreme Court considered the 

type of discrimination Mr. Banks claims-the state’s systematic exclusion of African 

American citizens through the use of peremptory challenges-and held that a 

petitioner could establish a prima facie case of purposeful discrimination by 

introducing evidence that the prosecutor, “in case after case, whatever the crime and 

whoever the defendant or the victim may be, is responsible for the removal of 

Negroes who have survived challenges for cause with the result that no Negroes ever 

serve on petit juries.” 380 U.S. at 223. In Evans v. Cabana, 821 F.2d 1065 (5th Cir.), 

cert, denied, 483 U.S. 1035 (1987), this Court adopted the standard set out in Willis 

v.Zant, 720 F.2d 1212 (11th Cir. 1983), cert, denied, 467 U.S. 1256(1984),affdsub  

nom., Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988), in which the court held that a 

petitioner “must prove on specific facts that the prosecutor had a systematic and 

intentional practice of excluding blacks from traverse juries in criminal trials through

101



the exercise of peremptory challenges, and that this practice continued unabated in

petitioner’s trial.” 720 F.2d at 1220 (emphasis in original). The court was careful to

explain that this showing could be established either by “direct evidence such as

testimony, or indirect evidence such as statistical proof,” and held further that a

[petitioner is not required to show that the prosecutor 
always struck every black venireman offered to him,
[citation omitted], but the facts must manifestly show an 
intent on the part of the prosecutor to disenfranchise blacks 
from traverse juries in criminal trials in his circuit, “to deny 
the Negro the same right and opportunity to participate in 
the administration of justice enjoyed by the white 
population, [citation omitted][emphasis in original].

Id.

In short, while a petitioner need not show that the prosecutor struck blacks 

one hundred percent of the time,” United States v. Pearson, 448 F.2d 1207, 1217 

(5 th Cir. 1971), he must marshal enough historic proof to overcome the presumption 

of propriety in which Swain clothes peremptory challenges, and thereby show [the 

prosecutor’s] intent to discriminate invidiously.” Willis, 720 F.2d at 1220. Thus, proof 

that a prosecutor struck every black juror in one trial, see Easter v. Estelle, 609 F.2d 

756, 759 (5th Cir. 1980), or in six trials in one week, see Pearson, 448 F.2d at 1216, 

1218, is insufficient to demonstrate a prima facie case under Swain.

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b. The Record Evidence Plainly Establishes a Prim a Facie Case 
of Systematic Exclusion of African Americans from Criminal 
Jury Service in Bowie County from 1975 through 1980.

Mr. Banks’s prima facie case is based upon a statistical analysis of the

prosecution’s striking practices over a six year period in the large majority of felony

cases that went to trial, by review of the strike sheets from these cases, and by the

informed observations of several local trial attorneys who regularly tried cases during

this period. This combined evidence shows a stark pattern and practice that resulted

in more than 9 out of every 10 qualified African American jurors being peremptorily

struck by the prosecution.15

i. The Raw Numbers Show Wide Disparity 

Through an exhaustive search of official public records, Mr. Banks was able 

to identify the race o f494 of the 524 venirepersons qualified to serve (those persons 

in the “pre-peremptory strike pool”) in 17 cases that took place in 1979 and 1980, 

during Louis Raffaelli s term as District Attorney. ”[T]he figures speak eloquently!”16 

In those 17 cases, the Raffaelli prosecutors removed 76 of 84 qualified black jurors. 

Tr. Ex. A-01, Pet. RE Tab K. Of a total o f204 jurors who served on these juries, only

From 1975 through 1978, the elected District Attorney was Lynn Cooksey, Mr. Banks’s 
trial counsel. In 1979 and 1980, the District Attorney was Louis Raffaelli. Mr. Raffaelli 
prosecuted Mr. Banks with assistant James Elliott.

16 Black v. Curb, 464 F.2d 165, 168 (5th Cir. 1972).

103



6 were black. Id. In fifteen of the seventeen juries, the jury was either all-white or 

contained only one black juror. Id.

The data from 1975 through 1978 showed similar exclusion of minority jurors. 

While 84 African Americans made up 13% the pre-peremptory pool, 79 or 94% were 

struck peremptorily by the state. Tr. Ex. A-01, Table 2; Pet. RE Tab L. Of the 240 

jurors who sat on juries, only 5 were black. Id. These data clearly establish a strong 

inference that Bowie County prosecutors intentionally struck African-American 

jurors on the basis o f their race, see, e.g., Willis v. Zant, 720 F.2d at 1220, Horton v. 

Zant, 941 F.2d 1449, 1455 (11th Cir. 1991).

ii. Expert Analysis ofthese Statistical Data Finds Strong Proof o f 
Intentional and Systematic Discrimination Against Black Jurors

Dr. Kent L. Tedm, chairman of the University of Houston political science 

department and qualified by the state habeas court as an expert in the statistical 

analysis of social data,17 presented unchallenged statistical proof that Bowie County 

prosecutors had systematically and intentionally excluded black jurors from service 

for years, and continued to do so at the time of Mr. Banks’s trial.

Reviewing the cases tried after January 1, 1979, Dr. Tedin employed four 

different statistical models to analyze the prosecution’s use of peremptory strikes.

17 SH3 at 181.

104



These trials represent approximately 75% of all criminal cases tried during that 

period. Tr. Ex. A-01 at 3. In the first group, each statistical test was based on the total 

number of Bowie County citizens in the “pre-peremptory pool,” namely those 

individuals eligible to serve after the conclusion of for-cause challenges but before 

the exercise of any peremptory strikes. Id. at 13, 14-15. He found that the proportion 

of Blacks on felony juries during this period was much smaller than either the 

percentage of Blacks, Black adults or Black registered voters in Bowie County, and 

that such a great difference would occur by chance alone fewer than 1 in 10 million 

times. Id. at 9-10. Dr. Tedin concluded that “the reason there are so few Blacks on the 

juries compared to Blacks in the population is that blacks are struck by the State with 

much greater frequency than non-Blacks... We can be certain that the 

disproportionately large percentage of strikes of Blacks did not occur by chance. 

There was some cause, other than chance, that explains this highly skewed 

distribution.” Id. at 8.

In the first test, Dr. Tedin compared the percentage of Black jurors with the 

percentage of Bowie County residents who are Black, according to the Bureau of the 

Census. Although 21.5% of all Bowie County residents were Black in 1980, only 

3.0% of all jurors were Black during the relevant period. The likelihood that this 

difference in representation (18.5%) would occur by chance alone is fewer than

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1/10(50), or, in other words, fewer than 1 in 10 million times. Id. at 4. Based on this

test, Dr. Tedin concluded that “these differences could not have arisen by chance.” 

Id.

To challenge these results, Dr. Tedin hypothesized that the disparity between 

Black citizens and Black jurors might be so great because jurors are drawn from 

registered voting lists, which may represent Blacks at a rate lower than that in the 

general population. By comparing the 19.5% of Blacks in the adult population who 

are eligible for voter registration with 3.0% of Blacks who served on juries, Dr. Tedin 

found that the likelihood this disparity 16.5% would occur by chance alone is fewer 

than 1/10(40), or far fewer than one in 10 million times. Id. at 4-5,25. Based on these 

first two tests, Dr. Tedin concluded “that the low percentage of Blacks on the juries

during the time considered almost certainly could not have arisen by chance.” Id. at

6.

The third test compared the percentage of Blacks in the pre-peremptory strike 

pool removed due to a strike by the state with the percentage of non-Blacks in the 

pre-peremptory strike pool peremptorily removed by the state. If peremptory strikes 

had been exercised by chance, one would expect that the same percentage of Blacks 

and non-Blacks would have been struck.18 In reality, the state struck 90.5% of all

18 Dr. Tedin calculated that figure would be 31% for each group. Id. at 6.

106



Blacks and only 18.5% of all non-Blacks, a disparity of 72%. Id. at 6-7. A two-sample

difference in proportions test revealed that the likelihood of this disparity occurring

by chance alone is fewer than 1/10(70), or fewer than 1 in 10 million times. Dr. Tedin

concludes that the likelihood that this disparity occurred by chance is:

similar to the same individual winning the lottery in two 
consecutive months, or to Tiger Woods scoring three 
holes-in-one in three consecutive par-3 holes in golf. Thus, 
it is quite clear that blacks in the pre-peremptory pool are 
being struck by the State much more frequently than one 
would expect by chance. In other words, if one is black one 
is five times more likely to be struck than if one is not 
black. This difference cannot be explained by chance.

Id. at 7.

In Test 4, Dr. Tedin investigated whether the far smaller representation of 

Blacks in juries than in the pre-peremptory pool could have occurred by chance. 

Although there were 17% Blacks in the pre-peremptory pool, only 3% ultimately 

served on juries, a disparity of 14%. A difference in proportions test assessed the 

likelihood of this differential occurring by chance alone at fewer than 1/10(20), or 

fewer than 1 in 10 million times. Id. at 7. The likelihood that the State would strike 

94% of Blacks in the pre-peremptory pool while striking only 18.5% of non-Blacks, 

a disparity of 75.5%, by chance alone is fewer than 1/10(90), again fewer than 1 in 10 

million times. Id. at 10.

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In order to give the state the benefit of the doubt, Dr. Tedin recalibrated each 

of these tests under the assumption that each of the persons of unknown race in the 

pre-peremptory strike pool (30) or struck by the state (6) was non-Black. Id. at 8. 

However, even this assumption favoring the state had only a negligible effect on the 

test statistics, and absolutely “no effect on the conclusion” of any of the four tests. Id. 

at 9. Even if all of the persons whose race could not be identified were not Black, the 

likelihood that there would be such a low incidence of Black jury service by chance 

alone is still less than 1 in 10 million times. Id. Discrimination was no less prevalent 

during the prior Cooksey administration; the results of statistics based on juries struck 

between 1975 and 1980 are exactly the same. Id. at 9-11.

Based on these comprehensive statistical tests, Dr. Tedin concluded, “it is quite 

clear that something systematic is operating in the state’s use of peremptory strikes 

to remove blacks from juries in Bowie County... It is my opinion that the very small 

number of blacks on the Bowie County juries for the time period in question could

only have arisen through the exercise of strikes by the State based on a racially biased 

criterion.” Id. at 12.

Hi. Race-Coding o f Bowie County Prosecutors ’ Venire Sheets.

108



During the relevant period, Bowie County prosecutors routinely placed race­

coding markers-for example, “B,” “C,” “N,” “black” or “B-l-k”-by the names of 

Blacks on venire lists. The prosecutors did not place any race-identification markers 

next to the names of Whites. SHTr. at 58-61, 788. Charles Lee Attaway, a former 

Assistant District Attorney in Bowie County, testified that prosecutors routinely used 

these codes to note of Black jurors, id. at 385-86,396. Mr. Elliott stipulated that race­

coding was “a generally accepted or generally used practice.” Id. at 12-14. This 

practice of race-coding, combined with evidence showing racial disparity, clearly 

demonstrates intentional racial discrimination. Cf Whitsey v. State, 796 S.W.2d 707, 

714-16 (Tex.Crim.App. 1989) (finding prima facie case of Batson violation where 

blacks allegedly struck for race-neutral reasons, but only information on jury venire 

sheets denoted their race by the letter “B”); EEOC v. Detroit Edison, 515 F.2d 301, 

313 (6th Cir. 1975) (stating “use of racial coding of applications ... found to 

discriminate against Black applicants”); Hampton v. Dillard Dept. Stores, Inc., 18 

F.Supp.2d 1256,1273 (D.Kan., 1998) (approving use of racially coded incident logs 

as evidence that store had corporate policy targeting African-American shoppers for 

security purposes); EEOC v. Randolph, 622 F.Supp. 1281, 1293 (N.D.I11. 1985) 

(finding racial bias in hiring where employers could not explain obvious “race- 

coding” done by placing the letter “B” on job applications of Blacks). None of the

m 109



individuals with such markings next to their names were seated on juries. This was

primarily a result of the prosecution’s exercise of peremptory strikes. Id. at 788.

iv. The Attorney Evidence Demonstrates the State’s Pattern and 
Practice o f Systematically Excluding Black Jurors.

Six Bowie County attorneys, including a former prosecutor, testified that 

during the six-year period from 1975 through 1980, local prosecutors used 

peremptory challenges to systematically exclude black citizens from jury service. The 

selection process was open during those years, enabling defense attorneys waiting for 

other matters to observe criminal juries being struck. See, e.g., SHTR.3 at 784-85. 

Based on their own experience in choosing juries as well as their observations of 

other cases, these attorneys observed an unmistakable pattern of discriminatory 

prosecution strikes. Mr. Cooksey was aware of this practice. When Mr. Banks wrote 

him a note during jury selection stating that “we need[] black[s],” Cooksey responded 

candidly, “State will strike all blacks.” SHTr.3 Pet. Ex. 29.

Mark M. Lesher, a twenty-five year member of the Texas Bar and a former 

Assistant District Attorney under Mr. Cooksey, testified that while he served as an 

Assistant District Attorney under Mr. Cooksey from 1973-1975, the office had a 

“policy” that “all blacks would be stricken” from both misdemeanor and felony juries, 

SHTr.3 at 437, particularly when the defendant was black. Id. at 438. Lesher further

110



testified that he observed no change in this discriminatory practice when Louis 

Raffaelli replaced Lynn Cooksey as District Attorney in 1979. Id. at 442. From the 

time Lesher went into private practice as a defense attorney in 1975 through 1980, “it 

was the obvious practice of the District Attorney’s office to use its peremptory strikes 

to remove otherwise qualified blacks from the jury venire. As a result, all white juries 

in criminal cases was overwhelmingly the rule.” SHTr.3 Pet. Ex. 11. Because of this 

practice, Lesher felt that “if I represented a black defendant, I would never have a 

black on my jury,” SHTr.3 at 441, and that other local defense attorneys felt the same 

way. Id. In fact, Lesher himself began to record the races of black jurors in his venire 

sheet as a reminder not to strike them “because I would know fairly certain that those 

people would be stricken by the D.A.’s office.” SHTr.3 at 453. According to Lesher, 

this open pattern of discrimination “was simply the way things were done in the 

criminal justice system in Bowie County, and was the accepted practice at that time.” 

SHTr.3 Pet. Ex. 11.

Jim Hooper defended approximately 100 criminal cases in Bowie County in his 

thirty years as a member of the Texas Bar. SHTr.3 at 351-52. Hooper testified that 

from 1969 through 1979, prosecutors “probably [had] a tendency to strike more black 

veniremen. Id. at 354. It was so uncommon for black jurors to survive prosecutors’ 

peremptory strikes that Hooper stated, “as a rule, I had not recalled a black, especially

i l l



two or three, on a jury.” Id. at 356. This practice was so “routine” that Hooper revised 

his voir dire in an unsuccessful effort to change the prosecutor’s pattern of strikes, 

telling jurors that he anticipated that the jury would be all white, and appealing to 

them not to judge his client in a racially prejudiced manner, Id. at 365.

Sherman A. Kusin has practiced criminal law in Texarkana since 1965. Id. at 

412. Kusin cannot remember trying a murder case in Bowie County in which a black 

person was allowed to sit on the jury. Every otherwise qualified black venireperson 

was stricken by the State through the use of peremptory challenges.” SHTr.3 Pet. Ex. 

14. In at least one case he tried in Bowie County after Louis Raffaelli took over as 

District Attorney and before September 20,1980, when Mr. Banks was tried, the state 

exercised peremptory challenges to remove three qualified black venirepersons, 

leaving “no blacks on the jury.” SHTr.3 at 430-31.

James E. Davis has practiced criminal law in Texarkana since 1971. Id. at 783. 

Based on at least twenty-four of his own trials as well as his observations of jury 

selection in other Bowie County criminal trials, Davis testified that between 1975 and 

1980 the state “generally always struck black people . . .  regardless of the race of the 

defendant or the victim or whatever.” Id. at 785. Prosecutors were open and 

nonchalant about excluding black jurors. Davis remembers observing then District 

Attorney Cooksey use the letter “N” as a racial code to identify black jurors on his

112



venire sheets to facilitate his use of peremptory strikes against them. Id. at 788. One 

indication of a potentially race-based strike, Davis testified, was that rather than 

asking open-ended questions, a prosecutor would simply “ask, you know, closed 

questions where you can bind them into a position and send them on their merry 

way.” Id. at 806. Any changes to the District Attorney’s office policy of 

systematically excluding black jurors was “much more recent history.” Id. at 791.

Thomas Newman is a defense attorney who tried up to 15 cases in Bowie 

County between 1966 and 1985, of which four or five were murder trials. SHTr.3 Pet. 

Ex. 13. Based on this experience as well as his observations of jury selection in other 

local cases during this time period, Newman stated that, “[t]he striking of every 

otherwise qualified black venireperson by the district attorney’s office through 

peremptory challenges in cases where the defendant was black was simply the 

unwritten rule governing such trials in Bowie County, Texas.” Id. Furthermore, 

[cjriminal defense lawyers knew it was going to happen in every such case and

simply did not think much about it because there was nothing we thought we could 

do about it.” Id.

Don Cooksey, Lynn Cookey’s brother, has practiced law in Bowie County 

since 1974. SHTr.3 at 645. Cooksey observed that during that period, “on most

113

\



occasions” the State’s use of peremptory strikes against black jurors resulted in all- 

white juries. Id. at 647.

Finally, Clyde Lee, Mr. Banks’s attorney on direct appeal, corroborated the

prosecution’s habitual discriminatory use of peremptory strikes. In August 1980, “it

was a pretty common rule that you would not have black members of the jury seated.

This is particularly true if you had black defendants. Probably up until the mid-late

’80’s, that was a general rule of thumb.” SHTr.3 at 283. Lee testified further that this

longstanding practice of racial discrimination infected the Banks trial:

[I]n this particular trial there had been a lot of racially 
highlighted material outside of the courtroom, both in the 
white community and in the black community, because it 
was a black on white crime[... T]he prosecutor’s office 
was headed by a person that I felt like participated in race 
thinking on a regular basis. The defense attorney had made 
several comments that I knew and in the past-after Banks, 
made several comments that I knew were racially oriented 
comments, so this whole environment had some race 
thinking in it. And notwithstanding the efforts on the other 
side, there were race thinking people involved in the 
defense and in the support Mr. Banks.. . .  The bottom line 
is, is that there have been racial comments made by some 
of the characters in this process that allows me to know 
that they conduct themselves in a manner of thinking 
racially. They do it. Whether they know they do it or not, 
they do it.

114

f



Id. at 339, 340. At the time of Mr. Banks’s trial in 1980, Lee asserts, “the 

district attorney s office had an ironclad policy of using its peremptory strikes to 

remove all black prospective jurors from the jury pool.” SHTr.3 Pet. Ex. at 16.

Viewed as a whole, this evidence shows the existence of a deliberate and 

effective policy within the Bowie County District Attorneys’ office to exclude blacks 

from felony jury service between 1975-1980. See, e.g., Jackson v. Herring, 42 F.3d 

1350 (11 th Cir. 1995) (finding Swain violation based upon testimony of three defense 

attorneys, a former prosecutor, and statistics proving that Blacks were 2 1/2 times 

more likely to be struck than Whites and 65-70% of juries underrepresented Black 

citizens). As the Supreme Court recognized when reversing a conviction due to 

discrimination in grand jury selection, “[cjhance and accident alone could hardly have 

brought about the . . .  service of so few negroes from among the thousands shown by 

the undisputed evidence to possess the legal qualifications for jury service. Smith v. 

Texas, 311 U.S. 128, 131 (1940).

c. The Director’s Pretextual Explanations Failed to Rebut 
the Strong Showing of Purposeful Discrimination

The Director failed to meet his burden of rebutting this strong prima facie case 

of intentional discrimination. The lower courts have held that he may do so in two 

ways, he may make ‘a showing that racially neutral procedures have produced the

115



[historic and systematic] disparity,’” Willis v. Zant, 720 F.2d at 1220, quoting United 

States v. Perez-Hemandez, 672 F.2d 1380, 1387 (11th Cir. 1982), or show “neutral 

reasons for the striking of all the blacks in petitioner’s trial itself.” 720 F.2d at 1221; 

see Evans v. Cabana, 821 F.2d 1065,1068 (5th Cir. 1987).19 In either case, the court 

must keep in mind that affirmations of good faith ... are insufficient to dispel a 

prima facie case of systematic exclusion, [citation omitted],” and “a mere denial of 

discriminatory intent will not suffice.” Id. Moreover, because a prima facie showing 

under Swain requires exceedingly strong proof of discrimination, “testimony from the 

alleged discriminators should be viewed with a great deal of judicial scrutiny.” Id.

The Director has made no attempt to introduce some type of reliable evidence 

that Dr. [Tedin s] data are flawed. In fact, the [Director] did not introduce any 

evidence at all” to undermine the weight of this historical proof of discrimination. 

Miller v. Lockhart, 65 F.3d 676,681 (8th Cir. 1995). When the discriminatory effect 

of a practice is as stark as it is here, the inference that the discrimination was 

intentional is even stronger. See, e.g., Village o f Arlington Heights v. Metropolitan 

Housing Development Corp., 429 U.S. 252, 266 (1977); Washington v. Davis, 426

19 The Supreme Court has never held that once a petitioner establishes the arduous Swain 
showing that such a powerful showing o f discrimination can be rebutted by the mere assertion of 
race neutral reasons in an individual case. Mr. Banks believes that such a rebuttal, while it can 
defeat a prima facie  showing based upon only the striking behavior in one case, is insufficient to 
overcome a Swain showing.

116



U.S. 229, 241-42 (1976). In lieu of any evidence tending to disprove this marked 

pattern of discriminatory peremptory challenges, the Director cannot rebut the prima 

facie case of discrimination. Mr. Banks submits that no explanation for striking all 

four qualified black jurors in Mr. Banks’s venire can rebut the strong inference raised 

by these statistics. See International Brotherhood o f Teamsters v. United States, 431 

U.S. 324, 342 n.23 (1977) (finding that corporation could not rebut inference of 

employment discrimination raised by statistical under-representation of minorities 

due to the unique persuasiveness of “the inexorable zero”); Hazelwood School Dist.

v. United States, 433 U.S. 299, 307-08 (1977) (stating that “[w]here gross statistical 

disparities can be shown, they alone may in a proper case constitute prima facie proof 

of a pattern or practice of discrimination”); Morrow v. Crisler, 41 F.2d 1053, 1055 

(5th Cir. 1974) (finding that when, in a highway patrol force of 500, only 6 of 91 

newly-hired officers were Black, the “figures alone negate the State's argument that 

its present practices are nondiscriminatory” ).

The Director sought to rebut this strong showing of historic and purposeful 

discrimination by showing that legitimate race neutral reasons explain the peremptory 

discharge of four African-American jurors. But Mr. Elliott’s testimony fails to do 

that. SHTr.3 at 894. First, the record shows that Mr. Elliott had participated in two 

trials prior to Mr. Banks’. Although a total of thirteen Black jurors remained in the

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pre-peremptory strike pool in Mr. Banks’s case, and two other ones that Mr. Elliott 

tried prior to this case, none of those qualified minority jurors served; each was 

removed by the prosecution’s peremptory strike ensuring that each of the three juries 

was all-white. Id. at 894-95, 912. Moreover, Elliott had observed the seating of six 

additional juries prior to Mr. Banks’s trial. In those cases, prosecutors struck a total 

of 23 of 27 Black jurors in the pre-peremptory pools. Id. at 915. Elliott had no choice 

but to agree that the total numbers of jurors who served in those nine trials-127 white 

jurors and only 3 Black jurors-was a “striking disparity.” Id. at 916. In addition, Mr. 

Elliott acknowledged this historical disparity was not the result of race-neutral 

decision-making: “Yes, race does come in.” Id. at 919. Elliott even testified that this 

practice was so entrenched that “we took literally some razzing about placing Black 

jurors in criminal cases from the defense attorneys. They laughed at us about it. I 

mean it was like we were picking people that they would assume would decide for 

them. I mean that’s why that stands out,... [t]he first time Louis Raffaelli put Blacks 

on a murder case, it shocked him.” Id. at 906.

Although Elliott initially resisted articulating reasons for the state’s strikes of 

all four Black jurors from Mr. Banks’s venire, id. at 927, 929, he ultimately did 

supply an explanation regarding each juror. According to Elliott, Pauline Harris 

Haynes was struck because she testified that her objectivity would not be affected by

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having taught the victim in grade school, or by the fact that she had funeral policies 

with the Banks family. Id. at 929-30. The state struck Modester Dean due to her 

hesitation to impose the death penalty. Id. at 922, 923, 926. Elliott also testified that 

Cherry Ann Ivy was struck because the prosecutors “d[id]n’t believe that she was a 

strong as we would like for a juror to be with regard to the death penalty,” in addition 

to “appearing] to be somewhat confused by this whole process.” Id. at 926.

Finally, Elliott testified that although Calvin Woods, the fourth Black juror, 

was “pro-death penalty,” he was struck because he answered “in a perfunctory way;” 

prosecutors felt they could not predict how he would process the evidence. Id. at 931. 

However, despite claiming that he wanted to “begin a dialogue with” Calvin Woods, 

id. at 936, Elliott did not ask open-ended questions that would elicit narrative 

responses. Instead, Elliot asked yes-no questions and simply lectured Mr. Woods on 

the law. See, e.g., 5SR at 1498-150020 As defense attorney Davis testified, a typical 

voir dire strategy for lawyers seeking an excuse to strike jurors is, rather than asking 

open-ended questions, simply to “ask . . .  closed questions where you can bind them

The following excerpts are indicative o f Elliot’s closed-ended questions: “Now, having that in 
mind, do you have any particular disagreement with the law o f capital murder as I have set it out to 
you? . . . W e’ve got a murder, and we’ve got murder committed during the course o f a robbery. 
Okay? . . .  If an individual is found guilty o f capital murder in the State o f  Texas, there can be only 
one o f two things done with him, either life imprisonment or imposition o f the death penalty. Are 
you with me on this? . . .  We’re covering a lot o f law. . . .  I guarantee you’re getting a good lecture, 
more than any o f us got in a whole semester in law school, so I’ll stop every now and then if  I’m not 
making myself clear. Just let me know and we’ll catch up.”). 5SR at 1498-1500.

119



into a position and send them on their merry way.” SHTr.3 at 806. Elliott admitted in 

the state habeas hearing that there is a difference between this kind of question and 

one that asks, “[d]o you have any feelings about this,” namely that “one is a closed- 

ended question and one is an open-end question.” SHTr.3 at 939. Because Elliott did 

not frame questions in such a manner as to elicit thoughtful responses from Calvin 

Woods, Elliott’s assertion that Woods was struck for giving perfunctory answers is 

simply a pretext for discrimination. In fact, Elliott’s voir dire of Woods itself was 

perfunctory,” which courts consider to be evidence of pretextual strikes. See Ford 

v. Lockhart, 861 F. Supp. 1447 (E.D.Ark. 1994), aff’d, Ford v. Norris, 67 F.3d 162 

(8th Cir. 1995) (construing prosecutor’s “perfunctory” voir dire of struck African-

American jurors as evidence that the “purposes of the peremptory challenge are being 

perverted.”)

Further proof that Elliott s perfunctory answers” explanation was pretextual 

is found in the seating of Joe Allen Bums, a white male, who gave a series of one- 

word answers during voir dire. Even under the less demanding evidentiary burden of 

proving discriminatory use of peremptory challenges under Batson, courts hold that 

prosecutors ’ explanations are pretextual when used to strike African-American jurors 

but not similarly situated White jurors. See, e.g., Turner v. Marshall, 121 F.3d 1248 

(9th Cir. 1997); Emerson v. State, 851 S. W.2d 269,274 (Tex.Crim.App. 1993). This

120



analysis is appropriate because “[tjhere will seldom be any evidence that the claimant 

can introduce-beyond arguing that ... similar claims can be made about non- 

excluded jurors who are not minorities.” U.S. v. Bentley-Smith, 2 F.3d 1368, 1374 

(5th Cir. 1993). In sum, Elliott’s mere “protestations” are wholly insufficient to rebut 

the weight of historical statistics.

Given the irrefutable evidence that the Bowie County prosecutors had engaged 

in discriminatory jury selection practices for years, Mr. Elliott’s wanting explanation 

for striking Black jurors does not rebut the inference that this practice continued 

unabated in the Banks trial in violation of Swain.

d. This Court Need Not Defer to the State Court’s Ruling

The state court that heard the Swain claim did not apply a correct legal 

standard. This irreparably tainted the reliability of its fact-finding. Although Swain 

unquestionably held that historical proof of prosecutors’ discriminatory use of 

peremptory challenges is not only relevant, but crucial, to prove a violation, see, 380 

U.S. at 223; Willis v. Zant, 720 F.2d at 1220, the state habeas court refused to 

consider any evidence from 1975 through 1978 because the present District Attorney 

was not in office. Pet. RE Tab D at Tff 24-26. Moreover, although the court found that 

Mr. Banks had stated aprimafacie case of discrimination, id. at 22,27, it ignored 

case law holding that statistics reflecting an unmistakable pattern of racial disparity

121



were sufficient to raise an inference of discrimination so as to shift the burden of 

proof to the prosecution, see, e.g., Willis v. Zant, 720 F.2d at 1220; Horton v. Zant, 

941 F.2dat 1455. Instead, the court “proceed[ed] bearing in mind regardless of... the 

strengths or weaknesses of statistics, statistics do not tell what is occurring in a 

specific case. Id. at If 34. Instead of shifting the burden to the prosecutor to articulate 

race-neutral reasons for his strikes after finding aprima facie case, see Willis v. Zant, 

720 F.2d at 1220, the court faulted Mr. Banks for the fact that “the record is silent as 

to Mr. Raffaelli’s reasoning” for selecting or excusing jurors. Id. at ̂  43. Findings of 

fact that are based upon an incorrect legal standard lose the insulation of clearly 

erroneous review, and must be considered de novo. See Pavlides v. Galveston Yacht 

Basin, 727 F.2d 330, 339 n.16 (5th Cir.1984).

e. This Claim is Not Procedurally Barred

The Director argued below, and the District Court agreed, that review of this 

claim is barred because of trial counsel’s failure to timely raise the claim at trial. Mr. 

Banks submits that there is no adequate and independent state ground barring merits 

review of this claim. A review of its procedural history shows the claim, while not 

raised at trial, was thereafter raised and rejected on its merits, and that the Director 

waived its waiver defense by not only not raising that defense timely but by 

affirmatively electing to resolve the claim on the merits.

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i. Procedural History o f  Claim

Mr. Banks agrees with the District Court that trial counsel, despite Mr. Banks’s 

concern over the racial composition of the jury, made no Swain objection at trial. Nor 

was a Swain claim raised on direct appeal. However, in his first state habeas 

application Mr. Banks pleaded a claim based upon Swain. See Petition for Post- 

Conviction Writ of Habeas corpus, In Re Delma Banks, Jr., In the District Court in 

and for Bowie County, Texas, No. 13,568-01, paragraph H, filed December 21, 

1983.21 In its Answer, the state made no assertion that this claim was not timely 

raised, and moved the court to dismiss the entire petition because the claim, as well 

as the others, had no merit. See Respondent’s Original Answer, filed January 2,1984. 

In its Findings of Fact and Conclusions of Law, the Court did not find that the claim 

was not timely advanced, and instead treated it as properly brought and denied the 

claim on its merits.22 Recommendation of Denial of Writ of Habeas Corpus and 

Findings of Fact and Conclusions of Law, filed January 2, 1984 at p.2.

Mr. Banks appealed this denial to the Texas Court of Criminal Appeals. Before 

that court, the Director made no argument that Mr. Banks’s Swain claim should be

Mr. Banks alleged that he, a person of the Negro race, was unduly and 
unconstitutionally prejudiced by the sustemtaic (sic) exclusion, by the State o f  Negro veniremen 
m contravention o f his rights to due process and equal protection of law.”

'I? e Court found 35 foUows: “The Court finds that there was no systematic exclusion by 
the State o f any Black veniremen or jurors in contravention o f Petitioner’s rights to due process 
and equal protection o f law.”



rejected on waiver or default grounds. That court denied issuance of the writ “based

up the findings of the trial court. . . ” Ex Parte Delma Banks, Jr., Writ No. 13,568-01 

February 29, 1984.

Mr. Banks again asserted this claim in his third state habeas application, filed 

on January 13,1992. See Application for Post-Conviction Writ of Habeas Corpus, Ex 

Parte Delma Banks, Jr., No. 80-F-86-102-C, In the 102nd Judicial District Court of 

Bowie County, Texas. Over the next nine months he repeatedly supplemented his 

assertions with proffered expert and lay evidence in support of the claim. In October, 

the Director filed a thirty-four page answer and affixed exhibits. The Director made 

no assertion that the claim was not properly before the court. Instead, he argued that 

the evidence Mr. Banks proffered was not credible and urged the court to conclude 

“this claim for relief should be denied” on its merits.23 The trial court agreed with the 

District Attorney and concluded, after briefly reviewing Mr. Banks’s proffered 

evidence, that he had failed to prove his case. Pet. RE Tab A at 2-3.

Mr. Banks again appealed to the Court of Criminal Appeals. The Director 

urged denial of the application, and for the first time, asserted in the alternative that 

this claim could not be reviewed on the merits because trial counsel had not lodged

23 While the Director advanced no procedural argument with regard to the Swain claim, 
he did plead waiver and default arguments with regard to several other claims.



a timely objection. That Court granted a stay of execution, and remanded the case for 

an evidentiary hearing on, inter alia, this claim, and asked the trial court to make

findings on a number of questions, including whether trial counsel’s failure to object 

defaulted the claim. See Pet. RE Tabs B and C.

After the evidentiary hearing, that court found that no Swain claim had been 

made in the trial court, and that trial counsel knew of the claim but chose not to raise 

it because he did not believe that Mr Raffaelli’s practices showed a Swain violation. 

Pet. RE Tab D at 3-8. That court also reached the merits, and unlike before, 

concluded that Mr. Banks’s evidence showed a prima facie case of systematic 

exclusion, but found that the four African-American jurors peremptorily struck from 

Mr. Banks’s jury were removed for non-racial reasons. Id. On appeal, the Court of 

Criminal Appeals denied habeas relief for the reasons listed in the trial judge’s 

recommendations. Pet. RE Tab E.

li. There is No Firm Rule Requiring Swain Claims To Be 
Asserted At Trial

In order to constitute an adequate and independent ground sufficient to support 

a finding of procedural default, a state rule must be "firmly established and regularly 

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

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

9  125

1



Mississippi, 486 U.S. 578 (1988); Spencer v. Kemp, 781 F.2d 1458, 1470-71 (11th 

Cir. 1986) (en banc) (holding that “novel or sporadically applied state procedural 

grounds, as well as retroactively applied state procedural rules, are “inadequate to 

preclude federal review of federal constitutional claims”). The relevant inquiry is 

whether the contemporaneous objection rule "is strictly or regularly applied 

evenhandedly to the vast majority of similar claims," Amos v. Scott, 61 F.3d 333,339 

(5th Cir. 1995), or "identical claims." Id. at 341. Although Texas courts have 

regularly applied this rule to other types of claims,24 they have not strictly and 

regularly applied the contemporaneous objection rule to Swain claims. For example, 

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

the merits of a Swain claim in a successive state habeas proceeding, although the

4 7 ? ®  f T f S Z ? * * * *  - 16 ^  bCen heW t0 apply t0 Claims under Batson v- Kentucky,
990 F 2d n \ l T r e'8̂  *  19 R3d 959 (5th Cin 1994* Harris v- Colli« .90 F.2d 185, 187 (5th Cir. 1993); see also Wilkerson v. Collins, 950 F.2d 1054 1063 (5th
r l ' 19,92)' ^ ndrews v‘ Collins• 21 F 3d 612, 621 (5th Cir. 1994), the Fifth Circuit barred
federal consideration o f a Batson claim not objected to at trial despite the fact that the state
habeas court had conducted evidentiary hearing to determine its merits. Andrews relied in part on
Jones v. Butler, 864 F.2d 348, 369-70 (5th Cir. 1991), in which the court stressed the importance
o f a contemporane° us objection for Batson claims, which require trial courts to evaluate
credibility. Id. However, these cases are distinguishable from those raising Swain claims While
Batson challenges are mounted solely against prosecutors’ use o f  peremptory strikes in individual
trials and depend heavily on the contemporaneous determination o f the prosecutor's credibility
when explaining an apparently discriminatory pattern o f strikes, Swain claims look primarily
upon p™fec^to^’ historical, systematic, and continued discriminatory jury-selection practices.

the Fifth Circuit has applied the contemporaneous objection rule to bar other kinds of
claims, as well. See, e.g., Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997) (applying rule to
unobjected-to introduction o f prior convictions and citing state cases).

126

i



defendant failed to show he made a timely objection at trial. Id. at 135 n.5. In 

Chambers v. State, 568 S.W.2d 313 (Tex.Crim.App. 1978), the court also chose to 

address the merits of a systematic exclusion” of Blacks where it was unclear whether 

the issue was preserved. Trial counsel made an oral motion to quash the panel on the 

ground of systematic exclusion at the conclusion of the voir dire examination but 

made no allegation regarding this or any other racial issue in the motion for new trial. 

Assuming the contention is properly before us for review,” the court addressed the 

issue, on the merits. Id.

It is clear that Texas has no firm rule that forecloses post-conviction review of 

a Swain claim where there was no objection at trial. Additionally, the Supreme Court 

has never held that its procedural default jurisprudence that normally bars federal 

review if the defendant failed to comply with a reasonable trial court rule applies to 

Swain claims. A Swain claim is unlike any other a defendant may assert in a trial 

proceeding. It requires the collection of extensive historically material, often which 

is exceedingly hard to come by. Indeed, the main reason why the Court abandoned 

Swain for Batson was the overwhelming judgment of history that the Swain standard 

imposed a burden of production that was rarely if ever possible to meet despite the 

fact that the underlying problem- systematic exclusion of minority jurors -  continued 

unabated in some jurisdictions. Thus, while claims based upon facts that are



reasonably available can be waived where counsel fails to make a timely objection,

the Court itself recognized in Batson that the facts necessary for a Swain claim were

not reasonably available. Thus, a defendant’s failure to raise such a claim at trial

cannot alone justify a finding of waiver of the defendant’s important equal protection 

right.

For these reasons alone, no adequate and independent state-law-ground bars 

consideration of Mr. Banks’s Swain claim in this proceeding.

iv. The Director Repeatedly Waived This Defense

The behavior of the Director’s legal counsel in state court further shows that 

he did not believe that the absence of a trial objection precluded merits review of the 

claim, and that he belatedly asserted the waiver defense only after he had repeatedly 

acquiesced in the merits review of the claim and only when he perceived that Mr. 

Banks’s claim had sufficient merit.

As shown above, Mr. Banks initially raised his Swain claim in his first state 

habeas proceedings. Surely if a firm rule precluded such claims, the Bowie County 

District Attorney’s office would have asserted it on the Director’s behalf. It did not. 

Its answer raised no procedural defense. Instead, it squarely urged the court to deny 

the petition after review of the merits of the claims. Nor did the court determine that 

the claim was untimely advanced. And again on the appeal in that proceeding, the

128

v



Director made no claim of default, and acquiesced in a merits denial. And again, in 

the third state post-conviction proceeding, and even after Mr. Banks had proffered 

much evidence in support of this claim, Mr. Elliott, then the Director’s counsel, 

asserted no procedural defense to this claim, and instead urged its denial on the 

merits. He finally asserted that trial counsel’s failure to object constituted a defense 

to this claim in his appeal papers in this proceeding.

If the Director had a valid defense based upon waiver, he surely waived that 

defense, not only by not timely asserting it throughout the first habeas proceeding and 

again in the third trial court proceedings, but by urging a merits review of the claim. 

A party cannot choose one line of attack, and then, much later, add a new one when 

it appears the first one might fail.

The Supreme Court has noted that the state waives a procedural default defense 

by failing to invoke it in a timely manner. In Trest v. Cain, 522 U.S. 87, 91 (1997), 

the Court held that “procedural default is normally a ‘defense’ that the State is 

‘obligated to raise’ and ‘presence]’ if it is not to ‘lose the right to assert the defense 

thereafter,”’ citing Gray v. Netherland, 518 U.S. 152, 153 (1996). See also Engle v. 

Isaac, 456 U.S. 107, 124 n.26 (1982), citing Estelle v. Smith, 451 U.S. 454, 468, n. 

12 (1981); and Jenkins v. Anderson, 447 U.S. 231, 234, n. 1 (1980) (“A State’s plea 

of default may come too late to bar consideration of the prisoner’s constitutional

*

129



claim”). In the closely analogous exhaustion context, the Court explained its 

reluctance to adopt rules that allow a party to withhold raising a defense until after 

the main event even if the state's failure to raise the claim is inadvertent rather than 

strategic: "it seems unwise to adopt a rule that would permit, and might even 

encourage, the State to seek a favorable ruling on the merits in the district court while 

holding the exhaustion defense in reserve for use on appeal if necessary. If the habeas 

petition is meritorious, such a rule would prolong the prisoner's confinement for no

other reason than the State's postponement of the [ ] defense___ ” Granberry v.

Greer, 481 U.S. 129, 132 (1987).

This Court follows this approach. In Fisher v. Texas, 169 F.3d 295 (5th Cir. 

1999), the court declined to find the habeas petitioner’s claims barred because the 

“state waive[d] a procedural bar defense by failing to raise the defense in the district 

court.” 169 F.3d at 301. See also Emery v. Johnson, 139 F.3d 191, 195 n.4 (5th Cir. 

1997), citing United States v. Marcello, 876 F.2d 1147, 1153 (5th Cir. 1989) (stating 

that if the state does not plead procedural bar in the district court, it is waived"); 

Bennett v. Collins, 852 F.Supp. 570, 576 n.l 1 (E.D.Tex. 1994) (stating that "in this 

case, respondent is complaining about behavior on the part of the applicant which is 

similar to its own behavior... it would be nonsensical to hold applicant, an indigent 

prisoner on death row, with court-appointed trial counsel, to a higher standard than

130

4



that to which we hold respondent, the State of Texas, with all of its intellectual and 

financial resources."); Cooperv. State, 791 S.W.2d80(Tex.Crim.App. 1990)(stating 

that the state’s obligation is to bring to the appellate court’s attention the fact that 

the appellant was dilatory in preserving error for appellate review.”); Tallant v. State, 

742 S.W.2d 292, 294 (Tex.Crim.App. 1987) (en banc) (“Just as an appellant must 

properly present points of error to the court of appeals for its decision in order to 

complain of an adverse determination by way of ground for review, we hold that the 

State must call to the attention of the court of appeals in orderly and timely fashion 

that an alleged error was not preserved.”). Because the State must observe the same 

procedural rules as Mr. Banks, its failure to invoke the procedural default in a timely 

manner has waived that defense in this case. To hold otherwise would be to create a 

procedural “double standard” unjustifiably favoring the State. Gonzalez v. United 

States, 33 F.3d 1047, 1049 (9th Cir. 1994).

f. Even If The Claim Is Defaulted, The Record Shows 
Cause & Prejudice

Even if the Court concludes that Mr. Banks defaulted this claim because of Mr. 

Cooksey’s failure to lodge a timely objection, the Court may nevertheless review the 

merits because Mr. Banks shows adequate cause and prejudice.

i. Governing Legal Standards

131



This Court may excuse Mr. Cooksey’s procedural default for failing to make 

a contemporaneous objection upon a showing of cause and prejudice. See Harris v. 

Reed, 489 U.S. 255 (1989); Murray v. Carrier, A ll  U.S. at 488-89. Attorney 

ineffectiveness, Murray, A ll  U.S. at 488, or conflict of interest, Cuyler v. Sullivan,

446 U.S. 335 (1980), both provide cause sufficient to excuse the procedural default 

in this case.

ii. The Record Establishes Ineffective Assistance 

Mr. Cooksey was ineffective for (1) failing to object, (2) failing to conduct a 

reasonable investigation, and (3) misunderstanding his burden of proof.

a. Failure to Object

Failing to object to a constitutional violation may indicate assistance of counsel 

that falls below the Strickland v. Washington standard of effectiveness and therefore 

constitute cause excusing a procedural default. Murray v. Carrier, A ll  U.S. at 488. 

In Jackson v. Herring, an attorney's failure to make a contemporaneous Swain 

objection was held to constitute deficient performance providing cause for the 

procedural default in light of the availability of strong evidence supporting the claim. 

42 F.3d 1350, 1358 (11th Cir. 1995).

It is clear that Mr. Cooksey’s failure to raise a Swain objection was not based 

upon any tactical decision. He testified that if he possessed evidence of an historical

132



practice of systematic exclusion of Black venire members through the prosecution’s 

use of peremptory strikes, he “probably would have” raised a Swain objection. SH3 

at 570-71, and later said if there had been even a “mere scintilla of success,” he would 

have raised a Swain claim. Id. at 583.

Mr. Cooksey was uniquely aware that Bowie County prosecutors 

systematically excluded Black jurors from criminal venires25 and could have 

assembled compelling proof of the continuing violations. By Mr. Cooksey’s own 

account, there was certainly more than just a mere scintilla of evidence. He conceded 

that the Raffaelli Administration’s striking practice up through Mr. Banks’s trial was 

racially disproportionate -  over 92% of the Black venire members being struck via 

peremptory strikes versus less than 20% of the whites. Id. at 589-90. He further 

acknowledged as “very significant” the statistical showing that the odds of this 

disparity occurring randomly were less than one in ten million. Id. at 592. Therefore, 

his failure to make a Swain objection was not a reasonable tactical choice and 

constitutes ineffective assistance excusing the default.

25 Mr. Cooksey had himself exercised peremptory challenges to exclude jurors on the basis of 
race during his tenure as District Attorney. See, infra. However, Mr. Cooksey operated under a 
distorted view o f his own office’s striking practice when he was District Attorney. He initially 
testified that there was not “any difference” in the rate at which his office struck Black and white 
venire members. SHTr.3 at 537. When shown that in the last four years o f  his tenure 94% of  
Black venire members were struck compared to less than 20% of white venire members, he was 
forced to concede that he had been mistaken. Id. at 551, 554, 590.



b. Failure to Conduct a Reasonable Investigation 

Failing to conduct a ‘reasonable investigation” into possible claims constitutes 

ineffective assistance of counsel. Strickland, 466 U.S. at 691. The state habeas court 

found that Mr. Cooksey “was aware of Swain and its holding.” Pet. RE Tab D a tf  12. 

At the evidentiary hearing Mr. Cooksey testified that he understood Swain did not 

require proving that every Black venire person was struck at every opportunity, 

SHTr.3 at 567-68, but rather that there was a “scheme” or “design to prevent a 

particular race . . .  from serving as jurors.” Id. at 567. The court also found that Mr. 

Cooksey “evaluated his chances for a successful challenge based on Swain” prior to 

Mr. Banks’s trial and concluded he could not prevail. Pet. RE Tab D at 1 18. Yet, at 

the same time, the court also found that Mr. Banks’s “statistics facially present a 

prima facie case [that] the Bowie County District Attorney’s Office excluded Black 

venire [persons]. Id. at Tflf 22, 27 (finding that the “statistical data, standing alone, 

presents a pattern of exclusion of Black venire [members]”).

The record shows Cooksey failed to conduct any investigation into the 

potential merits of raising such claim. At the very least, a reasonable investigation 

would include an assessment of whether the pattern of strikes by the prosecutor’s 

office supported a prima facie claim. This required an examination of the available 

data and an understanding of the applicable law. The record demonstrates that Mr.



Cooksey never collected any data. Mr. Cooksey testified that he did not raise a Swain 

objection because in one earlier case prosecuted by Mr. Raffaelli, he had noticed two 

Blacks on a jury. SHTr.3 at556,565. Yet, Mr. Cooksey readily conceded that a Swain 

claim could not center on a single case but rather required an examination of the 

prosecution’s striking practice over a series of cases. Id. at 565-68.

These inconsistencies, coupled with Mr. Cooksey's laconic assurance to Mr. 

Banks that the "State will strike all blacks," SHTr.3, Pet.Ex. #51, strongly suggests 

that trial counsel never considered making a Swain objection. Under these 

circumstances, this Court cannot conclude that the failure to investigate was "sound 

trial strategy, but need only ask "whether the facts of this case indicate that counsel's 

failure to investigate was 'within the range of competence demanded of attorneys in 

criminal cases.'" Cook v. Lynaugh, 821 F.2d 1072, 1078. In light of Bowie County 

prosecutors' well-known and longstanding practice of discriminating in the exercise 

of peremptory challenges, as well as Mr. Cooksey's unique knowledge of it, failing 

to conduct any investigation must be deemed ineffective.

c. Misunderstanding Swain's Burden o f Proof 

Moreover, the record shows that while Mr. Cooksey was generally aware of 

Swain’s holding, he had an erroneous view of the defendant’s burden of proof.



Counsel "must have a firm command of the facts of the case as well as the governing 

law before [they] can render reasonably effective assistance of counsel." Ex Parte 

Welbom, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Mr. Cooksey’s testimony 

reflects his belief that statistics were useless. He believed that in order to make out 

a Swain claim, a defendant had to not only to establish a pattern of racial disparity, 

but also had to prove the intent to discriminate in every case. This misperception of 

Swain is apparent in Mr. Cooksey’s direct examination:

Q: So, if you could show that in most cases most 
blacks were excluded most of the time, could you make out 
a Swain claim?

A: Not unless you looked at each individual case__

Q: And you don’t think that you could prove a Swain 
claim by doing what I showed you was done in Exhibit 45, 
that is, taking a group of cases and examining how, when 
all those cases are put together, what proportion of black 
jurors are struck by the prosecutor and what proportion of 
white jurors are struck?

A: No, I think you can take the information that you 
have assembled perhaps to prove a scheme or design or a 
conscientious effort to exclude a particular sect of people
from serving s jurors. I don’t think that in a particular case, 
no.

Q: You’re not familiar with the law that says you can 
infer a scheme of discrimination?

A: Sure you can infer it.

136



SHTr.3 at 568-69. On cross-examination, Mr. Cooksey went even further, 

testifying that, in addition to establishing a prima facie case, he believed that his 

initial burden mcluded showing discriminatory intent in the prosecution’s use of 

peremptory strikes to remove Black venire members in Mr. Banks’s case. SHTr.3 at 

582. Yet in his view, Swain offered “no legal vehicle” for proving intent, id. at 592, 

even though Swain held that a prosecutor’s peremptory strikes in a particular case 

were no longer “insulat[ed] from inquiry” upon a statistical showing. 380 U.S. at 223- 

24. He failed to appreciate that upon establishing a Swain prima facie case, he was 

entitled to a presumption that the State discriminated in Mr. Banks’s case, and that 

the burden shifted to the State to rebut this presumption.

It is axiomatic that trial counsel must conduct, at a minimum, a “reasonable 

investigation” into potential claims. Strickland, 466 U.S. at 691. It is plainly clear 

from the evidence in the record that Mr. Cooksey’s unreasonable failure to investigate 

the potential merit of a Swain claim explains why he failed to object to the state’s 

peremptory removal of all the qualified Black venire members in Mr. Banks’s case. 

The state habeas court clearly erred in finding that Mr. Cooksey was justified in 

concluding that a Swain claim challenging the District Attorney’s peremptory strike 

practice would not have been meritorious at the time of Mr. Banks’s trial, Pet. RE Tab 

D at If 13; that there was no evidence existing in the record to support the grounds

137



advanced for excusing the failure to object, id  at 1 15; and that Mr. Banks’s Swain 

claim was procedurally defaulted. Id. at ^ 16.

d. Mr. Cooksey’s Failure to Object Prejudiced Mr. Banks 

Prejudice is established where there is a “reasonable probability that, but for 

counsel’s unprofessional error, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. Systematically excluding Blacks from petit 

juries has been recognized to slant the judicial process unfairly against Black 

defendants. See Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991). Justice

Jackson described this prejudice in his dissent to Cassell v. Texas, 339 U.S. 282 

(1950):

It is obvious that discriminatory exclusion of Negroes from a trial juiy 
does, or at least may, prejudice a Negro’s right to a fair trial. . . .  The 
trial jury hears the evidence of both sides and chooses what it will 
believe. In so deciding, it is influenced by imponderables-unconscious 
and conscious prejudices and preferences -  and a thousand things we 
cannot detect or isolate in its verdict and whose influence we cannot 
weigh. . . .  A trial jury on which one of the defendant’s race has no 
chance to sit may not have the substance, and cannot have the 
appearance, of impartiality, especially when the accused is a Negro and 
the alleged victim is not.

339 U.S. at 301-02. More recently, the Supreme Court has held that in cases 

just like this one, where the defendant is African American and the victim white, a 

constitutional rule requiring voir dire on racial bias is necessary because some white

138



citizens continue to view Blacks as violence-prone. Turner v. Murray, 476 U.S. 28 

(1986).

Mr. Cooksey’s failure to make a Swain objection clearly prejudiced Mr. Banks. 

As the Eleventh Circuit recognized in the closely analogous case, Hollis v. Davis, “if 

we compared the result reached by an all white jury, selected by systematic exclusion 

of blacks, with the result which would have been reached by a racially mixed jury, we 

would have greater confidence in the latter outcome, finding much less probability 

that racial bias had affected it.” 941 F.2d 1471, 1482 (citing Huffman v. Wainwright, 

651 F.2d 347, 350 (5th Cir. UnitB 1991)).

iii- The Record Also Establishes an Actual Conflict o f Interest 

Conflict of interest may also render counsel ineffective under the Sixth 

Amendment, Cuyler v. Sullivan, 446 U.S. 335 (1980), providing cause to excuse a 

procedural default. Conflict must be actual, not speculative, to warrant relief. See 

Barrientosv. United States, 668 F.2d 838, 841 (5th Cir. 1982); Baty v. Balcom, 661 

F.2d 391, 392, 395 (5th Cir. 1981). A defense attorney suffers an actual conflict of 

interest when he “places himself in a situation inherently conducive to divided 

loyalties.” Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir. 1982), citing Zuck v. 

Alabama, 588 F.2d 436, 439 (5th Cir.). In Zuck, the Fifth Circuit held that actual 

conflict exists [i]f a defense attorney owes duties to a party whose interests are

139



adverse to those of the defendant. The interests of the other client and the defendant 

are sufficiently adverse if it is shown that the attorney owes a duty to the defendant 

to take some action that could be detrimental to his other client.” 588 F.2d at 439. See 

also United States v. Martinez, 630 F.2d 361 (5th Cir. 1980) (actual conflict existed 

where defense counsel previously represented a prosecution witness); Stephens v. 

United States, 595 F.2d 1066 (5th Cir. 1979) (actual conflict existed where 

defendant's attorney concurrently represented a prosecution witness).

a. The Record Shows an Actual Conflict 

During the course of voir dire, Mr. Banks wrote Mr. Cooksey a note, telling 

him “we need[ ] black[s].” SHTr.3 Pet. Ex.51. Mr. Cooksey wrote back that the “State 

will strike all blacks.”/*/. At the evidentiary hearing, Mr. Cooksey gave a rather 

strained explanation for his answer. He testified that he wrote the note “to allay” Mr. 

Banks’s fear that the trial court was responsible for striking Black venire members. 

The following exchange took place during direct examination:

Q: You were predicting that no black people would 
serve on the jury.

A: It wasn’t a prediction. It was to allay Mr. Banks’s 
fear, that the Court was neutral, the Court was not striking 
blacks, the [“]state will strike all blacks.”

140



Q: Well if that’s what it was, why didn’t you just say 
“State will strike blacks,” rather than “all blacks?” Mr.
Cooksey, your use...

A: When I...

Q: ... of the word “all” has some significance there, 
doesn’t it?

A: Well, it apparently does to you. The significance 
of the note is to allay Mr. Banks’s fears about this Court.

SHTr.3 at 564.

Given his prior role as District Attorney, Mr. Cooksey surely had a unique 

basis for believing that the District Attorney’s office had a systematic and intentional 

practice of excluding Black venire members. The note suggests that he obviously 

knew. The state habeas court’s contrary findings are clearly erroneous as they lack 

record support. Pet. RE Tab D at Hf 14, 18. Simply put, Mr. Cooksey had divided 

loyalties; his own conflict of interest kept him from raising a Swain claim. As the 

Supreme Court has recognized, “[t]he evil” of conflict of interest “is in what the 

advocate finds himself compelled to refrain from doing.” Holloway v. Arkansas, 435 

U.S. at 490 (1978). Mr. Banks submits that Mr. Cooksey did not object because he 

did not want to expose an entire practice that he himself had engaged in for years.

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The court below erred in concluding that this important and meritorious claim

was not properly before it. This Court should grant a certificate of appealability and 

award relief.

4. The Court Below Erred In Failing To Reach The
Insufficiency of The Evidence to Establish Future 
Dangerousness

A death sentence may not be imposed in Texas unless the state proves, beyond 

a reasonable doubt, that the defendant likely will commit acts of violence in the 

future. See Art. 37.07(b)(2); Jurek v. Texas, 428 U.S. 262 (1976). In this case, the 

prosecution relied upon three pieces of evidence to establish this special 

circumstances: (1) the underlying facts of the instant crime; (2) the testimony of 

Vetrano Jefferson that an unprovoked Mr. Banks had assaulted him with a pistol; and 

(3) Robert Farr’s testimony that Mr. Banks wanted to reclaim his gun in Dallas so he 

could commit armed robbery, and if necessary, eliminate the witnesses.

Even taking this evidence in the light most favorable to the prosecution, a 

thorough review of state law demonstrates that the evidence fails to establish Mr.

Banks’s future dangerousness beyond a reasonable doubt. Jackson v. Virginia, 443 

U.S. 307 (1979). Moreover, because the record now shows that (1) Mr. Jefferson’s 

trial testimony was misleading on the crucial question of who was the aggressor, and 

(2) Mr. Farr s trial testimony that Mr. Banks wanted to obtain a gun so he could rob

142 9



and likely kill was false, the only remaining competent evidence relevant to the 

second issue is the facts of the crime. That evidence falls far short of demonstrating 

the requisite degree of dangerousness.

The district court erred in holding that this claim was barred, 

a. Governing Legal Standards

The purpose of the second issue is to erect an unambiguous divide between 

persons who commit capital murder, and those with a demonstrable propensity to do 

so again. Although the circumstances of the crime can be the most probative evidence 

of future dangerousness, O ’Bryan v. State, 591 S.W.2d 464, 480 (Tex. Crim. App.

1979), it would “destroy the purpose of the punishment stage in a capital murder trial” 

to find sufficient evidence of this aggravating fact in “virtually every” case where the 

defendant intentionally murdered someone in the course of committing another 

felony. Rooney v. State, 632 S.W.2d 598, 603 (Tex. Crim. App. 1982).

The law requires that the death penalty not be “wantonly or freakishly” 

imposed. Beltran v. State, 728 S.W.2d 382, 388 (Tex. Crim. App. 1987); and Duffy 

v. State, 567 S.W. 2d 197 (Tex. Crim. App. 1978). Appellate review of the sufficiency 

of the evidence of future dangerousness is an integral part of the Texas Court of 

Criminal Appeals responsibility in assuring the evenhanded application of the 

ultimate punishment.” Vigneault v. State, 600 S.W.2d 318, 330 (Tex. Crim. App.

143



1980). Proof of more than a bare chance of future violence is required to support an 

affirmative finding to the second issue. Smith v. State, 779 S.W.2d 417, 421 (Tex. 

Crim. App. 1989). Unless everyone who commits a capital murder offense also meets 

the second special issue standard, this case is one that falls outside of its reach.

When deciding whether there was sufficient evidence to support a jury finding 

of the special issue, the court must view the evidence in light most favorable to the 

verdict and determine whether a rational trial of fact could have found the elements 

of Article 37.071 (b)(2) beyond a reasonable doubt. Beltran v. State, 728. S.W.2d 382, 

388 (Tex. Crim. App. 1987); Santana v. State, 741 S.W.2d 1 (Tex. Crim. App. 1986) 

and Fierro v. State, 706 S. W.2d 310,313 (Tex. Crim. App. 1986). All of the evidence 

in both phases of the trial may be considered. Beltran, supra, at 388; Ellason v. State, 

815 S.W.2d 656,660 (Tex. Cr. App. 1991), citingBrasfield v. State, 600 S.W.2d288 

(Tex. Cr. App. 1980).Those non-exclusive factors include, but are not limited to the 

following:

1. The circumstances of the capital offense, including the defendant’s state of 

mind and whether he or she was working alone or with other parties;

2. The calculated nature of the acts;

3. The forethought and deliberateness exhibited by the carrying out of the 

offense;

144



4. The existence of a prior criminal record and the severity of the prior crimes;

5. The defendant’s age and personal circumstances at the time of the offense;

6. Whether the defendant was acting under duress or the domination of 

another at the time of the commission of the offense;

7. Psychiatric evidence;

8. Character evidence, e.g., whether the state presented any “bad” reputation 

evidence against the defendant.

Id.

The reviewing court must first determine whether the facts of the crime alone 

are sufficient to support an affirmative response to the second special issue. Kunkle 

v. State, 771 S.W.2d 433, 449 (Tex. Crim. App. 1986). If so, the court looks “for 

other evidence to support the jury’s finding, such as psychiatric evidence, character 

evidence, prior criminal record, prior extraneous offenses and possible mitigating 

factors, such as the defendant’s youth or state of mind at the time of the offense.” Id. 

at 449; accord Brooks v. State, 559 S.W.2d 312, 323 (Tex. Crim. App. 1979).

While the circumstances of the offense alone may be sufficient, Allridge v. 

State, 850 S.W.2d 471, 488 (Tex. Cr. App. 1991); Black v. State, 816 S.W.2d 350, 

355 (Tex. Cr. App. 1991), courts typically require those circumstances to be 

particularly heinous and display a “wanton and callous disregard for human life.”

145



Deeb v. State, 815 S.W.2d 692, 703 (Tex. Cr. App. 1991); O ’Bryan, supra, at 481.

For example, in Joiner v. State, 825 S. W.2d 701, 704 (Tex. Cr. App. 1992), the court

found sufficient evidence where the defendant murdered two women, stabbing them

to death. Physical evidence additionally suggested that each victim was sexually

assaulted by appellant after their deaths. Id. at 704. In finding the evidence sufficient

to support the sentence, the court stated:

The evidence presented in this case demonstrates a complete disregard 
for the sanctity of human life. Appellant not only took the lives of the 
two complainants herein but disfigured and brutalized their bodies. 
Appellant’s actions appear cold, deliberate and calculated.

Id. Similarly, in Vuong v. State, 830 S.W.2d 929, 935 (Tex. Crim. App. 1992), the

circumstances of the offense alone were sufficient to support the jury’s affirmative

answer where the defendant systematically shot the patrons in a game room with a

semi-automatic rifle, killing two and injuring seven.

Less aggravated cases cannot establish the second special issue. For example, 

in Smith v. State, 779 S.W.2d 417, 419 (Tex.Cr.App. 1989), the defendant tied the 

deceased to the headboard of her bed and sexually assaulted her after stealthily 

entering the apartment. He then untied her and stabbed her fourteen times in the chest 

and back, including once through the heart. In a written confession, the defendant 

explained: After I raped her, I decided to kill her and then went crazy for a few

146



minutes.” Id. At trial, a state pathologist testified that the heart wound would have

killed the deceased soon after its infliction. He further explained the offense was “a

very typical sex murder” and while it was “a brutal death,” it was not “extremely”

brutal. Id. The court held at 419-20:

We cannot conclude the circumstances of the offense are so heinous or 
evince an “aberration of charter” so peculiarly “dangerous” as alone to 
justify an affirmative response to the second special issue .... To hold 
the offense itself in this cause was sufficient to prove future 
dangerousness would threaten to undermine the function of Article 
37.071, supra, to further narrow the class of death-eligible offenders to 
less than all those who have been found guilty of an offense as defined 
under [Penal Code] § 19.03___

Similarly, in Bransfield v. State, 600 S.W.2d 288 (Tex. Crim. App. 1980), the 

defendant kidnapped and murdered a six-year old boy. A pathologist testified the 

deceased died of asphyxiation. Additionally, the deceased received a heavy blow to 

the head, leaving a bruise, as well as numerous stab wounds inflicted after death. Id. 

at 292. The deceased’s trousers were pulled down around his legs, but his body was 

too advanced a stage of decomposition to determine whether he had been sexually 

molested. Reviewing the evidence, the court held that although “ ... we have a crime 

of violence supported by the circumstantial evidence ... we are led to the inescapable 

conclusion that the evidence was insufficient to support an affirmative answer to the

147



second issue.” Id. at 293-294. The court has repeatedly adhered to this view. See

Smith, supra, at 420, citing Roney v. State, 632 S.W.2d 598 (Tex. Crim. App. 1982):

“Although this was a senseless murder, that fact is true of every 
murder in the course of a robbery.. .To hold that the facts of this 
offense, standing alone, would support such a verdict, would 
mean that virtually every murder in the course of a robbery would 
warrant the death penalty. Such a construction would destroy the 
purpose of the punishment stage in capital murder, which is to 
provide a reasonable and controlled decision on whether the death 
penalty should be imposed, and to guard against its capricious and 
arbitrary imposition.”

Indeed, even where the evidence establishes an unprovoked, cold-blooded 

killing, the court has refused to conclude the offender would be a danger in the future. 

In Keeton v. State, 724 S.W.2d 59 (Tex. Crim. App. 1987), the defendant entered a 

grocery store and, without warning or provocation shot a clerk and fired at the store 

owner. He then went behind the counter and stole the complainants’ purses. In 

Rooney v. State, 632 S.W.2d 598 (Tex. Crim. App. 1982), during a grocery store 

robbery, the defendant, without provocation, shot a store clerk after receiving the 

money. Another clerk testified at trial that the deceased has his hands raised when he 

was shot. Id. at 602. In both, the Court concluded the facts failed to prove the second

special issue.

Moreover, in Beltran, supra, at 390, the defendant entered store armed with 

pistol and shot and killed store owner’s wife as she was taking money from cash

148



register. According to the State’s evidence, the instant murder case was clearly 

senseless and unnecessary as most murders committed in the course of a robbery are. 

There was no showing that the robbery was long in planning or that murder or 

violence was intended although the appellant was armed when he entered the store. 

Given the facts of the offense itself, we cannot say they were inherently sufficient to 

support the affirmative finding in question).” There was no psychiatric evidence at the 

penalty stage of the trial. Id. One witness did testify appellant’s reputation was “bad,” 

and appellant did have a prior criminal record, including two, possibly three 

convictions for driving when intoxicated. Id. The unadjudicated offenses were not 

shown to involve criminal acts of violence. Id. There was one assault upon a police 

officer. Id. The court, in viewing the evidence as a whole and in light most favorable 

to the jury s verdict, found there was insufficient evidence to support the affirmative 

finding to the second special issue. And in Huffman v. State, 746 S.W. 2d 212 (Tex. 

Crim. App. 1988), the evidence at the guilt stage of the trial showed murder committed 

in the course of robbery, the cause of death was asphyxia due to manual strangulation 

to the neck. Defendant led the police on a wild automobile chase, crashed or 

sideswiped two police vehicles in which officers were riding, resisted arrest, attacked 

another in the DWI room after the arrest. Defendant was highly intoxicated. At the 

penalty stage, the state offered evidence of a prior burglary conviction, testimony of

149



a jail guard that defendant attacked the guard 27 hours after arrest and “sometimes” 

had physical altercations with his girlfriend. Id. at 2243-224. While acknowledging 

in each of these cases-Beltran, Keeton, Rooney and Huffman-that the killings were 

senseless and unnecessary, the court nevertheless held the circumstances of the offense 

failed to establish the requisite continuing threat to society that Art. 37.07(b)(2) 

requires. See also Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App. 1995). 

b. The Record Facts Fail to Satisfy This Standard 

The record here is similarly insufficient to prove future dangerousness. The 

circumstances of this case are less aggravated than those found inadequate in Keeton, 

Beltran, Huffman, or Rooney. Unlike a convenience store robbery, which requires the 

some planning of entering a specific store armed, there is no evidence that Mr. Banks 

had any criminal intent as he spent what state witnesses described as an social evening 

with Mr. Whitehead. This is not a situation where a victim was stalked, or a 

convenience store singled out for robbery. Moreover, there is much evidence of 

drinking prior to Mr. Whitehead being shot. Two six packs of beer were known to 

have been purchased, 9SR at 2144, and much of the beers was consumed. Id. at 2145. 

In contrast to the above cases-in which the court found these facts were insufficient 

to support a finding of future dangerousness-the state’s evidence shows only a spur- 

of-the-moment killing.

150



Further, Mr. Banks’s crime was not marked by circumstances present in many 

robbery/murder cases that indicate future dangerousness. For example, many involve

crimes showing significant advanced planning.26 No one claims that circumstance is 

present here.

26 See e.g. Smith v. State, 540 S.W.2d 693 (Tex. Crim. App. 1976)(cased store waited 
until customers left); Earvin v. State, 582 S.W.2d 794 (Tex. Crim. App. 1979)(planned for at 
least two days while he and “confederate” obtained a shotgun and determined which business 
establishment would be robbed); Milton v. Texas, 599 S.W.2d 824 (Tex. Crim. App. 1980)(kept 
trying to secure pistol and had been seen armed with another gun); Crawford v. State, 617 
S.W.2d 925 (Tex. Crim. App. 1980)(staked out two other locations); Mitchell v. State, 650 
S.W.2d 801 (Tex. Crim. App. 1983)(defendant considered three potential victims before 
returning to rob fireworks stand); Williams v. State, 668 S.W.2d 692 (Tex. Crim. App. 
1983)(defendant robbed convenience store were he used to work; selected second victim, a 
former coworker, whom he knew would recognize him); Turner v. State, 698 S.W.2d 673 (Tex. 
Cnm. App. 1985)(robbed convenience store where he used to work; drank coffee with deceased 
poor to killing her); Armstrong v. State, 718 S.W.2d 686 (Tex. Crim. App. 1985)(told others he 
was going to rob store, knew deceased could identify him); Santana v. State, 714 S.W.2d 1 (Tex. 
Crim. App. 1986)(well prepared and armed for robbery with co-defendant; crime called “more 
terrorist attack than armed robbery”); Nichols v. State, 754 S.W.2d 185 (Tex. Crim. App.
198 8)(masterminded robbery, chose appropriate store, said “would shot anyone who got in his 
way”); Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)(planned with intent to kill in 
order to avoid having to walk back to town after automobile in which he was riding in stopped 
working); Burgess v. State, 855 S.W.2d 645 (Tex. Crim. App. 1991)(told witnesses that there 
was an old man who owned store that would be easy to rob, requested assistance and said he 
planned to murder victim); Green v. State, 840 S.W.2d 394 (Tex. Crim. App. 1992)(defendant, 
rather than codefendant, anticipated need for and procured weapon; cased the store; waited for 
one clerk to be on duty);, Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991)(showed 
“cool calculation”); Jenkins v. State, 912 S.W.2d 793 (Tex. Crim. App. 1993)(defendant planned 
to kill anyone in store to avoid identification; both store clerks shot at close range); Ford v. State, 
919 S.W.2d 107 (Tex. Crim. App. 1996)(evidence o f premeditation); Garcia v. State, 919 
S.W.2d 370 (Tex. Crim. App. 1994)(deliberate and calculated); Martinez v. State, 924 S.W.2d 
693 (Tex. Crim. App. 1996)(defendant and companion discussed robbing convenience store; 
defendant used knife to threaten or scare store clerk; stabbed clerk two or three times before clerk 
fell to floor, then defendant thrust knife in clerk’s back).

151



Nor was there excessive brutality. While the commission of a capital offense is 

undeniably brutal, the mere fact that such an offense is committed is insufficient in 

itself to prove future dangerousness. Green v. State, 682 S.W.2d 271,289 (Tex. Crim. 

App. 1984), cert denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985); 

McMahon v. State, 582 S.W.2d 786, 792 (Tex. Crim. App. 1978) Tex. Penal Code 

Ann. § 19.03 “limits the circumstances under which the State may seek the death 

penalty to a small group of narrowly defined and particularly brutal offenses. ” Smith 

v. State, 779 S.W.2d 417, 420 (Tex. Crim. App. 1989)(quoting Jurek v. State, 522

S.W.2d 934, 939 (Tex. Cr. App. 1975)(emphasis added).

152



Moreover, this circumstance is often present with advanced planning.27 The

See e.g., Brock v. State, 556 S.W.2d 309 (Tex. Crim. App. 1977)(abducted hostage after 
obtained money; defendant shot and killed hostage even though police did not fire shot and 
retreated on request, imploring defendant not to shoot); King v. State, 631 S.W.2d (Tex. Crim. 
App. 1982)(bludgeoned the head o f the deceased at the base o f skull as he lay on concrete slab, 
hitting him ten times with base o f shotgun; raped the deceased’s girl friend;); Russell v. State, ' 
665 S.W.2d 771 (Tex. Crim. App. 1983)(numerous knife wounds, including one to jugular vein, 
deceased skull crushed by concrete); Cass v. State, 676 S.W.2d 589 (Tex. Crim. App. 
1984)(abducted three victims, who were gagged, bound, sedated, placed inside a grave covered 
with lime, shot between seven and nine times; one o f the victims jumped out o f the grave and 
ran, defendant admitted shooting one him in back o f head); Landry v. State, 706 S.W.2d 105 
(Tex. Cnm. App. 1985)(victim handed over wallet, defendant then shot him); Santana v. State,
1 14 s -w -2d 1 (Tex. Cnm. App. 1986)(in close proximity to crowded department store defendant 
“unleashed a fusillade o f shots at still occupied van”); Carter v. State, 717 S.W.2d 60 (Tex.
Cnm. App. 1986)(two murders committed with a few days o f each other); Burdine v. State, 719 
S.W.2d 3009 (Tex. Crim. App. 1986)(gagged victim, attempted to smother him, bludgeoned him 
with lead-filled blackjack and eventually stabbed him to death); Kunkle v. State, 771 S.W.2d 435 
(Tex. Crim. App. 1986)(defendant grabbed gun from co-defendant, stuck it up against victim and 
said, “w e’re going to take you back here and blow your brains out”; defendant shot victim in 
back o f head); Drew  v. State, 743 S.W.2d 207 (Tex. Crim. App. 1987)(licked murder victim’s 
blood from hands); Smith v. State, 744 S.W.2d 86 (Tex. Crim. App. 1987)(defendant aimed and 
fired gun at pursuers); Barrientes v. State, 752 S.W. 2d 524, (Tex. Crim. App. 1987)(after 
convenience store manager was shot in head four times, defendant remained in store waiting on 
customers); Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988)(two murder victims);
Sosa v. State, 769 S.W.2d 909 (Tex. Crim. App. 1989)(kidnaped victim at gunpoint, handcuffed 
and stuffed him into trunk o f car; threatened to kill two bank employees); Guerra v. State, 771 
S.W.2d 453 (Tex. Crim. App. 1988)(armed with pistols on day o f offense; shot at various 
bystanders); Baldree v. State, 784 S.W.2d 676 (Tex. Crim. App. 1989)(found guilty o f two 
murders o f victims related to defendant by marriage); Madden v. State, 799 S.W.2d 683 (Tex. 
Cnm. App. 1990)(murdered robbery victim and son; hog tied son, throat severed execution 
style}; Mine! v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992)(victim stabbed multiple times)- 
Felder v. State, 848 S.W.2d 85, (Tex. Crim. App. 1992)(victim was a quadriplegic)-JlBridge v. 
State, 850 S.W.2d 471 (Tex. Cnm. App. 1991)(murder carried out “execution style”); Johnson v. 
State, 853 S.W.2d 527 (Tex. Crim. App. 1992)(during burglary, defendant hid in waiting and 
shot two victims because “dead men don’t talk”); Barnes v. State, 876 S.W.2d 174 (Tex. Crim. 
App. 1994)(victim beaten and stabbed then shot point blank through head); Coleman v. State,
881 S.W.2d 344 (Tex. Cr. App. 1994)(defendant threw blanket over 87-year-old victim, hit her 
on head with hammer and strangled her with her own stocking); Banda v. State, 890 S.W.2d 42 
(Tex. Crim. App. 1994)(sexually assaulted , robbed and murdered 74-year-old widow); Garcia 
v. State, 919 S.W.2d 370 (Tex. Crim. App. 1994)(used sawed off shotgun to murder clerk during 
robbery); Chambers v. State, 903 S.W.2d 21.P. (Tex. Crim. App. 1995)(robbery o f two victims, 
execution style shooting, and repeated two attempts to murder survivor).

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offense here had none of the hallmarks of brutality in the cases cited herein.

Since Mr. Banks’s crime does not possess circumstances that are “probative 

evidence of a propensity to commit future acts of violence,” Russell v. State, 598 S. W. 

2d at 254, the entire record must also be considered to determine whether the 

sufficient evidence is nevertheless present. Kunkle v. State, 111 S.W.2d at 449.

During the penalty phase, the state relied entirely on the testimony of Robert 

Farr and Vetrano Jefferson. As previously discussed, Farr testified that Mr. Banks 

returned to Dallas to obtain a gun so that he could commit robberies and, if necessary, 

harm the victims. 10SR at 2499-2502. Even if believed, this testimony describes 

speculative acts only, ones that have neither gone beyond a preparatory stage nor 

constitute an offense. His credibility was impeached by a former Arkansas policeman,

who testified that Farr was a “doper” Id at 2557, police informant, id. 2558, who was 

not truthful. Id.

Mr. Jefferson testified that he once fought briefly with Mr. Banks, his common- 

law brother in law Id. at 2492-93. He described Mr. Banks as the aggressor, but that 

he sustained no lasting injury. Id. This marginal evidence fails to establish Mr. 

Banks's future dangerousness in this murder-robbery case, and distinguishes it from 

numerous others where substantial evidence was found in the record. Ellason,

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supra, at 663 (fight between in-laws “not particularly probative “of whether defendant 

would commit criminal acts of violence that would constitute a continuing threat to 

society).28

See e.g, Brock v. State, 556 S.W.2d 309 (Tex. Crim. App. 1977)(used drugs, convicted 
for burglary with intent to commit theft); Milton v. Texas, 599 S.W.2d 824 (Tex. Crim. App. 
1980)(criminal record o f robbeiy and theft); Crawford v. State, 617 S.W.2d 925 (Tex. Crim. 
App. 1980)(three months after offense, appellant committed offenses o f  burglary and arson, 
knowing risk o f loss o f human life); Williams v. State, 668 S.W.2d 692 (Tex. Crim. App. 
1983)(defendant’s own account o f involvement in a capital murder-robbery o f a convenience 
store earlier that day); Morin v. State, 682 S.W.2d 265 (Tex. Crim. App. 1984)(prior felonies; 
evidence o f another killing, an attempted killing and assault on third person); Smith v. State, 683 
S.W.2d 393 (Tex. Crim. App. 1984)(evidence of prior crimes); Landry v. State, 706 S.W.2d 641 
(Tex. Crim. App. 1986)(burglary, assaulted officer when arrested arrest; cocked gun and was 
ready to shoot children, slapped mother knocking her against car); Jordan v. State, 707 S.W.2d 
641 (Tex. Crim. App. 1986)(four previous robberies, including three in which the defendant 
exhibited a gun; evidence o f attack and threat on court bailiff); Carter v. State, 717 S.W.2d 60 
(T®x- Crim. App. 1986)(two murders committed with a few day of each other during robbery); 
Bridge v. State, 726 S.W.2d 558 (Tex. Crim. App. 1986)(prior burglary conviction; 
methamphetamine lab in defendant’s apartment; defendant escaped from county jail); Burdine v. 
State, 719 S.W.2d 309 (Tex.Crim. App, 1986) (prior convictions for arson, burglary and 
sodomy), Barnard v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987)(four felony offenses 
resulting in prison terms, one conviction for assault with intent to rape; repeated possession o f  
firearms; attempt to escape from ja il); Gardner v. State, 730 S.W.2d 675 (Tex. Crim. App.
1987)( 11 felony convictions including 1 aggravated assault o f police officer and seven 
convictions for burglaries; long history o f drug induced recidivism; propensity for use o f deadly 
weapons; two months after offense, defendant robbed convenience store clerk at gunpoint); 
Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987)(two prior unprovoked stabbings; 
defendant possessed homemade knife in jail cell); Barrientes v. State, 752 S.W.2d 254 (Tex. ' 
Crim. App. 1987)(had been arrested for another capital murder that had never been tried because 
key witness disappeared); Burns v. State, 761 S.W.2d 353 (Tex. Crim. App. 19XX) (participated 
m killing o f one individual; participated in kidnaping and assault o f another); Baldree v. State, 
784 S.W.2d 676 (Tex. Crim. App. 1989)(extensive criminal record); Harris v. State, 790 S.W.2d 
568 (Tex. Crim. App. 1989)(felony offenses); Madden v. State, 799 S.W.2d 683 (Tex. Crim.
App. 1990)(defendant pulled knife on sheriff during questioning regarding unrelated burglary, 
telling him he was “going to cut his fucking head o ff ’); Minel v. State, 831 S.W.2d 310 (Tex/ 
Crim. App. 1992)(felony convictions for aggravated battery, unlawful use o f weapon, disorderly 
conduct; loaded shotgun within arms reach when he was arrested; probation revoked in another 
state; evidence that he beat his girlfriend); Bogess v. State, 855 S.W.2d 645 (Tex. Crim. App. 
1991)(convicted o f another murder; threatened to girl friend; threatened to attack trial judge);

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Moreover, the record contains evidence that refutes Mr. Banks’s likely 

dangerousness in the future. Favorable reputation evidence was elicited from seven 

witnesses. 1OSR at 2514-2532,2563-64. For example, Frank McGill, a teacher, knew 

Banks for six years and said that Banks was “as fine a student as you could find; never 

gave anybody a minutes [sic] trouble.” Id. at 2428. Sylvester Hill, owner of a janitorial 

service testified that he had known Delma Banks for eight years. Id. at 2563. Mr. Hill 

testified that Mr. Banks had been an employee and “worked real good. We never had 

no problems out of him.” Id. at 2564. The record also contains evidence of Mr.

Green v‘ Sf ate' 840 s  w -2d 394 (Tex. Crim. App. 1992)(two previous felony convictions; 
segregated six times m prison); Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992)(burglar 
with propensity for carrying deadly weapons with him when engaging in that activity); Hathom 
v. State, 848 S.W.2d 101 (Tex. Crim. App 1992)(prior assaultive behavior; threats against prior 
robbeiy victim, chief o f  police and prosecutor); Allridge v. State, 850 S.W.2d 471 (Tex. Crim. 
App. 1991)(seven other aggravated robberies); Rosseau v. State, 855 S.W.2d 666 (Tex. Crim. 
App. 1993)(prior assaultive behavior; plotted robbery murders similar to one that resulted in 
victim’s death); Barnes v. State, 876 S.W.2d 174 (Tex. Crim. App. 1994)(defendant harmed 
victims on more than one occasion; repeatedly threatened to kill others during previous offenses)- 
Wdkerson v State, 881 S.W.2d 321 (Tex. Crim. App. 1994)(rampage o f aggravated robberies); 
Coleman v. State, 887 S.W.2d 862 (Tex. Cnm. App. 1994)(attacked 88-year-old victim seven 
months earlier to murder-robbery offense); Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 
1994)(long history o f criminal misconduct and total disregard for the law); Banda v. State, 890
S.W 2d 42 (Tex. Cnm. App. 1994)(pulled a knife on female acquaintance two months before 
murder; pnor criminal convictions); Jenkins v. State, 912 S.W 2d 793 (Tex. Crim. App. 
1993)(defendant planned to kill accomplice and had criminal record); Garcia v. State, 919 
S.W.2d 370 (Tex. Crim. App. 1994)(committed another capital murder within month o f the 
instant offense); Miles v. State, 918 S.W.2d 511 (Tex. Crim. App. 1996)(armed robbery after 
commission o f offense).

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Banks s remorse. Charles Cook testified that Mr. Banks had “tears in his eyes” when 

talking about the shooting. 9SR at 2295.

In the end, the state’s evidence failed to show that this first offender would 

likely be a continuing threat to society. It offered no psychiatric opinion as to future 

dangerousness. His sole prior violent act was the result of a family misunderstanding. 

When this weak evidence is viewed in conjunction with mitigating factors in the 

defendant s favor, it is clear that the state failed to show beyond a reasonable doubt 

the probability that petitioner will commit criminal acts of violence that will constitute 

a continuing threat to society.

c. No Procedural Bar to Prevent Merits Review O f This Claim 

Below, the Director asserts and the Court determined summarily that this claim 

cannot be reviewed on its merits because in the third state habeas proceeding, the trial 

court found the claim procedurally barred and not cognizable in post-conviction 

proceedings. See Pet. RE Tab A at 7. These views are in error.

In each of his state post-conviction proceedings, Mr. Banks pleaded that his 

death sentence was unconstitutional because the state’s evidence in support of the 

second special issue was insufficient to demonstrate his likely future dangerousness. 

In both the first and second proceedings, the claim was entertained on its merits but 

summarily rejected. Thus, even though Mr. Banks’s appellate counsel failed to raise

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the claim on direct appeal, the state courts repeatedly forgave that omission and 

reviewed the claim on its merits during the first and second proceedings. The third 

state habeas court’s determination that the claim is defaulted thus can be understood 

only as a determination that it would not yet again review the merits of the claim.

Finally, if the Court nevertheless concludes that the claim is defaulted, Mr. 

Banks submits that, given all the evidence now in the record that raises a very strong 

doubt about his guilt, a miscarriage of justice will occur in the absence of review. 

Schlup v. Delo, 513 U.S. 298 (1995); Calderon v. Thompson, 118 S.Ct. 1489 (1998). 

Mr. Farr has testified credibly that his penalty phase testimony was a 

misrepresentation. Mr. Banks never had plans to commit any further crimes. Mr. 

Jefferson testified that his trial testimony was also misleading; he, not Mr. Banks was 

the aggressor. Mr. Banks acted chiefly to protect his pregnant common-law wife from 

a drunken Mr. Jefferson. Mr. Cook testified that much of his trial testimony was 

untruthful, and Mr. Banks presented unrebutted evidence that reliably identifies time 

of death to be at a time when it was impossible for Mr. Banks to have committed the 

crime. Based on the record as a whole, this new evidence shows, by clear and 

convincing evidence, that Mr. Banks would not have been convicted or sentenced to 

death had the juiy known of this evidence. See Reasonover v. Washington, 60 

F.Supp.2d 937 (E.D.Mo. 1999)(key state witness’s testimony shown to be fabricated

158



and second witness received leniency for testimony); Richer v. Bartee, 973 F.Supp. 

1118 (D.Neb. 1997)(new evidence raises very strong doubt that complainant in sexual 

assault case fabricated crime).

Under these circumstances, even if the claim is defaulted, Mr. Banks is entitled 

to merit review by this Court.

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CONCLUSION

For the reasons stated above, the district court’s grant of relief as to sentence 

should be affirmed, certificates of appealability should issue to allow review of the 

guilt phase claims addressed herein, and full habeas relief granted.

Respectfully submitted,

Clifton L. Holmes 
Attorney at Law 
P.O. Drawer 3267 
Longview, Texas 75601 
903-758-2200

Elaine R. Jones 
Director-Counsel 

George H. Kendall 
Assistant Counsel 

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200

BY:_______ __________
Counsel for Petitioner 
Delma Banks, Jr.

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CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing pleading was 

served by first-class mail, postage pre-paid, on July 13, 2001 to:

Katherine D. Hayes 
Assistant Attorney General 
Capital Litigation Division 
Office of the Attorney General 
P. O. Box 12548 Capitol Station 
Austin, Texas 78711-2548

161