Expressing concern about the integrity of the criminal justice system, several Supreme Court justices indicated Monday that they believed the court should throw out the sentence of one of the nation’s longest-serving Death Row inmates because of alleged misconduct by prosecutors at the trial.
Taking up the case of inmate Delma Banks, the justices seemed troubled by assertions that prosecutors had failed to provide key documents and information to Banks’ lawyers that could have made the difference in life or death.
Several justices, including Justice Anthony Kennedy, sharply questioned a lawyer for the state of Texas after she argued that any deficiencies in Banks’ trial made no difference in the outcome. She said prosecutors did not lie and had disclosed ample information to Banks’ lawyers, and that it was too late for him to raise the issue now.
“So you want us to say a defendant relies at his peril on the representations of prosecutors?” Kennedy asked.
George Kendall, a lawyer formerly with the NAACP Legal Defense and Education Fund who argued on Banks’ behalf, told justices that prosecutors had misled Banks’ trial lawyers about key witnesses and concealed documents. That misconduct warranted either a new trial for Banks or new sentencing, he said.
Kendall also argued that Banks’ legal representation during the trial was inadequate and the lawyer failed to investigate or prepare witnesses who could have persuaded a jury to spare Banks’ life.
Banks’ supporters include a group of former prosecutors and judges who say they are concerned about the egregious failings by the prosecution and defense counsel. They say this case exhibits two of the most prevalent flaws in the death penalty system: the failure of prosecutors to disclose evidence that could spare a defendant and the inadequacy of lawyers representing those facing the death penalty.
The case comes as the court is scrutinizing the death penalty more closely, with a particular focus on the quality of legal representation for capital defendants. Last term, the court said a Maryland Death Row inmate did not receive an effective assistance of counsel, as guaranteed by the Constitution, when his lawyers failed to thoroughly investigate his background.
That ruling strongly reinforced the principle that lawyers must do the hard work necessary to represent capital defendants.
Justices Sandra Day O’Connor and Ruth Bader Ginsburg also have publicly indicated they are concerned about whether defendants facing a death sentence are adequately represented. O’Connor has suggested that lawyers representing capital defendants be required to meet minimum standards.
Banks argues that his lawyers failed to do their job, in violation of his 6th Amendment right to counsel, during the sentencing phase of his trial. The lawyers failed to question and prepare witnesses, including Banks’ parents, who could have persuaded a jury to spare his life, Kendall said Monday.
Banks was convicted and sentenced to death in 1981 for murdering a 16-year-old acquaintance in order to steal his car. Critical to his conviction and death sentence was testimony by two witnesses, both of whom lied on the stand. Instead of correcting the testimony, prosecutors told the jury both had been truthful.
A Texas federal court judge threw out Banks’ sentence three years ago. The judge concluded Banks was entitled to a new sentencing hearing because prosecutors failed to disclose that one of the witnesses was a paid informant and that the other had been extensively interviewed by law-enforcement officials–critical points that the witnesses denied during the trial.
But a federal appeals court disagreed and reinstated the sentence. It said Banks should have made some of those points earlier, in a state court challenge.
