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Justices hear death penalty case appeal


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WASHINGTON (CNN) -- The Supreme Court Monday questioned why Texas officials withheld crucial evidence from the defense in a high-profile death penalty case in Texas.

The query renewed long-standing debate about whether capital defendants consistently receive adequate representation and fair treatment from the courts.

The case involves Delma Banks, 44, who was convicted of murdering a 16-year-old co-worker in 1980. His attorneys argued that he had incompetent counsel at trial and that testimony from witnesses was not strong enough to convict him.

Banks' case is rare in that justices halted his scheduled execution 10 minutes before he was to receive a lethal injection. Weeks later, they agreed to hear his habeas corpus appeal.

Banks' appeal was broad-based, but in oral arguments, the justices seemed to focus almost exclusively on the credibility of two key prosecution witnesses from the 1981 trial. Charles Cook testified Banks admitted to murder, and Robert Farr testified Banks retrieved a gun to commit armed robberies.

But Banks' lawyers claim Cook lied on the stand when he denied being coached by the prosecution and that he's struck a deal for leniency with the prosecutors.

Banks' attorney George Kendall said the district attorney let the discrepancies pass during the trial and the appeal process.

"We were misled by the state. Farr denied he was a [police] informant, but he was an informant, and the prosecution told the jury everything Farr testified to was truthful," Kendall said.

Questions and a caution from the bench

That led to a barrage of questioning from several justices, including Justice Ruth Bader Ginsburg, who asked, "Doesn't the prosecutor have an obligation to come clean, to not allow the falsehood to become part of the record?"

Texas Assistant Attorney General Gena Bunn confirmed the testimony of Farr and Cook was "untruthful" but said prosecutors were not malicious when they mistakenly issued a "general denial" of Farr being a paid police informant.

That prompted Justice Antonin Scalia to sharply rebuke Bunn. "Be careful what you deny," said Scalia, shaking his head.

Banks, convicted of killing Richard Whitehead, has been on death row since 1981, making him one of the state's longest-serving capital inmates. Both a Texas appeals court and the parole board had rejected his case.

Justice Sandra Day O'Connor questioned why prosecutors were so eager to pursue the death penalty for Banks since he had no previous criminal history. Prosecutors told the jury Banks was a future danger to society, a key requirement for a find of death.

Racial bias claims refused

Farr's testimony was key in the sentencing phase of the trial, claiming Banks planned the murder in advance. O'Connor questioned why that testimony was allowed to pass, given Farr's apparent lack of credibility as a witness. "You would think that would go to the heart of the case," said O'Connor.

Bunn responded that Banks had committed an "unprovoked murder."

Scalia criticized much of the prosecution's handling of the case, but expressed little sympathy for mitigating circumstances presented by Banks' defense. Kendall said the evidence offered by Banks and his mother, among others, showed mental health problems, severe beatings by his alcoholic father, and an embarrassing dermatological problem that led to teasing by classmates.

"He had a skin problem?" queried Scalia, usually a death penalty proponent. "Who would have thought this could lead to cold-blooded murder?"

Banks also claims prosecutors deliberately kept African-Americans off the all-white jury. Banks is African-American; his victim was white. But the court refused to hear that aspect of the appeal. In a similar case in Texas, justices late last year ruled another African-American man convicted of murder deserved a new trial to prove his claims of racial bias and jury discrimination.

Texas has put more people to death than any other state since the high court reinstated the death penalty in 1976. Texas capital punishment amounts to roughly a third of the nation's total.

The case is Banks v. Dretke (Case number #02-8286).


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