Links are to:
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
The following decisions have just arrived via the LII's direct
Project HERMES feed from the Supreme Court.
Syllabus
SUPREME COURT OF THE UNITED STATES
BANKS v. DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02—8286. Argued December 8,
2003–Decided February 24, 2004
After police found a gun-shot corpse near
Texarkana, Texas, Deputy Sheriff Willie Huff learned that the
decedent had been seen with petitioner Banks three days earlier.
When a paid informant told Deputy Huff that Banks was driving to
Dallas to fetch a weapon, Deputy Huff followed Banks to a residence
there. On the return trip, police stopped Banks’s vehicle, found a
handgun, and arrested the car’s occupants. Returning to the Dallas
residence, Deputy Huff encountered Charles Cook and recovered a
second gun, which Cook said Banks had left at the residence several
days earlier. On testing, the second gun proved to be the murder
weapon. Prior to Banks’s trial, the State advised defense counsel
that, without necessity of motions, the State would provide Banks
with all discovery to which he was entitled. Nevertheless, the State
withheld evidence that would have allowed Banks to discredit two
essential prosecution witnesses. At the trial’s guilt phase,
Cook testified, inter alia, that Banks admitted “kill[ing a]
white boy.” On cross-examination, Cook thrice denied talking to
anyone about his testimony. In fact, Deputy Huff and prosecutors
intensively coached Cook about his testimony during at least one
pretrial session. The prosecution allowed Cook’s misstatements to
stand uncorrected. After Banks’s capital murder conviction, the
penalty-phase jury found that Banks would probably commit criminal
acts of violence that would constitute a continuing threat to
society. One of the State’s two penalty-phase witnesses, Robert
Farr, testified that Banks had retrieved a gun from Dallas in order
to commit robberies. According to Farr, Banks had said he would
“take care of it” if trouble arose during those crimes. Two defense
witnesses impeached Farr, but were, in turn, impeached. Banks
testified, among other things, that, although he had traveled to
Dallas to obtain a gun, he had no intent to participate in the
robberies, which Farr alone planned to commit. In summation,
the prosecution suggested that Banks had not traveled to Dallas only
to supply Farr with a weapon. Stressing Farr’s testimony that Banks
said he would “take care” of trouble arising during the robberies,
the prosecution urged the jury to find Farr credible. Farr’s
admission that he used narcotics, the prosecution suggested,
indicated that he had been open and honest in every way. The State
did not disclose that Farr was the paid informant who told Deputy
Huff about the Dallas trip. The judge sentenced Banks to death.
Through Banks’s direct appeal, the State
continued to hold secret Farr’s and Cook’s links to the police.
In a 1992 state-court postconviction motion, Banks alleged for the
first time that the prosecution knowingly failed to turn over
exculpatory evidence that would have revealed Farr as a police
informant and Banks’s arrest as a “set-up.” Banks also alleged that
during the trial’s guilt phase, the State deliberately withheld
information of a deal prosecutors made with Cook, which would have
been critical to the jury’s assessment of Cook’s credibility.
Banks asserted that the State’s actions violated Brady v.
Maryland,
373 U.S. 83, 87, which held that the prosecution’s suppression
of evidence requested by and favorable to an accused violates due
process where the evidence is material to either guilt or
punishment, irrespective of the prosecution’s good or bad faith. The
State denied Banks’s allegations, and the state postconviction court
rejected his claims.
In 1996, Banks filed the instant federal
habeas petition, alleging, as relevant, that the State had withheld
material exculpatory evidence revealing Farr to be a police
informant and Banks’ arrest as a “set-up.” Banks further alleged
that the State had concealed Cook’s incentive to testify in a manner
favorable to the prosecution. Banks attached affidavits from Farr
and Cook to a February 1999 motion seeking discovery and an
evidentiary hearing. Farr’s declaration stated that he had agreed to
help Deputy Huff with the murder investigation out of fear Huff
would arrest him on drug charges; that Huff had paid him $200; and
that Farr had “set [Banks] up” by convincing him to drive to Dallas
to retrieve Banks’s gun. Cook recalled that he had participated in
practice sessions before the Banks trial at which prosecutors told
him he must either testify as they wanted or spend the rest of his
life in prison. In response to the Magistrate Judge’s disclosure
order in the federal habeas proceeding, the prosecution gave Banks a
transcript of a September 1980 pretrial interrogation of Cook by
police and prosecutors. This transcript provided compelling evidence
that Cook’s testimony had been tutored, but did not bear on whether
Cook had a deal with the prosecution. At the federal evidentiary
hearing Huff acknowledged, for the first time, that Farr was an
informant paid for his involvement in Banks’s case. A Banks trial
prosecutor testified, however, that no deal had been offered to gain
Cook’s testimony. The Magistrate Judge recommended a writ of habeas
corpus with respect to Banks’s death sentence based on, inter
alia, the State’s failure to disclose Farr’s informant status.
The judge did not recommend disturbing the guilt-phase verdict,
concluding in this regard that Banks had not properly pleaded a
Brady claim based on the September 1980 Cook interrogation
transcript. The District Court adopted the Magistrate Judge’s report
and rejected Banks’s argument that the Cook transcript claim be
treated as if raised in the pleadings, under Federal Rule of Civil
Procedure 15(b).
The Fifth Circuit reversed to the extent
the District Court had granted relief on Banks’s Farr Brady
claim. The Court of Appeals recognized that, prior to federal habeas
proceedings, the prosecution had suppressed Farr’s informant status
and his part in the Dallas trip. The Fifth Circuit nonetheless
concluded that Banks did not act diligently to develop the facts
underpinning his Farr Brady claim when he pursued his 1992
state-court postconviction application. That lack of diligence, the
Court of Appeals held, rendered the evidence uncovered in the
federal habeas proceeding procedurally barred. In any event, the
Fifth Circuit ruled, Farr’s status as an informant was not
“material” for Brady purposes. That was so, in the Fifth
Circuit’s judgment, because Banks had impeached Farr at trial by
bringing out that he had been an unreliable police informant in
Arkansas, and because much of Farr’s testimony was corroborated by
other witnesses, including Banks himself, who had acknowledged his
willingness to get a gun for Farr’s use in robberies. The Fifth
Circuit also denied a certificate of appealability on Banks’s Cook
Brady claim. In accord with the District Court, the Court of
Appeals rejected Banks’s assertion that, because his Cook Brady
claim had been aired by implied consent, Rule 15(b) required it
to be treated as if raised in the pleadings.
Held: The Fifth Circuit erred in dismissing
Banks’s Farr Brady claim and denying him a certificate of
appealability on his Cook Brady claim. When police or
prosecutors conceal significant exculpatory or impeaching material
in the State’s possession, it is ordinarily incumbent on the State
to set the record straight. Pp. 17—34.
(a) Both of Banks’s Brady claims arose
under the regime in place prior to the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). P. 17.
(b) Banks’s Farr Brady claim, as it
trains on his death sentence, is not barred. All three elements of a
Brady claim are satisfied as to the suppression of Farr’s
informant status and its bearing on the reliability of the jury’s
verdict regarding punishment. Because Banks has also demonstrated
cause and prejudice, he is not precluded from gaining federal habeas
relief by his failure to produce evidence in anterior state-court
proceedings. Pp. 17—31.
(1) Pre-AE DPA habeas law required Banks
to exhaust available state-court remedies in order to pursue
federal-court relief. See, e.g., Rose v. Lundy,
455 U.S. 509. Banks satisfied this requirement by alleging in
his 1992 state-court habeas application that the prosecution
knowingly failed to turn over exculpatory evidence about Farr.
Banks, however, failed to produce evidence in state postconviction
court establishing that Farr had served as Deputy Sheriff Huff’s
informant. In the federal habeas forum, Banks must show that he was
not thereby barred from producing evidence to substantiate his Farr
Brady claim. Banks would be entitled to a federal-court
evidentiary hearing if he could show both cause for his failure to
develop facts in state court, and actual prejudice resulting from
that failure. Keeney v. Tamayo-Reyes,
504 U.S. 1, 11. A Brady prosecutorial misconduct claim
has three essential elements. Strickler v. Greene,
527 U.S. 263, 281—282. Beyond debate, the first such
element–that the evidence at issue be favorable to the accused as
exculpatory or impeaching–is satisfied here. Farr’s paid informant
status plainly qualifies as evidence advantageous to Banks. Cause
and prejudice in this case parallel the second and third of the
three Brady components. Corresponding to the second Brady
element–that the State suppressed the evidence at issue–a petitioner
shows cause when the reason for the failure to develop facts in
state-court proceedings was the State’s suppression of the relevant
evidence. Coincident with the third Brady component–that
prejudice ensued–prejudice within the compass of the “cause and
prejudice” requirement exists when suppressed evidence is “material”
for Brady purposes. Ibid. Thus, if Banks succeeds in
demonstrating cause and prejudice, he will also succeed in
establishing the essential elements of his Farr Brady claim.
Pp. 17—19.
(2) Banks has shown cause for failing
to present evidence in state court capable of substantiating his
Farr Brady claim. As Strickler instructs, 527 U.S., at
289, three inquiries underlie the “cause” determination: (1) whether
the prosecution withheld exculpatory evidence; (2) whether the
petitioner reasonably relied on the prosecution’s open file policy
as fulfilling the prosecution’s duty to disclose such evidence; and
(3) whether the State confirmed the petitioner’s reliance on that
policy by asserting during the state habeas proceedings that the
petitioner had already received everything known to the government.
This case is congruent with Strickler in all three respects.
First, the State knew of, but kept back, Farr’s arrangement with
Deputy Huff. Cf. Kyles v. Whitley,
514 U.S. 419, 437. Second, the State asserted, on the eve of
trial, that it would disclose all Brady material. Banks
cannot be faulted for relying on that representation. See
Strickler, 527 U.S., at 283—284. Third, in its answer to Banks’s
1992 state habeas application, the State denied Banks’s assertions
that Farr was a police informant and Banks’s arrest a “set-up.” The
State thereby confirmed Banks’s reliance on the prosecution’s
representation that it had disclosed all Brady material. In
this regard, Banks’s case is stronger than was the Strickler
petitioner’s: Each time Farr misrepresented his dealings with
police, the prosecution allowed that testimony to stand uncorrected.
Cf. Giglio v. United States,
405 U.S. 150, 153. Banks appropriately assumed police would not
engage in improper litigation conduct to obtain a conviction. None
of the State’s arguments for distinguishing Strickler on the
“cause” issue accounts adequately for the State’s concealment and
misrepresentation of Farr’s link to Huff. In light of those
misrepresentations, Banks did not lack appropriate diligence in
pursuing the Farr Brady claim in state court. Nor is Banks at
fault for failing to move, in the 1992 state-court postconviction
proceedings, for investigative assistance so that he could inquire
into Farr’s police connections, for state law entitled him to no
such aid. Further, Roviaro v. United States,
353 U.S. 53, which concerned the Government’s obligation to
reveal the identity of an informant it does not call as a witness,
does not support the State’s position. Pp. 19—26.
(3) The State’s suppression of Farr’s
informant status is “material” for Brady purposes. The
materiality standard for Brady claims is met when “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, 514 U.S., at 435. Farr was paid for a
critical role in the scenario that led to Banks’s indictment. Farr’s
declaration, presented to the federal habeas court, asserts that
Farr, not Banks, initiated the proposal to obtain a gun to
facilitate robberies. Had Farr not instigated, upon Deputy Huff’s
request, the Dallas excursion to fetch Banks’s gun, the prosecution
would have had slim, if any, evidence that Banks planned to continue
committing violent acts. Farr’s admission of his instigating role,
moreover, would have dampened the prosecution’s zeal in urging the
jury to consider Banks’s acquisition of a gun to commit robbery or
his “planned violence.” Because Banks had no criminal record, Farr’s
testimony about Banks’s propensity to violence was crucial to the
prosecution. Without that testimony, the State could not have
underscored to the jury that Banks would use the gun fetched in
Dallas to “take care” of trouble arising during robberies. The
stress placed by the prosecution on this part of Farr’s testimony,
uncorroborated by any other witness, belies the State’s suggestion
that Farr’s testimony was adequately corroborated. The prosecution’s
penalty-phase summation, moreover, left no doubt about the
importance the State attached to Farr’s testimony. In contrast to
Strickler, where the Court found “cause,” 527 U.S., at 289, but
no “prejudice,” id., at 292—296, the existence of “prejudice”
in this case is marked. Farr’s trial testimony was the centerpiece
of the Banks prosecution’s penalty-phase case. That testimony was
cast in large doubt by the declaration Banks ultimately obtained
from Farr and introduced in the federal habeas proceeding. Had
jurors known of Farr’s continuing interest in obtaining Deputy
Huff’s favor and his receipt of funds to set Banks up, they might
well have distrusted Farr’s testimony, and, insofar as it was
uncorroborated, disregarded it. The jury, moreover, did not benefit
from customary, truth-promoting precautions that generally accompany
informant testimony. Such testimony poses serious credibility
questions. This Court, therefore, has long allowed defendants broad
latitude to cross-examine informants and has counseled the use of
careful instructions on submission of the credibility issue to the
jury. See, e.g., On Lee v. United States,
343 U.S. 747, 757. The State’s argument that Farr’s informant
status was rendered cumulative by his impeachment at trial is
contradicted by the record. Neither witness called to impeach Farr
gave evidence directly relevant to Farr’s part in Banks’s
prosecution. The impeaching witnesses, moreover, were themselves
impeached, as the prosecution stressed on summation. Further, the
prosecution turned to its advantage remaining impeachment evidence
by suggesting that Farr’s admission of drug use demonstrated his
openness and honesty. Pp. 26—31.
(c) The lower courts wrongly denied Banks a
certificate of appealability with regard to his Brady claim
resting on the prosecution’s suppression of the September 1980 Cook
interrogation transcript. The Court of Appeals rejected Banks’s
contention that Rule 15(b) required the claim to be treated as
having been raised in the pleadings because the transcript
substantiating the claim had been aired at an evidentiary hearing
before the Magistrate Judge. The Fifth Circuit apparently relied on
the debatable view that Rule 15(b) is inapplicable in habeas
proceedings. This Court has twice assumed that Rule’s application in
such proceedings. Harris v. Nelson,
394 U.S. 286, 294, n. 5; Withrow v. Williams,
507 U.S. 680, 696, and n. 7. The Withrow District Court
had granted habeas on a claim neither pleaded, considered at “an
evidentiary hearing,” nor “even argu[ed]” by the parties. Id.,
at 695. This Court held that there had been no trial of the claim by
implied consent; and manifestly, the respondent warden was
prejudiced by the lack of opportunity to present evidence bearing on
the claim’s resolution. Id., at 696. Here, in contrast, the
issue of the undisclosed Cook interrogation transcript was aired at
a hearing before the Magistrate Judge, and the transcript was
admitted into evidence without objection. The Fifth Circuit’s view
that an evidentiary hearing should not be aligned with a trial for
Rule 15(b) purposes is not well grounded. Nor does this Court agree
with the Court of Appeals that applying Rule 15(b) in habeas
proceedings would undermine the State’s exhaustion and procedural
default defenses. Ibid. Under pre-AEDPA law, no inconsistency
arose between Rule 15(b) and those defenses. Doubtless, that is why
this Court’s pre-AEDPA cases assumed Rule 15(b)’s application in
habeas proceedings. See, e.g., ibid. While AEDPA forbids a
finding that exhaustion has been waived absent an express waiver by
the State,
28 U.S.C. § 2254(b)(3), pre-AEDPA law allowed waiver of both
defenses–exhaustion and procedural default–based on the State’s
litigation conduct, see, e.g., Gray v. Netherland,
518 U.S. 152, 166. To obtain a certificate of appealability, a
prisoner must demonstrate that reasonable jurists could disagree
with the district court’s resolution of his constitutional claims or
that the issues presented warrant encouragement to proceed further.
Miller-El v. Cockrell,
537 U.S. 322, 327. This case fits that description as to the
application of Rule 15(b). Pp. 31—34.
48 Fed. Appx. 104, reversed and remanded.
Ginsburg, J., delivered the opinion of the
Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy,
Souter, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ.,
joined as to Part III. Thomas, J., filed an opinion concurring in
part and dissenting in part, in which Scalia, J., joined.
index
BANKS v. DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
BANKS v. DRETKE, No. 02-8286 (U.S.S.C. February 24, 2004)
When police or prosecutors conceal significant exculpatory or
impeaching material in the State's possession, e.g., by withholding
evidence that would have allowed a defendant to discredit essential
prosecution witnesses, it is ordinarily incumbent on the State to
set the record straight. The Fifth Circuit erred in dismissing death
row inmate's Brady claim with respect to one such witness, and in
denying him a certificate of appealability with respect to another.
To read the full text of this opinion, go to:
http://laws.findlaw.com/us/000/02-8286.html
|
