University of Southern California

The Right to a Complete Defense: A Special Brady Rule in Capital Cases

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Note by Scott Hardy
From Volume 87, Number 6 (September, 2014)

In 1980, twenty-one-year-old Delma Banks, Jr. was convicted of murdering sixteen-year-old Richard Whitehead outside of Nash, Texas and was sentenced to death for his crime. During the penalty phase of Banks’s trial, the question that would determine whether Banks was eligible for a death sentence was whether a probability existed that he would commit other violent crimes and continue to pose a threat to society if allowed to live. Robert Farr was an essential witness for the prosecution on this point. Farr testified that, before Banks was arrested, Farr had traveled with Banks to Dallas to pick up a pistol that he and Banks needed to commit a series of robberies they were planning. “According to Farr, Banks ‘said he would take care of it’ if ‘there was any trouble during these burglaries.’” On cross-examination, Farr perjured himself twice when asked if he had provided information about the trip to a deputy sheriff, answering that he had not. The state remained silent during this questioning.

In 1999, Farr finally admitted that he had helped the deputy sheriff in exchange for about $200 and the hope that he would be let off on drug charges. In a plan to help the deputy sheriff locate Banks’s gun, which law enforcement believed had been used in the murder of Whitehead, Farr had instigated the trip to Dallas with Banks. To this end, Farr falsely told Banks that he planned to commit a robbery for which he would need the gun. The only other evidence offered to support Banks’s future dangerousness at trial was another witness’s testimony that, at one point, “Banks had struck him across the face with a gun and threatened to kill him.” Thus, the prosecution had relied heavily on Farr’s testimony to secure a death sentence.

In 1996, Banks filed a petition for a writ of habeas corpus in the Eastern District of Texas, alleging, among other things, that the prosecution had violated his constitutional rights by withholding material exculpatory information regarding Farr’s status as a police informant in violation of Brady v. Maryland. A magistrate judge recommended that Banks’s sentence, but not his conviction, be overturned based on the evidence of Farr’s informant status. The District Court agreed. In an unpublished per curiam opinion, the Court of Appeals for the Fifth Circuit reversed the District Court, in part because it found the evidence of Farr’s informant status immaterial. The United States Supreme Court reversed, finding that, “[h]ad Farr not instigated, upon [the sheriff’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.” Thus, the evidence in question, which was important for impeachment purposes, was found to be material, and the prosecution’s failure to disclose it constituted a constitutional violation that invalidated Banks’s sentence.

In 2012, the prosecution agreed to stop pursuing a death sentence, and Banks agreed to accept a life sentence. He will be eligible for parole in 2024. Thus, the Court’s determination that a Brady violation had occurred spared Banks’s life. But the Supreme Court cannot be relied upon to swoop in at the last minute and save the day for all defendants. This case illustrates a problem with Brady: the materiality requirement can sometimes prevent relief for defendants who have been denied access to important information because the standard for materiality is strict and not entirely clear, even to federal judges. These problems are particularly troubling when a defendant’s life is at stake.

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