Banks v. Thaler

• Decision Date: 18 September 2009
• Docket Number: No. 08-70019.,08-70019.
• Citation: 583 F.3d 295
• Parties: Delma BANKS, Jr., Petitioner-Appellee, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

583 F.3d 295

Delma BANKS, Jr., Petitioner-Appellee, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 08-70019.

United States Court of Appeals, Fifth Circuit.

September 18, 2009.

George H. Kendall (Court-Appointed), Samuel Spital, (argued), Holland & Knight, New York City, for Banks.

Katherine D. Hayes (argued), Austin, TX, for Thaler.

Appeal from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, BARKSDALE and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether Delma Banks, Jr., is entitled to habeas relief for his capital-murder conviction, because of the State's non-disclosure to Banks' counsel of the transcript of the prosecution's pre-trial interview of a key witness. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (addressing the suppression of favorable, material evidence).

The murder occurred in April 1980. That fall, a Texas state-court jury convicted Banks; he was sentenced to death. Legal proceedings in the nearly 30 years since have included a direct appeal, three state habeas petitions with two evidentiary hearings, two federal habeas proceedings with an evidentiary hearing, two opinions from our court, and one from the Supreme Court.

In 2004, the Court held: the State's suppressing a key punishment-phase witness' (Robert Farr's) police-informant status affected "the reliability of the jury's verdict regarding punishment", Banks v. Dretke, 540 U.S. 668, 703, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); and, therefore, Banks was entitled to habeas relief for his sentence. Id. at 705, 124 S.Ct. 1256. It also held: a certificate of appealability (COA) should have been granted regarding the State's suppressing a transcript of a key guilt-phase witness' (Charles Cook's) pre-trial interview with prosecutors and a law-enforcement officer (the Cook transcript); and, therefore, this matter was remanded to our court to consider whether, because of this suppression, Banks is also entitled to habeas relief for his conviction. Id. at 705-06, 124 S.Ct. 1256.

Accordingly, that same year, we rendered an opinion on an issue related to the claim for which the Court had granted the COA, Banks v. Dretke, 383 F.3d 272 (5th Cir.2004), and remanded this matter to district court "in order for it (1) to determine whether Banks' Cook-transcript Brady claim was tried by implied consent of the parties; and (2) if it was, to decide that claim". Id. at 281.

In this third proceeding in our court, the State contests the district court's on-remand April 2008 Brady-based grant of habeas relief for Banks' conviction. The district court concluded, inter alia: habeas relief should be granted because the State failed to disclose the Cook transcript to Banks for use in his trial.

Because Brady's materiality prong is not satisfied, the habeas relief for Banks' conviction is VACATED. The Court's grant of habeas relief for Banks' sentence is, of course, not affected by this opinion. This matter is remanded to district court for further proceedings consistent with this opinion.

VACATED IN PART and REMANDED.

I.

The facts and procedural history have been extensively discussed in numerous previous opinions. See, e.g., Banks v. Cockrell, 48 Fed.Appx. 104 (5th Cir.2002) (unpublished), rev'd, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). They are provided in great detail again, however, because proper analysis of the instant Cook-transcript Brady claim necessarily involves a careful review of them.

A.

On Friday evening, 11 April 1980, 16-year-old Richard Whitehead (the victim) and a 14-year-old female friend encountered 21-year-old Banks at a bowling alley, and agreed to give him a ride home. Departing in the victim's distinctive, multi-colored Mustang, the trio ended up drinking Coors beer together in a secluded park near Nash, Texas. Nash is approximately four miles west of Texarkana, Texas, and is located in Bowie County.

Around 11:00 p.m., the trio left the park and drove the victim's friend home. The victim and Banks left the friend's house in the Mustang; they briefly visited another of the victim's friends; and, shortly before midnight, the victim and Banks left that house together in the Mustang.

A few hours later, at about 4:00 a.m. on Saturday, 12 April, two gunshots were heard coming from the part of the park where the victim and Banks had been drinking beer. On 15 April, the victim's body was found in that portion of the park. He had been shot three times with what was later determined to be a .25 caliber Galesi pistol (one of the shots was between his eyes from very close range); his Mustang was missing; and empty cans of Coors beer were strewn about.

On Saturday morning, 12 April, Banks traveled approximately 175 miles to Dallas, Texas. He arrived by 8:30 a.m., about four and one-half hours after the gunshots had been heard. When Banks arrived in Dallas, he was driving a distinctive, multi-colored Mustang.

In Dallas, on the morning Banks arrived, Charles Cook and his wife were standing outside, waiting for a bus. Banks, who did not know them, pulled up in the Mustang and asked for directions. Cook talked Banks into giving his wife a ride to work, and the three departed in the Mustang. After dropping Cook's wife off at work, Cook and Banks continued to ride around together for much of the day; they visited some of Cook's acquaintances; and Banks stayed the next two nights with Cook and his family at Cook's grandparents' house in Dallas (Cook's house).

That Saturday, 12 April, while riding around Dallas in the Mustang, and after Cook noticed blood on one leg of Banks' trousers, Banks said he had shot a "white boy". That evening, Banks told Cook that he had "decided to kill the white boy for the hell of it and take his car and come to Dallas". Cook noticed that Banks had a pistol; the next evening (Sunday), Cook took the pistol away from Banks and hid it. It was later identified as the .25 caliber Galesi murder weapon.

On Sunday, 13 April, Banks made a collect call to his mother in Texarkana, from Cook's house; Banks' mother urged him to turn himself in. Later that weekend, Banks shared this information with Cook's neighbor, Bennie Lee Jones.

After spending Saturday and Sunday night with Cook, Banks was given money by Cook's wife; and, on Monday, 14 April, he boarded a Greyhound bus bound for Texarkana. (Nash, where Banks lived, is near Texarkana.) Early on Tuesday morning, 15 April (the day the victim's body was found near Nash), Cook abandoned the multi-colored Mustang in West Dallas; it was never recovered. Shortly thereafter, Cook sold Banks' .25 caliber Galesi pistol, along with some jumper cables and tools from the Mustang, to his neighbor, Jones.

Later that month, Banks telephoned Cook twice, in an attempt to recover his (Banks') pistol. On 23 April, Banks returned to Dallas. He traveled with two acquaintances, Farr and Marcus Jefferson; and, unknown to Banks, he was followed by law-enforcement personnel. Farr was Banks' girlfriend's brother-in-law. (As noted, he was also a paid police informant; this suppressed status was the basis for the Court's granting habeas relief for Banks' sentence.) Marcus Jefferson was Banks' girlfriend's brother.

Upon arriving in Dallas, Banks drove around, looking for Cook's house. Upon locating it, Banks went to the door of the house, while Farr and Marcus Jefferson waited in the vehicle; Banks asked Cook for his (Banks') gun; he returned to the vehicle; and they departed. In the vehicle, Banks told Farr and Marcus Jefferson: Cook didn't have his (Banks') gun because he had given it to someone else; and Cook, instead, gave Banks a .22 caliber pistol.

Departing from Cook's house, Banks, still traveling with Farr and Marcus Jefferson, apparently got lost trying to find the way back to the highway. The still-trailing law-enforcement personnel, after observing several traffic violations, initiated a traffic stop of Banks' vehicle. A .22 caliber pistol was recovered from the vehicle; Banks was arrested; and, after his arrest, Farr and Marcus Jefferson were released.

On 24 April, the day after Banks had attempted to retrieve his pistol from Cook, law-enforcement personnel: visited Cook; asked for Banks' pistol; and were taken, by Cook, to Jones' house. There, Jones returned the .25 caliber Galesi pistol to Cook, who provided it to the police. (This was the pistol later determined to be the murder weapon.)

B.

Banks was tried for capital murder in the fall of 1980. Between the April 1980 murder and Banks' trial, Cook provided an affidavit/statement on 24 April 1980 to law-enforcement personnel; and, prior to trial, he was interviewed by a law-enforcement officer and prosecutors, after which a transcript was made (the earlier-referenced Cook transcript).

The 24 April affidavit, provided the day after Cook was visited by Banks, Farr, and Marcus Jefferson, was given on the day Cook provided the murder weapon to the police. This statement consisted of a typed, two-page, single-spaced sworn affidavit (based on an initial, hand-written statement by Cook at the police station that same day), describing his interactions with Banks during the weekend following the murder; and an addendum, consisting of a one-paragraph sworn affidavit, confirming that the pistol reclaimed from Jones was Banks' pistol. At Banks' trial, his counsel received and reviewed the April 1980 affidavit prior to cross-examining Cook.

The pre-trial Cook-transcript at issue in this appeal is an undated, 38-page, typed transcript, not signed by Cook. It is the transcript of the pre-trial interview of Cook, conducted by members of the prosecution team and a law-enforcement investigator. It was not provided to Banks' counsel for the 1980 trial. It was, instead, produced pursuant to a discovery order in conjunction with Banks' 1999 federal...