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Pity defender of Texas justice

The Delma Banks case

Houston Chronicle, Dec 10, 2003

You can take your pick of people to feel sorry for in the case of Delma Banks Jr.
You can and should feel sorry for the family of Richard Wayne Whitehead, who was 16 when he was murdered in 1980.
You can feel sorry for Banks, who has sat on Texas' death row for more than two decades for a murder he says he didn't commit.
And you can feel sorry for Gena A. Bunn, the assistant Texas attorney general who had the misfortune of defending Banks' conviction Monday before the U.S. Supreme Court.
She's the one who had to stand up with a straight face and argue that the state of Texas should be able to suborn perjury and hide evidence with impunity in its quest to get the death penalty.
She had to argue that it didn't matter that prosecutors stood silent as their key witnesses lied to the jury.
She had to argue that even though the district attorney's office hid the proof of a lie to Banks' attorneys until 1999, he should not be able to raise the issue now because he failed to do so in earlier appeals.
It's possible Bunn was startled. Those arguments had actually worked at the Texas Court of Criminal Appeals and the 5th U.S. Circuit Court of Appeals.

But not at the Supreme Court.
The justices didn't exactly laugh her out of court, but they certainly made her squirm.
"Wasn't it the obligation of the prosecution, having deceived the jury and the court, to come clean?" asked Justice Ruth Bader Ginsburg.
"So the prosecution can lie and conceal, and the defense still has the burden to discover the evidence?" Justice Anthony M. Kennedy asked in what one reporter called a tone of incredulity.
Justice Stephen G. Breyer got to the heart of the issue: "What bothers me about your position is that if we were to say that defense counsel behaves unreasonably if he relies on the prosecution, that's to say that the justice system lacks integrity, and indeed it might contribute to that lack of integrity."
Not an easily digested sound bite, but what he's saying is this:
The court would be upholding and even encouraging a dishonest system if it rules that the prosecutor suffers no consequence for suborning perjury if he hides the evidence long enough.
For a long time courts have understood -- until relatively recently, even Texas courts -- that the only way to discourage police and prosecutors from misbehaving is to make them suffer a consequence through rulings.
If police conduct illegal searches, the fruits of those searches are not allowed at trial.
If prosecutors break serious rules or violate rights in presenting a case, the conviction is thrown out.
Since prosecutors will almost never be indicted for suborning perjury and police will almost never be indicted for bad-faith searches that amount to burglary, such sanctions are the only real discipline they face.
But in recent years the Texas Court of Criminal Appeals and the 5th U.S. Circuit have brushed that traditional wisdom aside.
They've expanded the notion of "harmless error" beyond reasonable bounds. They've shifted the burden. Once a person is convicted, despite misbehavior by prosecutors, he must prove that no reasonable juror would have convicted if the prosecutor had not misbehaved.
Worse, the decision of what a "reasonable juror" may have done is made by the likes of Court of Criminal Appeals Chief Judge Sharon Keller. She's the one who ruled that DNA showing the sperm was not that of a man convicted of rape was not determinative because he might have worn a condom.
In Texas, once you're convicted, even if by fraud, the standard is no longer "beyond a reasonable doubt."
It's: "You might have done it."
Happily, the U.S. Supreme Court appears to have other notions.

Column, Rick Casey, Houston Chronicle
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