## Facts

- Delma Banks, Jr. was convicted in Texas state court of capital murder and sentenced to death.
- At the guilt phase, the prosecution relied on Charles Cook, who testified Banks admitted killing a man and leaving the murder weapon with Cook.
- Cook repeatedly denied having discussed or rehearsed his testimony with anyone.
- The State did not disclose a pretrial transcript showing that law enforcement and prosecutors coached Cook and rehearsed his testimony, and the State did not correct Cook’s false denials.
- At the penalty phase, the prosecution relied on Robert Farr, who testified about Banks’s stated intent to obtain a gun and commit robberies and to respond violently if confronted.
- The State argued Farr was credible and emphasized his testimony in support of a future dangerousness finding.
- The State did not disclose that Farr was a paid informant whose cooperation helped lead police to evidence about Banks’s trip to Dallas, and it did not correct the misleading impression that Farr was not cooperating with police for compensation.
- The prosecution had represented it would provide discovery to which Banks was entitled, yet withheld impeachment material about both witnesses.
- In federal habeas proceedings (filed pre-AEDPA), Banks raised Brady claims based on the nondisclosures; the district court granted relief from the death sentence based on Farr but rejected the Cook claim as not properly pleaded.
- The Fifth Circuit reversed, holding the Farr Brady claim procedurally barred for failure to present it first in state court, and it rejected using Federal Rule of Civil Procedure 15(b) to treat the Cook claim as tried by consent in habeas.

## Issues

1. Whether Banks’s Brady claim concerning Farr’s paid-informant status was barred by state procedural default, and if so, whether Banks established cause and prejudice to excuse the default.
2. Whether Banks was entitled to pursue a Brady claim based on the suppressed Cook coaching transcript in federal habeas, including whether Rule 15(b) could allow treatment of the claim as amended to conform to the evidence introduced at a habeas evidentiary hearing.
3. Whether the suppressed impeachment evidence was material under Brady as to guilt and/or punishment.

## Decision

- The Supreme Court reversed the Fifth Circuit in a 7–2 decision.
- The Court held Banks established cause and prejudice sufficient to overcome any procedural default of the Farr Brady claim because the State concealed the claim’s factual basis and maintained that concealment through state review.
- On the merits, the Court held the suppression of Farr’s paid-informant status was material impeachment evidence under Brady and warranted habeas relief from Banks’s death sentence.
- The Court held a certificate of appealability should have issued on the Cook Brady issue at least as to the application of Rule 15(b), and it remanded for further proceedings consistent with its opinion.

## Legal Principles

- Due process is violated when the prosecution suppresses evidence favorable to the accused, including impeachment evidence, that is material to guilt or punishment under Brady.
- Brady materiality turns on whether there is a reasonable probability that disclosure would have produced a different result.
- A state’s concealment of Brady material can establish “cause” to excuse procedural default, and material Brady prejudice can satisfy the “prejudice” component of the cause-and-prejudice standard.
- When the prosecution permits materially misleading testimony about witness cooperation or inducements to stand uncorrected, it aggravates the Brady violation and bears on cause, prejudice, and materiality.
- A defendant is not required to search for undisclosed Brady material where the State has represented it will provide required discovery.
- In pre-AEDPA habeas practice, Rule 15(b) may permit treatment of an issue as tried by consent when evidence is developed at an evidentiary hearing, at least for purposes of determining whether appellate review should be allowed.

## Conclusion

The Court held that the State’s suppression of key impeachment evidence about a penalty-phase witness excused any procedural default and undermined confidence in the death sentence under Brady, and it required further consideration of a related Brady claim concerning a coached guilt-phase witness, including the potential use of Rule 15(b) principles in pre-AEDPA habeas proceedings.


Banks v. Dretke, 540 U.S. 668 (2004)