American-Statesman, Austin February 29 2004

Crooked prosecutors taint Texas justice system Editorial The case of Texas death row inmate Delma Banks illustrates just how far across legal and ethical lines a prosecution team can stray to win a conviction. But an equally appalling revelation in the case is how such cheating was excused and defended by state and federal appellate courts. It took the U.S. Supreme Court to clean up this mess. If the Texas judicial system is unwilling to curb prosecutors who hide evidence and permit their witnesses to lie under oath, then the State Bar of Texas, which is responsible for disciplining lawyers, should hold them accountable. Furthermore, Attorney General Greg Abbott should not expend taxpayers' resources defending cases of those prosecutors who suborn perjury and suppress evidence. Texas cannot claim its system is one of laws when the people charged with upholding the laws can twist or break them with impunity for a particular outcome. That's what happened in the Banks case. All defendants are entitled to a fair trial, and it's obvious that Banks didn't get one. Last week, the Supreme Court reversed the death sentence imposed on Banks. Last year, Banks came within 10 minutes of being executed when the high court intervened amid indications that he might be innocent. Seven of nine Supreme Court justices found that Bowie County prosecutors had violated Banks' constitutional rights by withholding evidence for nearly 2 decades and allowing key witnesses to lie in the 1980 slaying of a Texarkana teenager. Banks, an African American who has spent more than 20 years on Texas' death row, was convicted by an all-white jury of robbing and killing 16-year-old Richard Whitehead. That Banks' case had to go to the highest level of the judicial chain, fighting for the fundamental right of a fair trial, is an indictment of the Texas Court of Criminal Appeals, the state attorney general's office and the 5th U.S. Circuit Court of Appeals, which took the incredible position that it didn't matter that prosecutors cheated to win because Banks' time for appealing that important issue had run out. Writing for the majority, Justice Ruth Bader Ginsburg found the appropriate focus: "A rule declaring 'prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process." Were this case an anomaly, it wouldn't be such a blow to Texas justice. But cases that involve prosecutors who blatantly disregard the Constitution are becoming an all too familiar scenario. Last year, the Supreme Court ordered the 5th Circuit Court to reconsider the case of Thomas Miller-El, an African American on death row who argued that Dallas prosecutors had violated his constitutional rights by deliberately purging the jury of qualified black people. In another case, the public is awaiting the outcome of a State Bar investigation of a West Texas prosecutor who is accused of winning convictions against dozens of African American residents of Tulia in part by allowing a key witness to lie to jurors and by concealing information. Because frontline courts are upholding convictions by cheating prosecutors, they are encouraging more of the same. Texas courts, judges and state leaders must curb this serious threat to our justice system. Justice cannot prevail in a system where the law is trumped by men. (source: Editorial, Austin American-Statesman)