Five years ago I asked readers to feel sorry for Assistant Attorney General Gena Bunn.Now I'm asking you to feel sorry for Assistant Attorney General Katherine Hayes.
It was Bunn's job, I wrote, to go "with a straight face" before the U.S. Supreme Court in the case of death row inmate Delma Banks "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 admit that prosecutors had stood silent while two key witnesses lied under oath during Banks' two-day trial in 1980 for the murder of a 16-year-old co-worker.
She argued that defense attorneys had waited too long to raise the issue, even though the delay was caused by the prosecutors' cover-up of the evidence.
The justices were not receptive.
"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?" challenged Justice Anthony M. Kennedy.
The arguments advanced by Bunn had worked at the prosecution-oriented U.S. 5th Circuit Court of Appeals, but Bunn found no sympathy at the Supreme Court. It took that body — including archconservatives Antonin Scalia and Clarence Thomas — just 10 weeks to issue a stinging slap to the state of Texas and to the 5th Circuit.
In the unanimous opinion, Ginsburg wrote that it was "appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for getting a conviction."
The court sent the case back down, ordering a full examination of the facts to determine whether Banks should get a new trial. It also overturned the death sentence. (Scalia joined Thomas in dissenting from this portion, though Thomas called it a "close call.")
After examining the evidence and hearing arguments from both sides, U.S. District Judge David Folsom of Texarkana ruled that Banks must be either retried or freed.
He noted that Charles Cook was a key witness at the trial, being the only witness to testify that Banks had said he killed the victim and the only one to provide a motive.
And, wrote Folsom, "Cook's testimony on these issues was uncorroborated."
It is undisputed that on the stand Cook said three times he had not talked to anyone before giving his testimony. For 16 years, prosecutors hid proof that Cook was lying.
Only in 1996, under a federal court order, did they turn over a 38-page transcript of a coaching session Cook received just days before he testified. Present were a prosecutor, a DA's investigator and the deputy who led the murder investigation.
Quoting the transcript, Folsom writes: "Cook's misrepresentation at trial — claiming that he had not been coached — is particularly significant in light of how extensively Cook was coached."
For example, a number of things Cook said during that session differed from the statements he had given originally, the kinds of inconsistencies defense attorneys thrive on.
What's more, Cook admitted on the stand he had been convicted of felony assault but "forgot" who the victim was.
Yet during the coaching session a few days earlier he had identified her as a schoolteacher. The AG's office argued that Cook thought the defense attorney was asking for a name, but Folsom wrote that the "name is clearly not what the defense was seeking."
And a handwritten note by one of Cook's handlers on the coaching session transcript next to the mention of the schoolteacher said, "do not say."
Prosecutors didn't want the jurors knowing their star witness beat up schoolteachers.
(Yesterday) Assistant Attorney General Hayes (appeared) in New Orleans and, based on a technicality, ask the 5th Circuit Court of Appeals to overturn Folsom.
A major argument amounts to raising a technicality. The state argues that Banks' attorneys didn't give proper notice that they were using the coaching transcript in their case.
Having hidden the damning transcript for 16 years, prosecutors are saying defense attorneys aren't playing fair.
Both a federal magistrate and Judge Folsom ruled that proper notice was given when Banks' attorneys, without objection from the state, introduced the transcript at an earlier hearing and asked witnesses numerous questions about it.
Hayes may get a favorable reception in New Orleans. It's the same three-judge panel that didn't see any problems years ago. But then this already outrageously long legal process will go back to the high court.
There's a better course. Shouldn't Attorney General Greg Abbott, whose job presumably bears some relationship to the pursuit of justice, be chastising prosecutors for breaking the law rather than defending them?
I certainly hope all of the Republicans who read and comment at Chron.com remember this when Abbott announces his intention to run for re-election (or lt. governor, or governor) in 2010 and beyond.
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