March 7 TEXAS: Transcript at center of Banks' appeal arguments Delma Banks Jr.'s lawyers and state prosecutors are moving forward with the battle over whether Banks' conviction should be overturned. While Bank's death sentence for the April 1, 1980, slaying of Wayne Whitehead has been overturned, both sides are still arguing about the legality of Bank's actual conviction. The 5th U.S. Circuit Court of Appeals, acting on the direction of the U.S. Supreme Court, sent the matter back to U.S. District Judge David Folsom, in Texarkana, Texas. While Folsom had found Banks deserved a new sentencing phase, both Folsom and the 5th Circuit let the conviction stand. Key to the arguments is a transcript of a pretrial interview in September 1980 by investigators and a former prosecutor, days before Banks' trial began. The transcript surfaced when Bowie County Assistant District Attorney James Elliott sent it with other files to Banks' lawyers as part of the federal appeals process. "After nearly 25 years since his conviction and death sentence, Delma Banks Jr. returns to this court for adjudication of the due process claim that goes to the heart of the reliability of his conviction and the integrity of the process by which the state won it," Banks' lawyers said in court documents. "The record before the court establishes by all recognized standards that the crux of this claim, that for 19 years the state suppressed a transcript recording one of the several pre-trial rehearsal sessions between trial prosecutors and their star witness, Charles Cook, containing a treasure trove of impeachment material "litigated by consent of the parties ...'" But Assistant Texas Attorney General Kathryn Hayes disagrees. "The record here establishes that the issue was never litigated by consent; however, even if the court finds otherwise, the court should deny habeas relief because Banks cannot establish that the suppression of the Cook transcript undermined confidence in the jury's verdict at guilt/innocence," Hayes argues. Banks' lawyers argue that Cook was inconsistent with his story and required extensive coaching to prepare for his testimony. "Moreover, the suppressed transcript demonstrates that Charles Cook was an uncertain, inconsistent witness whose testimony required extensive coaching and rehabilitation. It contained statement after statement by both Cook and the trial prosecutors, which in the hands of defense counsel would have provided a powerful tool for impeaching the central prosecution witness against Banks, and whose revelation undermines confidence in the outcome of his trial," argue Banks' lawyers in court documents. Hayes disagrees that there were glaring inconsistencies between what he said in court and in the transcript. Hayes argues that Banks' lawyers, when they learned of the transcript three years after they began their federal appeals, did not make an effort to make it an appellate issue. "In fact, his opening statement at the hearing did not even refer to the suppression of impeachment evidence. And even though the court gave the parties a chance for closing arguments, Banks expressly declined, stating 'we think the best way to proceed at this point is to wait for the transcript and then file post-hearing brief,'" Hayes argues. The issue, Hayes argues, was raised in the proposed findings submitted to U.S. Magistrate Judge Caroline Craven. She says the issue of Cook was not so much the blanket use of the transcript but information that it contained tying Cook to a paid police informant, Robert Farr. Hayes also argues that Banks' lawyers never amended their appeal to include suppression of the Cook transcript once they discovered it. Banks' lawyers argue that once the transcript was disclosed, it took "center stage" in the litigation of Banks' appeal. They recall that it was included in their opening statement. "It is hard to fathom how the unpleaded Cook transcript claim could be the 'center' of the hearing when the questioning Banks points to amounts to only 8 pages whereas the hearing transcript is 344 pages long," Hayes argues. But Banks' lawyers believe they did what was legally necessary to have Folsom consider the suppression of the Cook transcript. It was entered as part of the evidence in Banks' appeals hearing without the objection of the Attorney General's office. They also recall that they objected to Folsom's refusal to overturn the conviction on the basis of the transcript following his ruling. Hayes argues that the transcript is neither favorable nor material. "First, Banks maintains that the 'rehearsed transcript' from September 1980 shows with unmistakable clarity that Cook was intensely coached for his appearance at trial, and that the state worked hard to twist Charles Cook's testimony into a story that jurors would find believable. However, Banks does not bother to direct the court to any examples of the state's allegedly improper conduct," Hayes argues. She says the interview was to see if Cook was going to be testifying consistently with the April 1980 statement he gave to police. She says that Banks did not need the transcript to impeach and/or discredit Cook during his testimony. That could have been handled by his defense lawyer through affidavits with police. She maintains that Banks' argument that he was unable to discredit Cooks by something other than the transcript is meritless. "Furthermore, had jurors known that Cook had spoken to prosecutors prior to his testimony about his encounter with Banks, that knowledge would have done nothing to undermine Cook's recollection of events," Hayes argues. "Jurors would have simply been made aware that, as with the many great majority of criminal cases, prosecutors have conducted witness interviews to determine what their witness' testimony might be," Hayes argues. She argues in court documents that information that Cook told jurors was independently backed up with other evidence or testimony. "Banks apparently chooses to disregard the wealth of evidence corroborating Cook's testimony, evidence which the jury relied upon in convicting Banks of capital murder," Hayes argues. But Banks' lawyers disagree. "Charles Cook's credibility at trial was the linchpin of the state's effort to persuade jurors to convict Mr. Banks of capital murder," argue Banks' lawyers. "It was only through him that the jury would learn that Mr. Banks made damning admissions about having committed the crime; likewise, it was only Cook who was able to direct law enforcement officers to the pistol prosecutors claimed was the murder weapon." Banks' lawyers allege that prosecution, which was led by now deceased District Attorney Louis Rafaelli and four assistants who had the case at different times, believed they could only win the case by cheating. They consider the case against Banks circumstantial based on Cook, a witness who should have been able to be discredited with the transcript. (source: Texarkana Gazette) MISSOURI----new death sentence Man Sentenced in Mo. Girl's Murder A drifter who fatally bludgeoned a 6-year-old girl at the ruins of an old glass factory was sentenced Monday to death by injection. Johnny Johnson, 26, has admitted that he crushed Cassandra "Casey" Williamson's skull with rocks and bricks in July 2002 after she resisted his attempt to sexually attack her. He had spent the night at the child's father's home and carried her piggyback to the factory's ruins near her home in Valley Park, a St. Louis suburb. He buried her body at the scene. Johnson was convicted by a jury in January for murder, kidnapping and attempted rape. The jury recommended the death sentence that was imposed Monday by Judge Mark Seigel. Johnson's attorneys had argued the high school dropout's life should be spared because of his mental illness. Mental health experts said his illness was not severe enough to prevent him from distinguishing between right and wrong. (source: Associated Press) INDIANA: Kubsch retried for triple murder The death penalty case against Wayne Kubsch was given new life when his earlier conviction was overturned on appeal. Kubsch is now being retried in St. Joseph County, for the September 1998 murders of his wife, Beth Kubsch, her ex-husband, Rick Milewski, and their 10-year-old son Aaron Milewski. This is actually just one of 3 triple murder cases that appeals courts want fresh juries to re-examine because of mistakes made during the original trials. Monday's testimony centered on the brutal blood spattered crime scene at the Mishawaka home of Beth and Wayne Kubsch, details that a new set of jurors heard for the 1st time, details that have become all too familiar to relatives of the murder victims. "To go through this again is very painful," said George Thompson, Beth's father. In fact, at one point, Thompson was counseled not to cry in court because that might serve as the basis for a future appeal. "We felt like the verdict was right the 1st time," added Thompson. But the Indiana Supreme Court disagreed, not because the original jury saw a video taped statement Kubsch gave police shortly after the crimes, but because jurors saw a little too much of that statement. "Everything the defendant said in that statement is admissible, not the part where the defendant makes reference to contacting an attorney," said Michael Dvorak, St. Joseph County Prosecutor. So attorneys are back in court trying Kubsch for a second time. And it's just one of three triple murder cases they'll have to re-handle. In the months to come "three triple murder cases, and to have all 3 come back from court of appeals or supreme court, is certainly unusual, and places a particular burden on those to retry those cases," said Dvorak. About the only saving grace for the prosecutor's staff, is that the current murder rate right about half of what it typically is. They can concentrate on past cases, with fewer new cases coming in. One other case will have to be re-tried thanks to appeals court rulings, the case against Christopher Allen for the 1990 murders at a South Bend Osco Drug Store. And a jury will have to be seated, to re-handle the penalty phase in the death penalty case against Phillip Stroud whose conviction for the 2000 triple homicides at a Lakeville farmhouse remain in tact. Only his death sentence was thrown out. (source: WNDU TV News) USA: Ending the Death Penalty for Juveniles Is Not Enough The most important aspect of the recent U.S. Supreme Court ruling on the constitutionality of executing juveniles was its consideration of evolving international views of "cruel and unusual punishment." The court wisely noted the rising global tide of revulsion against governments killing their younger citizens, no matter what their crime, and ruled that juvenile death sentences in the United States are unconstitutional. Similarly, in the future, the court should heed burgeoning world condemnation of the U.S. death penalty for persons of any age. Since 1990, the United States has been in the deplorable company of the few remaining nations - Iran, China, Congo, Yemen, Nigeria, Pakistan, and Saudi Arabia - that still put young people to death for crimes. America, famous for the extent of its individual freedoms, should not be on any list with such despotic third world abusers of human rights. In fact, Justice Anthony Kennedy, who wrote the majority opinion for the court, noted the "stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Yet why stop at ending the death penalty only for juveniles? The United States is also one of a small group of countries, many of which are severe abusers of human rights, that allow the death penalty to be used at all. The United States needs to exit this nefarious club, too. As discussed at a recent Independent Institute policy forum, "The Death Penalty on Trial," rising world opposition to the death penalty is not the only reason for ending it within U.S. borders; opposition to this ultimate sanction is also increasing domestically. The principal reason is the incompetence of the government in carrying out the penalty. DNA tests of inmates on death row have exonerated a sizeable number of individuals. Add to this the disproportionate and unfair sentencing of African-Americans to death. Finally, rigorous studies have shown that the death penalty does not deter future capital crimes. Then despite the softening of public support for capital punishment, why do many Americans still support a barbaric penalty that belongs in a previous century? The answer is simple: a desire for revenge. Many people believe that violent individuals who commit heinous crimes - such as Christopher Simmons, the 17-year old defendant in the case before the Supreme Court, who broke into a woman's house and murdered her by throwing her into a river bound and gagged - deserve to be executed. Simmons, and individuals like him, deserve to be severely punished for their atrocious deeds. As an opponent of the death penalty, I have been asked whether I would desire revenge on the murderer of a close friend or family member. That question is not the relevant one though. The critical question is whether society is better off if I do so or if the state does it for me. The answer is an emphatic "no." It is dangerous to give governments - whether state or federalthe power to kill people. And it's not only because of their aforementioned incompetence in convicting the right people. Today, such governments within the United States have vastly more power than the nation's Founders originally intended. They could easily misuse that power to execute people for political reasons. If you think this possibility is remote in the United States, just think about political pressures after 9/11 to do something about "terrorists." The Bush administration jailed people indefinitely without charging them, giving them access to a lawyer, or trying them in an independent court that would give them due process. The administration's kangaroo military tribunals - which have been specifically created outside the normal civilian or military justice systems, don't meet such standards of due process, and are run by people who ultimately report to President Bush - can hand down death sentences. And, in the wake of another catastrophic terrorist incident, the political pressure for the government to mete out death sentences would be intense. Yet significant numbers of people held after 9/11 without due process have already been released because they ultimately were not found to be terrorists. Therefore, in the wake of a future 9/11-style terrorist attack, if the death penalty has not been abandoned or ruled unconstitutional, many innocent people could be rounded up and executed for political reasons - that is, to show the public that the government is "doing something" about terrorism. Unlike the use of other sentences, the death penalty does not permit errors to be corrected after the fact. In a new century with world opinion changing, it is dangerous to allow usually inept governments to have the authority to kill their citizens for any reason, especially when the death penalty does not deter future violent crime, is applied unfairly on the basis of race or religion, and is not reversible. In forbidding the use of death sentences for juveniles, the Supreme Court is following enlightened trends in popular opinion. The court should also note the growing public disapproval of capital punishment in general. This anachronistic and barbaric practice should be ended so that America - one of the freest nations on earth - can rejoin the civilized world. (source: Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute in Oakland, California, and author of the books The Empire Has No Clothes, and Putting "Defense" Back into U.S. Defense Policy; The Independent)
