BANKS v. DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
No. 02-8286
Supreme Court of the United States
Argued December 8, 2003—Decided February 24, 2004
540 U.S. 668
George H. Kendall argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Janai S. Nelson, Miriam Gohara, and Clifton L. Holmes.
Gena Bunn, Assistant Attorney General of Texas, argued the cause for respondent. With her on the brief were Greg Abbott, Attorney General, Barry R. McBee, First Assistant Attorney General, Jay Kimbrough, Deputy Attorney General, and Edward L. Marshall and Katherine D. Hayes, Assistant Attorneys General.*
JUSTICE GINSBURG delivered the opinion of the Court.
Petitioner Delma Banks, Jr., was convicted of capital murder and sentenced to death. Prior to trial, the State advised
Furthermore, the prosecution raised no red flag when the informant testified, untruthfully, that he never gave the police any statement and, indeed, had not talked to any police officer about the case until a few days before the trial. Instead of correcting the informant‘s false statements, the prosecutor told the jury that the witness “ha[d] been open and honest with you in every way,” App. 140, and that his testimony was of the “utmost significance,” id., at 146. Similarly, the prosecution allowed the other key witness to convey, untruthfully, that his testimony was entirely unrehearsed. Through direct appeal and state collateral review proceedings, the State continued to hold secret the key witnesses’ links to the police and allowed their false statements to stand uncorrected.
Ultimately, through discovery and an evidentiary hearing authorized in a federal habeas corpus proceeding, the long-suppressed evidence came to light. The District Court granted Banks relief from the death penalty, but the Court of Appeals reversed. In the latter court‘s judgment, Banks had documented his claims of prosecutorial misconduct too late and in the wrong forum; therefore he did not qualify for federal-court relief. We reverse that judgment. When police or prosecutors conceal significant exculpatory or im-
I
On April 14, 1980, police found the corpse of 16-year-old Richard Whitehead in Pocket Park, east of Nash, Texas, a town in the vicinity of Texarkana. Id., at 8, 141.1 A preliminary autopsy revealed that Whitehead had been shot three times. Id., at 10. Bowie County Deputy Sheriff Willie Huff, lead investigator of the death, learned from two witnesses that Whitehead had been in the company of petitioner, 21-year-old Delma Banks, Jr., late on the evening of April 11. Id., at 11-15, 144; Banks v. State, 643 S. W. 2d 129, 131 (Tex. Crim. App. 1982) (en banc), cert. denied, 464 U. S. 904 (1983). On April 23, Huff received a call from a confidential informant reporting that “Banks was coming to Dallas to meet an individual and get a weapon.” App. 15. That evening, Huff and other officers followed Banks to South Dallas, where Banks visited a residence. Ibid.; Brief for Petitioner 3. Police stopped Banks‘s vehicle en route from Dallas, found a handgun in the car, and arrested the car‘s occupants. App. 16. Returning to the Dallas residence Banks had visited, Huff encountered and interviewed Charles Cook and recovered a second gun, a weapon Cook said Banks had left with him several days earlier. Ibid. Tests later identified the second gun as the Whitehead murder weapon. Id., at 17.
In a May 21, 1980, pretrial hearing, Banks‘s counsel sought information from Huff concerning the confidential informant who told Huff that Banks would be driving to Dallas. Id., at 21. Huff was unresponsive. Ibid. Any information that might reveal the identity of the informant, the prosecu-
The guilt phase of Banks‘s trial spanned two days in September 1980. See Brief for Petitioner 2; App. to Pet. for Cert. C3. Witnesses testified to seeing Banks and Whitehead together on April 11 in Whitehead‘s green Mustang, and to hearing gunshots in Pocket Park at 4 a.m. on April 12. Banks v. State, 643 S. W. 2d, at 131. Charles Cook testified that Banks arrived in Dallas in a green Mustang at about 8:15 a.m. on April 12, and stayed with Cook until April 14. App. 42-43, 47-53. Cook gave the following account of Banks‘s visit. On the morning of his arrival, Banks had blood on his leg and told Cook “he [had] got into it on the highway with a white boy.” Id., at 44. That night, Banks confessed to having “kill[ed] the white boy for the hell of it and take[n] his car and come to Dallas.” Id., at 48. During their ensuing conversation, Cook first noticed that “[Banks] had a pistol.” Id., at 49. Two days later, Banks left Dallas by bus. Id., at 52-53. The next day, Cook abandoned the Mustang in West Dallas and sold Banks‘s gun to a neighbor. Id., at 54. Cook further testified that, shortly before the police arrived at his residence to question him, Banks had revisited him and requested the gun. Id., at 57.
On cross-examination, Cook three times represented that he had not talked to anyone about his testimony. Id., at 59. In fact, however, Cook had at least one “pretrial practice sessio[n]” at which Huff and prosecutors intensively coached Cook for his appearance on the stand at Banks‘s trial. Id., at 325, ¶ 10, 381-390; Joint Lodging Material 1-36 (transcript of pretrial preparatory session). The prosecution allowed Cook‘s misstatements to stand uncorrected. In its guilt-
In addition to Cook, Robert Farr was a key witness for the prosecution. Corroborating parts of Cook‘s account, Farr testified to traveling to Dallas with Banks to retrieve Banks‘s gun. Id., at 34-35. On cross-examination, defense counsel asked Farr whether he had “ever taken any money from some police officers,” or “give[n] any police officers a statement.” Id., at 37-38. Farr answered no to both questions; he asserted emphatically that police officers had not promised him anything and that he had “talked to no one about this [case]” until a few days before trial. Ibid. These answers were untrue, but the State did not correct them. Farr was the paid informant who told Deputy Sheriff Huff that Banks would travel to Dallas in search of a gun. Id., at 329; App. to Pet. for Cert. A4, A9. In a 1999 affidavit, Farr explained:
“I assumed that if I did not help [Huff] with his investigation of Delma that he would have me arrested for drug charges. That‘s why I agreed to help [Huff]. I was afraid that if I didn‘t help him, I would be arrested. . . .
“Willie Huff asked me to help him find Delma‘s gun. I told [Huff] that he would have to pay me money right away for my help on the case. I think altogether he gave me about $200.00 for helping him. He paid me some of the money before I set Delma up. He paid me the rest after Delma was arrested and charged with murder. . . .
“In order to help Willie Huff, I had to set Delma up. I told Delma that I wanted to rob a pharmacy to get drugs and that I needed his gun to do it. I did not really plan to commit a robbery but I told Delma this so that he would give me his gun. . . . I convinced Delma to drive to Dallas with me to get the gun.” App. 442-443, ¶¶ 6-8.
The penalty phase ran its course the next day. Ibid. Governed by the Texas statutory capital murder scheme applicable in 1980, the jury decided Banks‘s sentence by answering three “special issues.” App. 142-143.3 “If the jury unanimously answer[ed] ‘yes’ to each issue submitted, the trial court [would be obliged to] sentence the defendant to death.” Penry v. Lynaugh, 492 U. S. 302, 310 (1989) (construing Texas’ sentencing scheme);
On this question, the State offered two witnesses, Vetrano Jefferson and Robert Farr. Id., at 104-113. Jefferson testified that, in early April 1980, Banks had struck him across
On cross-examination, defense counsel twice asked whether Farr had told Deputy Sheriff Huff of the Dallas trip. Ibid. The State remained silent as Farr twice perjuriously testified: “No, I did not.” Ibid. Banks‘s counsel also inquired whether Farr had previously attempted to obtain prescription drugs by fraud, and, “up tight over that,” would “testify to anything anybody want[ed] to hear.” Id., at 110. Farr first responded: “Can you prove it?” Ibid. Instructed by the court to answer defense counsel‘s questions, Farr again said: “No, I did not. . . .” Ibid.
Two defense witnesses impeached Farr, but were, in turn, impeached themselves. James Kelley testified to Farr‘s attempts to obtain drugs by fraud; the prosecution impeached Kelley by eliciting his close relationship to Banks‘s girlfriend. Id., at 124-129. Later, Kelley admitted to being drunk while on the stand. App. to Pet. for Cert. A13. Former Arkansas police officer Gary Owen testified that Farr, as a police informant in Arkansas, had given false information; the prosecution impeached Owen by bringing out his pending application for employment by defense counsel‘s private investigator. App. 129-131.
Banks‘s parents and acquaintances testified that Banks was a “respectful, churchgoing young man.” App. to Pet. for Cert. A7; App. 137-139. Thereafter, Banks took the stand. He affirmed that he had “never before been con-
During summation, the prosecution intimated that Banks had not been wholly truthful in this regard, suggesting that “a man doesn‘t travel two hundred miles, or whatever the distance is from here [Texarkana] to Dallas, Texas, to supply a person with a weapon.” Id., at 143. The State homed in on Farr‘s testimony that Banks said he would “take care” of any trouble arising during the robbery:
“[Farr] said, ‘Man, you know, what i[f] there‘s trouble?’ And [Banks] says, ‘Don‘t worry about it. I‘ll take care of it.’ I think that speaks for itself, and I think you know what that means. . . . I submit to you beyond a reasonable doubt that the State has again met its burden of proof, and that the answer to question number two [propensity to commit violent criminal acts] should also be yes.” Id., at 140, 144. See also id., at 146-147.
Urging Farr‘s credibility, the prosecution called the jury‘s attention to Farr‘s admission, at trial, that he used narcotics. Id., at 36, 140. Just as Farr had been truthful about his drug use, the prosecution suggested, he was also “open and honest with [the jury] in every way” in his penalty-phase testimony. Id., at 140. Farr‘s testimony, the prosecution emphasized, was “of the utmost significance” because it
The jury answered yes to the three special issues, and the judge sentenced Banks to death. The Texas Court of Criminal Appeals denied Banks‘s direct appeal. 643 S. W. 2d, at 135. Banks‘s first two state postconviction motions raised issues not implicated here; both were denied. Ex parte Banks, No. 13568-01 (Tex. Crim. App. 1984); Ex parte Banks, 769 S. W. 2d 539, 540 (Tex. Crim. App. 1989).
Banks‘s third state postconviction motion, filed January 13, 1992, presented questions later advanced in federal court and reiterated in the petition now before us. App. 150. Banks alleged “upon information and belief” that “the prosecution knowingly failed to turn over exculpatory evidence as required by [Brady v. Maryland, 373 U. S. 83 (1963)]“;5 the withheld evidence, Banks asserted, “would have revealed Robert Farr as a police informant and Mr. Banks’ arrest as a set-up.” App. 180, ¶ 114 (internal quotation marks omitted). In support of this third state-court postconviction plea, Banks attached an unsigned affidavit from his girlfriend, Farr‘s sister-in-law Demetra Jefferson, which stated that Farr “was well-connected to law enforcement people,” and consequently managed to stay out of “trouble” for illegally obtaining prescription drugs. Id., at 195, ¶ 7. Banks alleged as well that during the guilt phase of his trial, the State deliberately withheld information “critical to the jury‘s assessment of Cook‘s credibility,” including the “generous
The State‘s reply to Banks‘s pleading, filed October 6, 1992, “denie[d] each and every allegation of fact made by [Banks], except those supported by official court records and those specifically admitted.” Id., at 234; Tr. of Oral Arg. 32. “[N]othing was kept secret from the defense,” the State represented. App. 234. While the reply specifically asserted that the State had made “no deal with Cook,” ibid., the State said nothing specific about Farr. Affidavits from Deputy Sheriff Huff and prosecutors accompanied the reply. Id., at 241-243. The affiants denied any “deal, secret or otherwise, with Charles Cook,” but they, too, like the State‘s pleading they supported, remained silent about Farr. Ibid.
In February and July 1993 orders, the state postconviction court rejected Banks‘s claims. App. to Pet. for Cert. E1-E9, G1-G7. The court found that “there was no agreement between the State and the witness Charles Cook,” but made no findings concerning Farr. Id., at G2. In a January 10, 1996, one-page per curiam order, the Texas Court of Criminal Appeals upheld the lower court‘s disposition of Banks‘s motion. Id., at D1.
On March 7, 1996, Banks filed the instant petition for a writ of habeas corpus in the United States District Court for the Eastern District of Texas. App. 248. He alleged multiple violations of his federal constitutional rights. App. to Pet. for Cert. C5-C7. Relevant here, Banks reasserted that the State had withheld material exculpatory evi-
Banks renewed his discovery and evidentiary hearing requests in February 1999. Id., at 2, 300-331. This time, he proffered affidavits from both Farr and Cook to back up his claims that, as to each of these two key witnesses, the prosecution had wrongly withheld crucial exculpatory and impeaching evidence. Id., at 322-331. Farr‘s affidavit affirmed that Farr had “set Delma up” by proposing the drive to Dallas and informing Deputy Sheriff Huff of the trip. Id., at 329, ¶ 8, 442-443, ¶ 8; supra, at 678. Accounting for his unavailability earlier, Farr stated that less than a year after the Banks trial, he had left Texarkana, first for Oklahoma, then for California, because his police-informant work endangered his life. App. 330-331, 444; Pet. for Cert. 27, n. 12. Cook recalled that in preparation for his Banks trial testimony, he had participated in “three or four . . . practice sessions” at which prosecutors told him to testify “as they wanted [him] to, and that [he] would spend the rest of [his] life in prison if [he] did not.” App. 325, ¶¶ 10-11.
On March 4, 1999, the Magistrate Judge issued an order establishing issues for an evidentiary hearing, id., at 340, 346, at which she would consider Banks‘s claims that the State had withheld “crucial exculpatory and impeaching evi-
One item lodged in the District Attorney‘s files, turned over to Banks pursuant to the Magistrate Judge‘s disclosure order, was a 74-page transcript of a Cook interrogation. App. to Pet. for Cert. A10. The interrogation, conducted by Bowie County law enforcement officials and prosecutors, occurred in September 1980, shortly before the Banks trial. Ibid. The transcript revealed that the State‘s representatives had closely rehearsed Cook‘s testimony. In particular, the officials told Cook how to reconcile his testimony with affidavits to which he had earlier subscribed recounting Banks‘s visits to Dallas. See, e. g., Joint Lodging Material 24 (“Your [April 1980] statement is obviously screwed up.“); id., at 26 (“[T]he way this statement should read is that. . . .“); id., at 32 (“[L]et me tell you how this is going to work.“); id., at 36 (“That‘s not in your [earlier] statement.“). Although the transcript did not bear on Banks‘s claim that the prosecution had a deal with Cook, it provided compelling evidence that Cook‘s testimony had been tutored by Banks‘s prosecutors. Without objection at the hearing, the Magistrate Judge admitted the September 1980 transcript into evidence. Brief for Petitioner 39; Federal Evidentiary Hearing 75-76.
Testifying at the evidentiary hearing, Deputy Sheriff Huff acknowledged, for the first time, that Farr was an informant and that he had been paid $200 for his involvement in the case. App. to Pet. for Cert. C43. As to Cook, a Banks trial prosecutor testified, in line with the State‘s consistent position, that no deal had been offered to gain Cook‘s trial testimony. Id., at C45; Federal Evidentiary Hearing 52-53.
In a May 11, 2000, report and recommendation, the Magistrate Judge recommended a writ of habeas corpus with respect to Banks‘s death sentence, but not his conviction. App. to Pet. for Cert. C54. “[T]he State‘s failure to disclose Farr‘s informant status, coupled with trial counsel‘s dismal performance during the punishment phase,” the Magistrate Judge concluded, “undermined the reliability of the jury‘s verdict regarding punishment.” Id., at C44. Finding no convincing evidence of a deal between the State and Cook, however, she recommended that the guilt-phase verdict remain undisturbed. Id., at C46.
Banks moved to alter or amend the Magistrate Judge‘s report on the ground that it left unresolved a fully aired question, i. e., whether Banks‘s rights were violated by the State‘s failure to disclose to the defense the prosecution‘s eve-of-trial interrogation of Cook. App. 398. That interrogation, Banks observed, could not be reconciled with Cook‘s insistence at trial that he had talked to no one about his testimony. Id., at 400, n. 17; see supra, at 677.
The District Court adopted the Magistrate Judge‘s report and denied Banks‘s motion to amend the report. App. to Pet. for Cert. B6; App. 421-424. Concerning the Cook Brady transcript-suppression claim, the District Court recognized that Banks had filed his federal petition in 1996, three years before he became aware of the September 1980
In an August 20, 2003, unpublished per curiam opinion, the Court of Appeals for the Fifth Circuit reversed the judgment of the District Court to the extent that it granted relief on the Farr Brady claim and denied a certificate of appealability on the Cook Brady claim. App. to Pet. for Cert. A2, judgt. order reported at 48 Fed. Appx. 104 (2002).9 The
In any event, the Fifth Circuit further concluded, Farr‘s status as an informant was not “materia[l]” for Brady purposes. App. to Pet. for Cert. A32-A33. Banks had impeached Farr at trial by bringing out that he had been a police informant in Arkansas, and an unreliable one at that. Id., at A28, A32-A33; supra, at 680. Moreover, the Court of Appeals said, other witnesses had corroborated much of Farr‘s testimony against Banks. App. to Pet. for Cert. A32. Notably, Banks himself had acknowledged his willingness to get a gun for Farr‘s use in robberies. Ibid. In addition, the Fifth Circuit observed, the Magistrate Judge had relied on the cumulative effect of Brady error and the ineffectiveness of Banks‘s counsel at the penalty phase. App. to Pet. for Cert. A44. Banks himself, however, had not urged that position; he had argued Brady and ineffective assistance of
With an execution date set for March 12, 2003, Banks applied to this Court for a writ of certiorari, presenting four issues: the tenability of his Farr Brady claim; a penalty-phase ineffective-assistance-of-counsel claim; the question whether, as to the Cook Brady transcript-suppression claim, a certificate of appealability was wrongly denied; and a claim of improper exclusion of minority jurors in violation of Swain v. Alabama, 380 U.S. 202 (1965). Pet. for Cert. 23-24. We stayed Banks‘s execution on March 12, 2003, 538 U.S. 917, and, on April 21, 2003, granted his petition on all questions other than his Swain claim. 538 U.S. 977. We now reverse the Court of Appeals’ judgment dismissing Banks‘s Farr Brady claim and that Court‘s denial of a certificate of appealability on his Cook Brady claim.10
II
We note, initially, that Banks‘s Brady claims arose under the regime in place prior to the
To pursue habeas corpus relief in federal court, Banks first had to exhaust “the remedies available in the courts of the State.”
In state postconviction court, however, Banks failed to produce evidence establishing that Farr had served as a police informant in this case. As support for his Farr Brady claim, Banks appended to his state-court application only Demetra Jefferson‘s hardly probative statement that Farr “was well-connected to law enforcement people.” App. 195, ¶ 7; see supra, at 682. In the federal habeas forum, therefore, it was incumbent on Banks to show that he was not barred, by reason of the anterior state proceedings, from producing evidence to substantiate his Farr Brady claim. Banks “[would be] entitled to an evidentiary hearing [in federal court] if he [could] show cause for his failure to develop the
Brady, we reiterate, held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S., at 87. We set out in Strickler v. Greene, 527 U.S. 263, 281-282 (1999), the three components or essential elements of a Brady prosecutorial misconduct claim: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” 527 U.S., at 281-282. “[C]ause and prejudice” in this case “parallel two of the three components of the alleged Brady violation itself.” Id., at 282. Corresponding to the second Brady component (evidence suppressed by the State), a petitioner shows “cause” when the reason for his failure to develop facts in state-court proceedings was the State‘s suppression of the relevant evidence; coincident with the third Brady component (prejudice), prejudice within the compass of the “cause and prejudice” requirement exists when the suppressed evidence is “material” for Brady purposes. 527 U.S., at 282. As to the first Brady component (evidence favorable to the accused), beyond genuine debate, the suppressed evidence relevant here, Farr‘s paid informant status, qualifies as evidence advantageous to Banks. See App. to Pet. for Cert. A26 (Court of Appeals’ recognition that “Farr‘s being a paid informant would certainly be favorable to Banks in attacking Farr‘s testimony“). Thus, if Banks succeeds in demonstrating “cause and prejudice,” he will at the same time succeed in establishing the elements of his Farr Brady death penalty due process claim.
Our determination as to “cause” for Banks‘s failure to develop the facts in state-court proceedings is informed by Strickler.12 In that case, Virginia prosecutors told the petitioner, prior to trial, that “the prosecutor‘s files were open to the petitioner‘s counsel,” thus “there was no need for a formal [Brady] motion.” 527 U.S., at 276, n. 14 (quoting App. in Strickler v. Greene, O. T. 1998, No. 98-5864, pp. 212-213 (brackets in original)). The prosecution file given to the Strickler petitioner, however, did not include several documents prepared by an “importan[t]” prosecution witness, recounting the witness’ initial difficulty recalling the events to which she testified at the petitioner‘s trial. 527 U.S., at 273-275, 290. Those absent-from-the-file documents could have been used to impeach the witness. Id., at 273. In state-court postconviction proceedings, the Strickler petitioner had unsuccessfully urged ineffective assistance of trial counsel based on counsel‘s failure to move, pretrial, for Brady material. Answering that plea, the State asserted that a Brady motion would have been superfluous, for the prosecution had maintained an open file policy pursuant to which it had disclosed all Brady material. 527 U.S., at 276, n. 14, 278.
This Court determined that in the federal habeas proceedings, the Strickler petitioner had shown cause for his failure to raise a Brady claim in state court. 527 U.S., at 289. Three factors accounted for that determination:
“(a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution‘s open file policy as fulfilling the prosecution‘s duty to disclose such evidence; and (c) the [State] confirmed petitioner‘s reliance on the open file policy by asserting during state
habeas proceedings that petitioner had already received everything known to the government.” Ibid. (internal quotation marks omitted).13
This case is congruent with Strickler in all three respects. First, the State knew of, but kept back, Farr‘s arrangement with Deputy Sheriff Huff. App. to Pet. for Cert. C43; Tr. of Oral Arg. 33; cf. Kyles v. Whitley, 514 U.S. 419, 437 (1995) (prosecutors are responsible for “any favorable evidence known to the others acting on the government‘s behalf in the case, including the police“). Second, the State asserted, on the eve of trial, that it would disclose all Brady material. App. 361, n. 1; see supra, at 677. As Strickler instructs, Banks cannot be faulted for relying on that representation. See 527 U.S., at 283-284 (an “open file policy” is one factor that “explain[s] why trial counsel did not advance [a Brady] claim“).
Third, in his January 1992 state habeas application, Banks asserted that Farr was a police informant and Banks‘s arrest, “a set-up.” App. 180, ¶ 114 (internal quotation marks omitted). In its answer, the State denied Banks‘s assertion. App. 234; see supra, at 683. The State thereby “confirmed” Banks‘s reliance on the prosecution‘s representation that it had fully disclosed all relevant information its file contained. 527 U.S., at 289; see id., at 284 (state habeas counsel, as well as trial counsel, could reasonably rely on the State‘s representations). In short, because the State persisted in hiding Farr‘s informant status and misleadingly represented that it had complied in full with its Brady disclosure obligations, Banks had cause for failing to investigate, in state postconviction proceedings, Farr‘s connections to Deputy Sheriff Huff.
The State presents three main arguments for distinguishing Strickler on the issue of “cause,” two of them endorsed
We rejected a similar argument in Strickler. There, the State contended that examination of a witness’ trial testimony, alongside a letter the witness published in a local newspaper, should have alerted the petitioner to the existence of undisclosed interviews of the witness by the police. 527 U.S., at 284, and n. 26. We found this contention insubstantial. In light of the State‘s open file policy, we noted, “it is especially unlikely that counsel would have suspected that additional impeaching evidence was being withheld.” Id., at 285. Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. As we observed in Strickler, defense counsel has no “procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial
The State here nevertheless urges, in effect, that “the prosecution can lie and conceal and the prisoner still has the burden to . . . discover the evidence,” Tr. of Oral Arg. 35, so long as the “potential existence” of a prosecutorial misconduct claim might have been detected, id., at 36. A rule thus declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process. “Ordinarily, we presume that public officials have properly discharged their official duties.” Bracy v. Gramley, 520 U.S. 899, 909 (1997) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (internal quotation marks omitted)). We have several times underscored the “special role played by the American prosecutor in the search for truth in criminal trials.” Strickler, 527 U.S., at 281; accord Kyles, 514 U.S., at 439-440; United States v. Bagley, 473 U.S. 667, 675, n. 6 (1985); Berger, 295 U.S., at 88. See also Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting). Courts, litigants, and juries properly anticipate that “obligations [to refrain from improper methods to secure a conviction] . . . plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.” Berger, 295 U.S., at 88. Prosecutors’ dishonest conduct or unwarranted concealment should attract no judicial approbation. See Kyles, 514 U.S., at 440 (“The prudence of the careful prosecutor should not . . . be discouraged.“).
The State‘s second argument is a variant of the first. Specifically, the State argues, and the Court of Appeals accepted, that Banks cannot show cause because in the 1992 state-court postconviction proceedings, he failed to move for investigative assistance enabling him to inquire into Farr‘s
Finally, relying on Roviaro v. United States, 353 U.S. 53 (1957), the State asserts that “disclosure [of an informant‘s identity] is not automatic,” and, “[c]onsequently, it was Banks‘s duty to move for disclosure of otherwise privileged material.” Brief for Respondent 17-18, n. 15. We need not linger over this argument. The issue of evidentiary law in Roviaro was whether (or when) the Government is obliged to reveal the identity of an undercover informer the Government does not call as a trial witness. 353 U.S., at 55-56. The Court there stated that no privilege obtains “[w]here the disclosure of an informer‘s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused.” Id., at 60-61. Accordingly, even though the informer in Roviaro did not testify, we held that disclosure
Here, the State elected to call Farr as a witness. Indeed, he was a key witness at both guilt and punishment phases of Banks‘s capital trial. Farr‘s status as a paid informant was unquestionably “relevant“; similarly beyond doubt, disclosure of Farr‘s status would have been “helpful to [Banks‘s] defense.” Id., at 60-61. Nothing in Roviaro, or any other decision of this Court, suggests that the State can examine an informant at trial, withholding acknowledgment of his informant status in the hope that defendant will not catch on, so will make no disclosure motion.
In summary, Banks‘s prosecutors represented at trial and in state postconviction proceedings that the State had held nothing back. Moreover, in state postconviction court, the State‘s pleading denied that Farr was an informant. App. 234; supra, at 683. It was not incumbent on Banks to prove these representations false; rather, Banks was entitled to treat the prosecutor‘s submissions as truthful. Accordingly, Banks has shown cause for failing to present evidence in state court capable of substantiating his Farr Brady claim.
C
Unless suppressed evidence is “material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to overcome [a] procedural default.” Strickler, 527 U.S., at 282 (internal quotation marks omitted). Our touchstone on materiality is Kyles v. Whitley, 514 U.S. 419 (1995). Kyles instructed that the materiality standard for Brady claims is met when “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” 514 U.S., at 435. See also id., at 434-435 (“A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left
As the State acknowledged at oral argument, Farr was “paid for a critical role in the scenario that led to the indictment.” Tr. of Oral Arg. 34. Farr‘s declaration, presented to the federal habeas court, asserts that Farr, not Banks, initiated the proposal to obtain a gun to facilitate the commission of robberies. See App. 442-443, ¶¶ 7-8; supra, at 678. Had Farr not instigated, upon Deputy Sheriff Huff‘s request, the Dallas excursion to fetch Banks‘s gun, the prosecution would have had slim, if any, evidence that Banks planned to “continue” committing violent acts. App. 147.17 Farr‘s admission of his instigating role, moreover, would have dampened the prosecution‘s zeal in urging the jury to bear in mind Banks‘s “planning and acquisition of a gun to commit robbery,” or Banks‘s “planned violence.” Ibid.; see Tr. of Oral Arg. 50.18
Because Banks had no criminal record, Farr‘s testimony about Banks‘s propensity to commit violent acts was crucial to the prosecution. Without that testimony, the State could not have underscored, as it did three times in the penalty phase, that Banks would use the gun fetched in Dallas to “take care” of trouble arising during the robberies. App. 140, 144, 146-147; see supra, at 681. The stress placed by the prosecution on this part of Farr‘s testimony, uncorroborated by any other witness, belies the State‘s suggestion that “Farr‘s testimony was adequately corroborated.” Brief for Respondent 22-25. The prosecution‘s penalty-phase summation, moreover, left no doubt about the importance the State attached to Farr‘s testimony. What Farr told the jury, the prosecution urged, was “of the utmost significance” to show “[Banks] is a danger to friends and strangers, alike.” App. 146.
In Strickler, 527 U.S., at 289, although the Court found “cause” for the petitioner‘s procedural default of a Brady claim, it found the requisite “prejudice” absent, 527 U.S., at 292-296. Regarding “prejudice,” the contrast between Strickler and Banks‘s case is marked. The witness whose impeachment was at issue in Strickler gave testimony that was in the main cumulative, id., at 292, and hardly significant
Farr‘s trial testimony, critical at the penalty phase, was cast in large doubt by the declaration Banks ultimately obtained from Farr and introduced in the federal habeas proceeding. See supra, at 678, 684. In the guilt phase of Banks‘s trial, Farr had acknowledged his narcotics use. App. 36. In the penalty phase, Banks‘s counsel asked Farr if, “drawn up tight over” previous drug-related activity, he would “testify to anything anybody want[ed] to hear“; Farr denied this. Id., at 110; supra, at 680. Farr‘s declaration supporting Banks‘s federal habeas petition, however, vividly contradicts that denial: “I assumed that if I did not help [Huff] . . . he would have me arrested for drug charges.” App. 442, ¶ 6. Had jurors known of Farr‘s continuing interest in obtaining Deputy Sheriff Huff‘s favor, in addition to his receipt of funds to “set [Banks] up,” id., at 442, ¶ 7, they might well have distrusted Farr‘s testimony, and, insofar as it was uncorroborated, disregarded it.
The jury, moreover, did not benefit from customary, truth-promoting precautions that generally accompany the testimony of informants. This Court has long recognized the “serious questions of credibility” informers pose. On Lee v. United States, 343 U.S. 747, 757 (1952). See also Trott, Words of Warning for Prosecutors Using Criminals as Wit-
The State argues that “Farr was heavily impeached [at trial],” rendering his informant status “merely cumulative.” Tr. of Oral Arg. 49; see Brief for Respondent 26-28; post, at 709, n. 3. The record suggests otherwise. Neither witness called to impeach Farr gave evidence directly relevant to Farr‘s part in Banks‘s trial. App. 124-133; id., at 129 (prosecutor noted that Kelley lacked “personal knowledge with regard to this case on trial“). The impeaching witnesses, Kelley and Owen, moreover, were themselves impeached, as the prosecution stressed on summation. See id., at 141, 148; supra, at 680, 682. Further, the prosecution turned to its advantage remaining impeachment evidence concerning Farr‘s drug use. On summation, the prosecution suggested that Farr‘s admission “that he used dope, that he shot,” demonstrated that Farr had been “open and honest with [the jury] in every way.” App. 140; supra, at 681.
At least as to the penalty phase, in sum, one can hardly be confident that Banks received a fair trial, given the jury‘s ignorance of Farr‘s true role in the investigation and trial of the case. See Kyles, 514 U.S., at 434 (“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in
III
Both the District Court and the Court of Appeals denied Banks a certificate of appealability with regard to his Cook Brady claim, which rested on the prosecution‘s suppression of the September 1980 Cook interrogation transcript. App. 422-423; App. to Pet. for Cert. A52, A78; supra, at 687, 689. See also Joint Lodging Material 1-36. The District Court and the Fifth Circuit concluded that Banks had not properly pleaded this claim because he had not sought leave to amend his petition, but had stated the claim only in other submissions, i. e., in his proposed findings of fact and conclusions of law, and, again, in his objections to the Magistrate Judge‘s report. App. 422-423, 432-433; App. to Pet. for Cert. A51-A52; supra, at 687, 689. Banks contended, unsuccessfully, that evidence substantiating the Cook Brady claim had been aired before the Magistrate Judge; therefore the claim should have been treated as if raised in the pleadings, as
We have twice before referenced Rule 15(b)‘s application in federal habeas proceedings. In Harris v. Nelson, 394 U.S. 286, 294, n. 5 (1969), we noted that Rule 15(b)‘s use in habeas proceedings is “noncontroversial.” In Withrow v. Williams, 507 U.S. 680, 696, and n. 7 (1993), we similarly assumed Rule 15(b)‘s application to habeas petitions. There, however, the District Court had granted a writ of habeas corpus on a claim neither pleaded, considered at “an evidentiary hearing,” nor “even argu[ed]” by the parties. Id., at 695. Given those circumstances, we held that there had been no trial of the claim by implied consent; the respondent warden, we observed, “was manifestly prejudiced by the District Court‘s failure to afford her an opportunity to present evidence bearing on th[e] claim‘s resolution.” Id., at 696. Here, in contrast, the issue of the undisclosed Cook interrogation transcript was indeed aired before the Magistrate Judge, and the transcript itself was admitted into evidence without objection. See supra, at 685.19
The Court of Appeals found no authority for equating “an evidentiary hearing . . . with a trial” for Rule 15(b) purposes. App. to Pet. for Cert. A52. We see no reason why an evidentiary hearing should not qualify so long as the respondent gave “any sort of consent” and had a full and fair “opportu-
To obtain a certificate of appealability, a prisoner must “demonstrat[e] that jurists of reason could disagree with the district court‘s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). At least as to the application of Rule 15(b), this case surely fits that description. A certificate of appealability, therefore, should have issued.
* * *
For the reasons stated, the judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in part and dissenting in part.
I join Part III of the Court‘s opinion, and respectfully dissent from Part II, which holds that Banks’ claim under Brady v. Maryland, 373 U.S. 83 (1963), relating to the nondisclosure of evidence that Farr accepted money from a police officer during the course of the investigation, warrants habeas relief. Although I find it to be a very close question, I cannot conclude that the nondisclosure of Farr‘s informant status was prejudicial under Kyles v. Whitley, 514 U.S. 419 (1995), and Brady.1
To demonstrate prejudice, Banks must show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, supra, at 435. The undisclosed material consisted of evidence that “Willie Huff asked [Farr] to help him find [Banks‘] gun,” and that Huff “gave [Farr] about $200.00 for helping him.” App. 442 (Farr Declaration). Banks contends that if Farr‘s receipt of $200 from Huff had been revealed to the defense, there would have been a “reasonable probability,” Kyles, supra, at 434, that the jury would not have found “beyond a reasonable doubt that there
I do not believe that there is a reasonable probability that the jury would have altered its finding. The jury was presented with the facts of a horrible crime. Banks, after meeting the victim, Richard Whitehead, a 16-year-old boy who had the misfortune of owning a car that Banks wanted, decided “to kill the person for the hell of it” and take his car. Banks v. State, 643 S.W. 2d 129, 131 (Tex. Crim. App. 1982) (en banc), cert. denied, 464 U.S. 904 (1983). Banks proceeded to shoot Whitehead three times, twice in the head and once in the upper back. Banks fired one of the shots only 18 to 24 inches away from Whitehead. The jury was thus presented with evidence showing that Banks, apparently on a whim, executed Whitehead simply to get his car.
The jury was also presented with evidence, in the form of Banks’ own testimony, that he was willing to abet another individual in obtaining a gun, with the full knowledge that this gun would aid future armed robberies. The colloquy between a prosecuting attorney and Banks makes it clear what Banks thought he was doing:
“Q: You were going to supply him [Farr] your gun so he could do armed robberies?
“A: No, not supply him my gun. A gun.
“Q: In other words you didn‘t care if it was yours or whose, but you were going to be the man who got the gun to do armed robberies. Is that correct?
“A: He was going to do it.
“Q: I understand, but you were going to supply him the means and possible death weapon in an armed robbery case. Is that correct?
“A: Yes.” App. 137 (cross-examination of Banks).
“The testimony of Vetrano Jefferson and Robert Farr is of the utmost significance. Vetrano brought before you the scar on his face, put there by Delma Banks. . . . He also corroborates or supports the testimony of Robert Farr. You don‘t have to believe just Robert in order to find that Delma went to Dallas to get a pistol so that somebody could do some robberies. Marcus Jefferson told you that, too.” Id., at 146 (emphasis added).2
The jury also heard testimony that Banks had violently pistol-whipped and threatened to kill his brother-in-law one week before the murder. Banks now claims that this evidence should be discounted because his trial counsel failed to uncover that the brother-in-law was “responsible for the fight.” Brief for Petitioner 33. But even if it is appropriate to mix-and-match the prejudice analysis of the Brady claim and the claim under Strickland v. Washington, 466 U.S. 668 (1984) (rather than to evaluate them independently, as distinct potential constitutional violations), Banks’ response was vastly disproportional to his brother-in-law‘s actions.
In sum, the jury knew that Banks had murdered a 16-year-old on a whim, had violently attacked and threatened a relative shortly before the murder, and was willing to assist another individual in committing armed robberies by providing the “means and possible death weapon” for these robberies. App. 137. Even if the jury were to discredit entirely
Because Banks cannot show prejudice, I do not resolve whether he has cause to excuse his failure to present his Farr Brady evidence in state court, Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12 (1992). But there are reasons to doubt the Court‘s conclusion that Banks can show cause. For instance, the Court concludes that “[t]his case is congruent with Strickler [v. Greene, 527 U.S. 263 (1999)],” ante, at 693, relying in part on the State‘s general denial of all of Banks’ factual allegations contained in his January 1992 state habeas application. But, in the relevant state postconviction proceeding in Strickler, the State alleged that the petitioner had already received “‘everything known to the government,‘” a statement that federal habeas proceedings established was clearly not true. 527 U.S., at 289 (emphasis added). In the instant case, the particular allegation raised in Banks’ state habeas application and denied by the State was that “the
Because of the Court‘s disposition of Banks’ Farr Brady claim, it does not address his claim of ineffective assistance of counsel, concluding that “any relief he could obtain on that claim would be cumulative.” Ante, at 689, n. 10. As I would affirm the Court of Appeals on the Farr Brady claim, I briefly discuss this ineffective-assistance claim. Although I find the Farr Brady claim a close call, I do not find this to be so as to the ineffective-assistance claim. Banks comes nowhere close to satisfying the prejudice prong of Strickland v. Washington, supra. The conclusory and uncorroborated claims of some level of physical abuse, the allegations that a bad skin condition negatively affected his childhood development, the evidence that he was a slow learner and possessed a willingness to please others, and the claim that Banks’ brother-in-law was responsible for his own pistol-whipping and receipt of a death threat, are so unpersuasive that there is no reasonable probability that the jury would have come to the opposite conclusion with respect to the fu-
I therefore conclude that the Court of Appeals did not err when it denied relief to Banks based on his Farr Brady claim and his Strickland claim. I would reverse the Court of Appeals only insofar as it did not grant a certificate of appealability on the Cook Brady claim.
Notes
It also appears that the remaining prosecution witness in the penalty phase, Vetrano Jefferson, had omitted crucial details from his 1980 testimony. In his September 1980 testimony, Vetrano Jefferson said that Banks had struck him with a pistol in early April 1980. App. 104-105; supra, at 679-680. In the federal habeas proceeding, Vetrano Jefferson elaborated that he, not Banks, had initiated that incident by making “disrespectful comments” about Demetra Jefferson, Banks‘s girlfriend. App. 337, ¶ 4. Vetrano Jefferson recounted that he “grow angry” when Banks objected to the comments, and only then did a fight ensue, in the course of which Banks struck Vetrano Jefferson. Ibid.