Should AG Back Erring Prosecutors?

That's the title of Rick Casey's latest Houston Chronicle column.  LINK

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 Catherine 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."

Casey notes that following the Supreme Court ruling in Banks v.Dretke, Federal District Judge David Folsom in Texarkana ordered that Banks be retried or freed.  Casey continues:

Today, Assistant Attorney General Hayes will appear 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?

The prosecutorial misconduct category index is here.