Summer 2003

Section Prepares Amicus Curiae Briefs for Cases
Involving Death Row Inmate, September 11 Detainee

The Section has prepared an amicus curiae brief in the U. S. Supreme Court case of Banks v. Cockrell, involving issues of prosecutorial misconduct and defense incompetence in a capital case out of Texas. It is assumed the ABA will file the brief by July 3.

In granting certiorari in the case, the Supreme Court agreed to consider three issues: 1) whether the prosecution's suppression of material witness impeachment evidence prejudiced Banks in the penalty phase of his trial; 2) whether the U. S. Court of Appeals for the Fifth Circuit, in reviewing the case, should have reviewed mitigating evidence collectively instead of as separate pieces of evidence; and 3) whether the Fifth Circuit ruled incorrectly that "evidentiary hearings" (during which information that could have been used to impeach a witness against Banks) are not similar to civil trials.

The proposed ABA brief argues that the prosecution has the duty not just to convict, but also to ensure that justice is done, and that the defense has a duty to undertake a thorough investigation for both the guilt and the penalty phases of trial. The brief draws from the ABA's existing standards for the prosecution of criminal cases and guidelines for the performance of defense counsel in death penalty cases, which the Court previously has cited in holding that counsel's ineffectiveness in the penalty phase of a death penalty case violated the Sixth Amendment.

The Section also is developing, for possible ABA filing in late July, an amicus curiae brief in Padilla v. Rumsfeld, involving the right to counsel of a U. S. citizen being held by the federal government as a terrorist suspect. The case is pending in the U. S. Court of Appeals for the Third Circuit.

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