Judicial Notebook

The increased use of DNA testing in criminal investigations has uncovered at least 138 instances of wrongful convictions. Many of the cases contained mistaken eyewitness identifications, false confessions, prosecutorial misconduct (e.g., suppression of exculpatory evidence) or ineffective defense counsel, according to one review of the likely sources of error in these cases. Although psychologists have turned their research efforts toward understanding the factors contributing to these first two phenomena, little research has examined how prosecutorial misconduct or ineffective counsel influences jury decisions. The Supreme Court recently decided to review a death penalty case in which they will consider the issues of prosecutorial misconduct and ineffective counsel.

Misconduct in the courtroom

In Delma Banks v. Cockrell, Director of the Texas Department of Corrections (No. 02-8286), Banks was convicted of murdering Richard Whitehead. Officers suspected Banks because witnesses reported seeing the two men together the evening before Whitehead was killed. The police paid Robert Farr, a friend of Banks's, to obtain Banks's gun. Farr told Banks he needed a gun to rob a bank. Although Banks initially refused Farr's repeated requests for his gun, he eventually relented and Banks and Farr drove three hours to Dallas to retrieve Banks's gun from Charles Cook. The men were stopped shortly after retrieving the gun, and Banks was arrested, although subsequent tests showed that the gun was not the murder weapon. The murder weapon was found shortly thereafter at Cook's neighbor's house, and Banks was indicted for capital murder.

Prior to the trial, the prosecution assured the defense that there was no need to file discovery motions because they would voluntarily provide all of their evidence. However, the prosecution failed to inform the defense that Farr was a paid informant who received $200 for his role in apprehending Banks, and did not correct Farr's testimony that he was not a paid informant.

Farr's testimony about the trip to Dallas was used to prove Banks' future dangerousness during the penalty phase of the trial. In the appeal, the defense claims that depriving the jury of information about Farr's informant status constituted prosecutorial misconduct.

The appeal also raises the issue of ineffective counsel. During the trial, Banks's attorney presented no evidence. He never looked at the crime scene photos, failed to depose state witnesses, claimed never to have seen a witness list and failed to object when the prosecution struck all four qualified black jurors. He failed to investigate Banks's background or present mitigating evidence during the penalty phase, namely that a psychiatrist had concluded that Banks was unlikely to be a future danger. He also inadequately prepared witnesses to testify on Banks's behalf in the penalty phase, calling Banks's mother the night before and asking her to round up character witnesses to testify.

Although the 5th Circuit Court of Appeals agreed with an earlier appellate court ruling that Banks's counsel was inadequate and that the prosecution inappropriately suppressed evidence about Farr's informant status, they separately considered each piece of evidence that was suppressed or not presented and ruled that the presence or absence of any of these pieces of evidence would not have affected the trial outcome.

Banks's new attorney has filed an appeal with the Supreme Court, arguing that the justices should compare the evidence that was presented at trial with the totality of evidence that should have been presented. Several federal judges and former FBI Director William Sessions have filed an amicus curiae brief concurring with this position.

Psychological insight

What does psychology tell us about the issues in this case? Although the court of appeals ruled on whether each instance of misconduct, if corrected, would have changed the outcome of the trial, models of juror decision-making suggest that jurors do not evaluate each piece of evidence separately. Instead, each piece of evidence is integrated into jurors' understanding of the case; missing pieces of evidence may alter the story that jurors construct out of the evidence and the decisions that they make based on that story.

In addition, the underlying issues of prosecutorial misconduct, ineffective counsel and paid informants raise interesting research questions for psychologists. How much weight do jurors give to informants' testimony? What factors influence whether judges rule that prosecutorial misconduct or ineffective representation has occurred in a case? Moreover, will a failure to grant a defendant a new trial in these instances increase the likelihood that officers and counsel will behave inappropriately in future cases? These research questions await empirical attention from psychologists.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).

Further Reading