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The Supreme Court last week beefed up its docket for next term, granting review in cases involving capital punishment, the scope of Miranda, and age discrimination. In a significant new capital punishment case, the Court on April 21 agreed to consider the death row appeal of Delma Banks Jr., 23 years after he was convicted of killing a 16-year-old boy in Texas. Lawyers for Banks, who has been on Texas death row longer than any other current inmate, claim he was the victim of prosecutorial misconduct and incompetent counsel. They contend the state coerced or paid for testimony by key witnesses who have since recanted. Banks was about to be executed in March, when the Supreme Court stayed the execution pending its action on his petition. The high court’s April 21 action in Banks v. Cockrell, No. 02-8286, was applauded by death penalty foes who say the case may give the Court a chance to underline its concerns about the fairness of capital trials — especially in Texas, which has executed more prisoners than any other state since capital punishment was reinstated in 1976. “What’s clear is that they can’t let this issue go away,” says George Kendall, a lawyer for Banks and director of the criminal justice project at the NAACP Legal Defense and Educational Fund. “Though there have been many years of appeals and many courts that shuffled the paperwork, no one has ever granted this man the review that he deserves,” says Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty. A group of former federal judges — including John Gibbons and Timothy Lewis of the U.S. Court of Appeals for the 3rd Circuit, and William Sessions, who sat on the U.S. District Court in Texas before serving as director of the Federal Bureau of Investigation — also urged the Court to take the case. “The questions presented in Mr. Banks’ petition directly implicate the integrity of the administration of the death penalty in this country,” the former jurists wrote in an amicus brief. The brief, written by Peter Buscemi of the D.C. office of Morgan, Lewis & Bockius, also rebuked the 5th Circuit for ruling in Banks’ case that the burden is on Banks to prove that the prosecution improperly withheld evidence. The 5th Circuit “provided an incentive to prosecutors to withhold evidence in the future,” according to the brief. In a lengthy but unpublished opinion last year, the appeals court overturned a ruling by a district judge ordering the state to reduce Banks’ sentence or give him a new hearing. The trial judge ruled on behalf of Banks after hearing evidence that was not aired at trial. The Court declined to include in its review the issue of racially biased jury selection. Banks, who is African-American, was tried by an all-white jury. The murder victim was white. Prosecutors excluded all black potential jurors, and Banks’ defense lawyer at the time did not object. Also on April 21, the Court granted review in United States v. Patane, No. 02-1183, testing the scope of the landmark 1966 ruling Miranda v. Arizona. The issue in the Colorado case is whether physical evidence obtained by police as the result of “un-Mirandized” statements by criminal defendants must be excluded at trial. The statements themselves are excluded, but the 10th Circuit ruled that the question of the admissibility of physical evidence was reopened by the Supreme Court itself in the 2000 ruling Dickerson v. United States. Dickerson reaffirmed Miranda and gave it more constitutional weight, which led the 10th Circuit to conclude that physical evidence — in this case a gun — should also be excluded when police have not adhered to Miranda. The government argues that the issue was already resolved in decisions handed down before Dickerson. An unusual age discrimination case also caught the attention of the high court last week. The Court granted review in General Dynamics Land Systems Inc. v. Cline, No. 02-1080. Workers between the ages of 40 and 50 sued the company because it had offered retiree health benefits only to workers who were at least 50 in 1997. They invoked the Age Discrimination in Employment Act, which protects workers 40 and over against age bias. Typically, the law is cited when workers under 40 are favored over those who are older, but in this case the target of the suit was a policy that benefited workers over 50. The 6th Circuit sided with the workers, prompting a challenge by General Dynamics. The ruling, if upheld, will “impose serious and unwarranted new burdens” on employers and on older workers that the law was aimed at benefiting, according to company lawyer William Kilberg of the D.C. office of Gibson, Dunn & Crutcher. All three cases granted review on April 21 will be heard in the fall.

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