Ex-FBI Chief, Judges Take Interest in Texas Execution

Evidence Suppressed in Circumstantial Case Against Young Black Man Accused of Killing White Teen
Washington Post, Mar. 10, 2003
http://www.washingtonpost.com/
By Lee Hockstader, Washington Post Staff Writer

AUSTIN — The evidence that Delma Banks Jr. was guilty of murder was limited from the start: no fingerprints, no witnesses to the crime and little apparent motive. Nonetheless, in a one-day trial in 1980, an all-white Texas jury convicted Banks, a young black man, of killing a white teenager, and the next day he was sentenced to death.

Now, 23 years, 15 death warrants and a half-dozen appeals after the crime, Banks is scheduled to be executed by lethal injection on Wednesday, even though the key witness against him has recanted parts of his testimony and evidence of prosecutorial misconduct has emerged.

The case has attracted the attention of former FBI director William S. Sessions who, joined by two retired federal appeals court judges and a top former federal prosecutor, has asked the Supreme Court to stay Banks’s execution.

The intervention of four such prominent figures is the latest high-level attack on alleged procedural and other flaws in the practice of capital punishment in the United States. The critique is particularly significant because it has been leveled in Texas, which executes nearly as many convicts as all the other states combined and has come under repeated attack as error-prone and dismissive of systemic mishaps.

The Banks case, Sessions said in his brief to the Supreme Court, is tainted by “uncured constitutional errors in the process through which he was convicted and sentenced. Because these uncorrected errors are typical of those that have undermined public confidence in the fairness of our capital punishment system, the significance of this case extends well beyond the interests of those that are personally involved in it.”

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In addition to Sessions, a former judge and prosecutor who led the FBI under President George H.W. Bush, the others who signed the brief to the Supreme Court are John J. Gibbons, former chief judge of the U.S. Court of Appeals for the 3rd Circuit; Timothy K. Lewis, a former judge of the same court; and Thomas P. Sullivan, the former U.S. attorney in Chicago.

Although none of them is a blanket opponent of the death penalty, they argued that a reprieve should be granted in Banks’s case because Texas prosecutors wrongfully suppressed evidence at his trial. The evidence, a transcript of police and prosecutors coaching the key prosecution witness, finally emerged in 1999, and defense lawyers said it could have been used to knock holes in the prosecution’s case.

Sessions’s brief also contends that Banks’s defense lawyer botched his trial, failing to attack the state’s “weak, circumstantial case” and arriving unprepared at the next day’s sentencing hearing to plead for Banks’s life. Although Banks had no prior convictions, the defense offered little testimony to contradict the state’s contention that Banks posed a future danger to society — a necessary precondition for the death penalty in Texas.

“When a criminal defendant is forced to pay with his life for his lawyer’s errors, the effectiveness of the criminal justice system as a whole is undermined,” the four wrote in their brief.

Despite the eleventh-hour effort to secure a reprieve for Banks, prosecutors in Bowie County, near the Texas-Arkansas border, where the crime took place, regard the case against him as watertight. In particular, they note that some of the most damning evidence against Banks has remained unchallenged, including the fact that he unwittingly led police to the .25-caliber pistol used to kill 16-year-old Wayne Whitehead.

At the time of Whitehead’s murder, Banks was 21 years old, a high school dropout and the father of two children. On the evening of April 12, 1980, he bumped into Whitehead, an acquaintance, at a bowling alley in Texarkana. They took a ride in Whitehead’s Mustang and dropped off Whitehead’s date. Whitehead was reported missing the next morning; his body was found shot twice in the head two days later in a park, and the Mustang was gone.

Because Banks had been seen with Whitehead, police immediately focused their investigation on him. They sent a paid informant, Robert Farr, to ask Banks where he could purchase a gun. With sheriff’s deputies tailing them, Banks then led Farr 180 miles to Dallas, where he had spent the weekend after Whitehead’s murder at the home of a small-time ex-convict named Charles Cook. The sheriff’s deputies then burst in on Cook, who led them to the murder weapon.

Cook emerged as the key prosecution witness. He testified that Banks had arrived at his house driving a Mustang. He said Banks had confessed to killing a white youth, and that he saw blood on Banks’s clothes. He said Banks had given him both the pistol and the car to dispose of. The car, which Cook said he abandoned, was never recovered, but the pistol was identified by ballistics experts as the murder weapon.

At the trial, Cook said his testimony had not been coached or coerced by the authorities. But the state failed to turn over a transcript in which Cook was extensively coached by prosecutors and Deputy Sheriff Willie Huff. Farr, who had received $200 from the police, testified that he was not a paid informer.

In neither instance did prosecutors contradict their witnesses.

Years later Farr admitted he had lied about not being a paid police informer. And in a federal court hearing in 1999, Cook said his testimony at the trial was “a scripted event that was forced upon me by Deputy Sheriff Huff and the trial prosecutors.”

Cook, who was facing a felony arson charge at the time and could have been prosecuted as a habitual offender, said Huff had threatened to send him to prison for the rest of his life if he did not testify as prosecutors wanted. Still, Cook did not recant his original testimony that Banks had appeared at his house with the car and the pistol.

In 2000, a federal judge overturned Banks’s death sentence based on what he called the “dismal performance” of the convicted man’s lawyer at the trial and the prosecution’s failure to tell the court that Farr was a paid informer.

But the U.S. Court of Appeals for the 5th Circuit, in New Orleans, reversed the judge’s ruling, clearing the way for Banks’s execution Wednesday. The appeals court ruled that even if the suppressed evidence had been introduced, it would not have altered the trial’s outcome.

Banks’s current defense attorney, George Kendall, a lawyer with the NAACP Legal and Educational Defense Fund, assailed the state’s case as “very weak.” “There was no eyewitness who saw this crime. . . . There was no blood evidence, there was no DNA, there were no fingerprints,” he said.

But James Elliott, a former Bowie County district attorney who helped prosecute Banks in 1980, insisted that Banks’s conviction and sentence had held up through repeated appeals for a reason. “What are the three essentials here?” he said. “That Banks was there, that he had Whitehead’s car and he had the murder weapon.”

“This case was strong,” said Elliott, who prosecuted about 20 murder cases in his career. “I can sleep soundly knowing I absolutely never put an innocent man in prison or to death.”

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