Wednesday, December 10, 2003


Mr. Banks was once nine minutes from execution when the Supreme Court stepped in and agreed to hear his case. That hearing took place on Monday and, by all indications, was a good day for Mr. Banks. The following is compiled from various accounts of the hearing from AP, The NYTimes, The Houston Chronicle and and the Chicago Tribune. A side note: All four articles were written by woman. Does that mean anything? No. I just found it interesting.

The Case:

Banks was convicted and sentenced to death in 1981 for the 1980 killing of a 16-year-old former co-worker at a fast-food outlet. He is the longest-serving of 453 prisoners on Texas' death row, has had 15 execution dates in the nearly 24 years since he was sentenced to die.

The skinny: Texas prosecutors said Banks lured Richard Whitehead to a park and shot him three times to steal his car. Banks maintains that he is not guilty and that he was framed by lying witnesses.

No physical evidence in the murder case linked Banks, then 21, to the crime. He had no prior criminal record, but he quickly became a suspect because he was the last person seen with Whitehead.

Critical to his conviction and death sentence was testimony by two witnesses, both of whom lied on the stand. Instead of correcting the testimony, prosecutors told the jury both had been truthful.

A Texas federal court judge threw out Banks' sentence three years ago. But a federal appeals court disagreed and reinstated the sentence.

Lies and Liars: At his trial, a key witness and two-time felon, Charles Cook, testified that Banks had confessed to him the day after the crime. Cook said Banks also gave him the murder weapon and the victim's stolen 1969 Ford Mustang.

Cook denied that he had cut a deal with prosecutors for his testimony and that he had been coached on what to say.

Both of those assertions were lies, but Bowie County prosecutors never corrected him. They also failed to tell Banks' lawyer that they had dropped an arson charge against Cook in exchange for his testimony.

That fact was discovered by Banks' appellate attorneys in 1998 -- 18 years after the trial. Also discovered then was a 74-page transcript of a meeting in which an investigator and a prosecutor coached Cook on his trial testimony, mocking him when he was unable to keep his own story straight.

During the sentencing phase, Kendall argued, jurors relied on the false testimony of another witness, Robert Farr, an informant who was paid $200 to help police find the murder weapon and pin the crime on Banks.

Farr testified that Banks had traveled to Dallas with him to collect the gun from Cook so that Banks could commit future armed robberies. The jury, Kendall said, used that information to decide that Banks would be a future danger -- a requirement of imposing the death penalty in Texas. Asked during the trial whether he had accepted money from police, Farr said no.

Again, prosecutors failed to correct the lie.

Several former federal prosecutors and judges, including former FBI Director William Sessions, have sided with Banks in the case, arguing in court briefs that such egregious misconduct by prosecutors has the effect of "substantially undermining public confidence" in the death penalty system.

The Supremes: Expressing concern about the integrity of the criminal-justice system, several Supreme Court justices indicated yesterday they believed the court should throw out the sentence of one of the nation's longest-serving death-row inmates because of the alleged misconduct of the prosecutors at trial.

The justices seemed troubled by assertions that prosecutors had failed to provide key documents and information to Banks' lawyers that could have made the difference in life or death.

The majority of the justices repeatedly challenged Texas Assistant Attorney General Gena Bunn's argument that the prosecutors didn't lie, and that even if they did, it was up to Banks' lawyers to object at trial or in their early appeals.

Justices also seemed troubled that prosecutors had permitted witnesses to testify falsely. "Why isn't the burden on the prosecutor ... to come clean rather than let this falsehood remain on the record?" Justice Ruth Bader Ginsburg asked.

Supporters: Banks' supporters include former prosecutors and judges who say they are concerned about the egregious failings by the prosecution and defense counsel. They say this case exhibits two of the most prevalent flaws in the death-penalty system: The failure of prosecutors to disclose evidence that could spare a defendant and the inadequacy of lawyers representing those facing the death penalty.

In the end, it appeared to be a very good day for Delma Banks Jr. The justices will decide Banks' case by next summer.

However, the facts of the Banks case are tangled and unusual, meaning that a ruling in his favor may have little effect on other death row inmates or on future prosecutions. Still, the case has become widely known and Banks' supporters say a Supreme Court victory would be an important statement that states must play by the rules in death penalty trials.