Delma Banks Jr., who has spent 22 years on death row, is scheduled to die Wednesday, becoming the 300th person executed in Texas since the state resumed capital punishment 20 years ago.
Like the men executed earlier in the Lone Star State -- all of whom Banks met in prison -- he has mounted last-ditch appeals at the Texas Court of Criminal Appeals and the U.S. Supreme Court. It is rare for either court to grant an eleventh-hour stay of execution.
But Banks' prospects seem stronger than many of his predecessors because an unusual alliance has formed on his behalf. Former FBI Director William S. Sessions, two former federal appellate judges from Philadelphia and a former U.S. attorney from Chicago have filed a friend-of-the-court brief urging the Supreme Court to halt the execution and grant further review to Banks' case. They say that it would be "a miscarriage of justice" to permit the 43-year-old African American man to be executed.
Banks always has maintained his innocence in the murder of Richard Wayne Whitehead, a 16-year-old high school student whose body was found in a park on the outskirts of Texarkana on April 14, 1980. He had been shot twice in the head.
No physical evidence links him to the crime, though Banks, then 21, admits he and Whitehead shared some beers on the night of April 12, the last time the youth was seen alive. They had once worked together at a restaurant. Witnesses who saw them together that night said there was no sign of hostility.
The Sessions brief asserts that Banks' case exemplifies two primary problems in many capital cases in the U.S. -- concealment of potentially exculpatory evidence to the defendant that prosecutors are obliged to divulge under the 1963 Supreme Court decision Brady vs. Maryland, and egregiously poor work by the defendant's trial lawyer.
The pending execution comes when there is growing controversy over how the death penalty is administered in this country. In January, Illinois' outgoing Republican governor, George Ryan, commuted the sentences of all 167 inmates on death row there, saying the system was fatally flawed. Legislation to reform death penalty procedures has been introduced in the U.S. Senate and numerous states. Last week, a special committee appointed by the Supreme Court of Pennsylvania called for a moratorium on executions there, saying that death sentences are imposed disproportionately on minorities.
While the pace of executions has slowed around the country in recent years, it remains high in Texas, which has accounted for more than one-third of all executions in the U.S. since 1976, when the Supreme Court permitted states to resume capital punishment. Nine of the nation's 14 executions this year were carried out in the Huntsville, Texas, death chamber and 11 more are scheduled through early July.
Studies done in Texas have shown that capital cases there have been flawed by shoddy defense lawyering, questionable evidence and an appeals court that has a highly constricted view of its role. The Austin American-Statesman, in a recent editorial, urged abolition of the Texas Court of Criminal Appeals, branding it "incompetent" to reliably fulfill its responsibility to review lower court verdicts.
The friend-of-the-court brief submitted by Sessions and the other three men plays on this template. "The significance of this case extends well beyond the interests of those who are personally involved in it.... Because the constitutional issues raised in Mr. Banks' petition call into question the reliability of the guilty verdict and the death sentence in his case, and because similar flaws infect the reliability of death sentences around the country, thus substantially undermining public confidence in our capital punishment system, this Court should grant review," states the brief written by Washington lawyers Peter Buscemi and Brooke Clagett.
Nearly three years ago, Sessions agreed to join a bipartisan death penalty initiative started by the Washington, D.C.-based Constitution Project, which maintains that the prospect of wrongful convictions and executions had become too great.
"My whole background has been in law enforcement for years ... but if you are going to put someone to death, you need to do it correctly," said Sessions, who was once the U.S. attorney in El Paso and later a federal judge there before President Reagan appointed him to run the FBI.
After reading material given to him about this case, Sessions said he decided to sign the brief, because he was disturbed about the representation that Banks received at trial and because prosecutors had failed to turn over evidence that could have aided Banks.
Also signing the brief for the same reasons were attorney John J. Gibbons of Newark, N.J. , who served 20 years on the U.S. 3rd Circuit Court of Appeals in Philadelphia after being appointed by President Nixon; Chicago lawyer Thomas P. Sullivan, formerly the U.S. attorney there; and Pittsburgh attorney Timothy K. Lewis, also a former 3rd Circuit judge.
Three years ago, Gibbons successfully represented the only death row inmate in the nation whose sentence was overturned by the U.S. Supreme Court because of inadequate representation by his trial lawyer. Sullivan served on former Illinois Gov. Ryan's death penalty commission, which recommended major reforms there.
Banks' lead appellate lawyer, George H. Kendall of the NAACP Legal Defense Fund, said he hopes the friend-of-the-court brief will add oomph to his pending Supreme Court brief, which raises the same issues and others, including a claim that prosecutors violated Banks' rights by striking all blacks from the jury.
"These folks spent their careers concerned about the administration of justice," Kendall said, referring to the four men who signed the brief. "They looked at this case and said this is not acceptable. They said the lower courts failed here."
Banks was convicted primarily on the testimony of two witnesses, both of whom had been convicted of drug charges in the past. Charles Cooks, who had two felony convictions, was facing arson charges that could have brought a life sentence when he testified that Banks had confessed to the murder. Soon afterward, the arson charges were dropped by prosecutors. Cooks recanted his testimony in 1999.
The friend-of-the court brief emphasizes that prosecutors failed to divulge that Cooks lied to the jury when he said his testimony was not rehearsed with prosecutors. It also notes that Robert Farr, the other key witness who testified that Banks told him he planned to commit other violent crimes, lied when he said that he had not been a paid informant.
Lewis Rafaelli, the Bowie County district attorney who was the lead prosecutor, vouched for the credibility of the duo and stressed the importance of their testimony even though he knew that they had testified falsely, according to evidence unearthed years after the trial. Rafaelli is dead. James Elliott, the assistant prosecutor on the case, said he still believes that Banks is guilty.
Banks' trial lawyer, Lynn Cooksey, told the trial judge at the time he had done little preparation, never went to the crime scene and did not have key information he was supposed to have gotten from the prosecutors -- including the criminal records of prosecution witnesses. Cooksey presented no witnesses during the trial, relying solely on cross-examination.
In addition, Cooksey prepared no witnesses to testify on Banks' behalf at the trial's penalty phase. When an all-white jury returned a guilty verdict at 11 p.m., Banks' mother, Ellean fainted in the courtroom. After friends revived her, she received another jolt. Cooksey told her she needed to call her minister to round up some witnesses who could testify on her son's behalf the following morning when the trial's penalty phase would commence. Several witnesses testified that Banks was a nice, churchgoing young man but offered little else.
The prosecutors struck all four blacks who were on the jury panel and Cooksey made no objection. "It seemed like he was just going along with the program -- whatever the D.A. wanted to do," Banks said in an interview with The Times two years ago. If he had been represented by the "wonderful" lawyers that he has now, "I think I could have won" an acquittal, Banks said. (Cooksey did not return calls seeking comment.)
The key testimony against Banks at the penalty phase was presented by Farr, a longtime police informant.
Farr testified that Banks had told him that he intended to commit other violent crimes -- making him a future danger to the state's residents, a key element in securing a death sentence in Texas.
Nearly 20 years after the trial was conducted, private investigators retained by Legal Defense Fund attorney Kendall tracked down Farr, who had moved to California. Farr signed an affidavit saying he was paid by police to help convict Banks and that he had lied during the trial, including his testimony about Banks' plans to commit other crimes in the future.
Three years ago, a federal District Court judge in Texarkana, citing Farr's affidavit and the shoddy legal work of trial lawyer Cooksey, overturned Banks' death sentence while upholding the conviction.
However, in August, the U.S. 5th Circuit Court of Appeals reinstated the death sentence. The court acknowledged that the trial lawyer's work had been seriously deficient but said Banks' appellate attorneys had not proved his lapses had prejudiced his client.
In addition, the appeals court said Banks was too late in raising the issue about the prosecutor's failure to disclose its knowledge that Farr had lied.
The Texas attorney general's office, which is defending the verdict, has urged the Supreme Court to decline further review, saying, "The Court of Appeals applied established federal law and correctly concluded that Banks was not entitled to" relief.
Larry Whitehead, the murder victim's father, said he remains "positive" of Banks' guilt and plans to attend the execution -- along with his wife and other family members -- unless a stay of execution is granted by a court or Texas Gov. Rick Perry, a staunch supporter of capital punishment. "The execution's not assured yet," Whitehead said. "We are going on 23 years now."
The Supreme Court, the Texas Court of Criminal Appeals or the governor could act on the case as soon as Monday. The only clear deadline is 6 p.m. CST Wednesday -- the scheduled hour of execution.