Grave Doubts Remain in Texas Execution Scheduled for March 12

FOR IMMEDIATE RELEASE
March 5, 2003 CONTACTS: George Kendall, 973-698-0382
Laura Burstein, 202-557-7584

Grave Doubts Remain in Texas Execution Scheduled for March 12

Further Judicial Review Urged by Former FBI Director William Sessions,
Other Prominent Judges and Prosecutors

Attorneys Discuss Case of Delma Banks, Jr. Today at Austin News Conference

Austin, TX, Wednesday, March 5, 2003 - There is substantial doubt that Delma Banks, Jr. committed the crime that he is scheduled to be executed for, said attorneys at a news conference today in Austin, Texas. Mr. Banks, a 43-year-old African American man, is currently scheduled to be executed on March 12, 2003, and has maintained his innocence since the time of his arrest.

In a rare move, the Honorable William S. Sessions, former federal prosecutor, federal judge, and director of the FBI, joined by other distinguished former judges and prosecutors, has filed a brief in the United States Supreme Court supporting Mr. Banks because his claims "by their very nature raise issues that threaten the ability of the adversarial system to produce just results."

Mr. Banks' attorneys described how prosecutors secured a conviction and death sentence against Mr. Banks by knowingly allowing key witnesses to perjure themselves at trial, withholding evidence from the defense and jury that would have thoroughly discredited its key witnesses, and then arguing to the jury that it should believe witnesses it knew were lying.

In addition, the Bowie County District Attorney's Office excluded all of the African American prospective jurors from Mr. Banks trial. Thus, Mr. Banks was convicted and sentenced to death by an all-white jury for the murder of sixteen-year-old Richard Whitehead, a white male.

Mr. Banks, who had no criminal record prior to his 1980 conviction in this case, has steadfastly maintained his innocence since his arrest and refused to plead guilty - despite even the trial judgeís repeated urging to accept the deal offered by the prosecution that likely could have resulted in his release from prison years ago.

Because the Bowie County District Attorneyís Office flouted its legal and ethical obligation to disclose some of the exculpatory evidence for over 19 years, hiding it until after the state courts had denied Mr. Banks' appeals, the Texas courts have yet to consider the full extent of the prosecutors' misconduct.

Mr. Banks has filed a new appeal in the Texas courts which, for the first time, raises the full extent of the prosecutorial misconduct undermining any semblance of integrity or fairness in the proceedings against Mr. Banks. Under these circumstances, the Texas Court of Criminal Appeals acts as a gatekeeper to the appeals process, and must decide before next Wednesday not whether Mr. Banks will get a new trial, but simply whether to afford him one full and fair opportunity to present his case or to slam shut the courthouse doors without any review of the new evidence.

"Mr. Banks' case is fraught with the kind of unreliability that we know leads to wrongful convictions. It is incumbent upon our judicial system to remedy this, but absent authorization from the Texas Court of Criminal Appeals, or intervention from the United States Supreme Court, Mr. Banks will be executed without full review of his case and despite substantial questions regarding innocence," said George Kendall, Banksí attorney and staff attorney of the NAACP Legal Defense Fund.

According to Mr. Sessions and the other distinguished former judges and prosecutors, the issues in Mr. Banks' case "call into question the reliability of the guilty verdict and death sentence in his case . . . ."The amici also underscored the importance of judicial review: "The courts are responsible to capital defendants and to the public to identify and correct constitutional errors in capital cases."

The proceedings that led to Mr. Banks' conviction and death sentence are fraught with the hallmarks of a wrongful conviction: prosecutorial misconduct, deficient defense lawyering, and racism. Further, intentional acts of the Bowie County District Attorney's Office have thwarted full consideration of the evidence at any stage in the process to date, from trial through federal post-conviction proceedings.

The state's theory of guilt is that Mr. Banks hitched a ride with Mr. Whitehead on Friday evening, April 11, 1980, drank with him until the early morning hours of April 12, shot him three times at 4:00 a.m., stole his car and then drove to Dallas - 180 miles away - in time to meet the stateís key guilt phase witness, Charles Cook, at 8:30 a.m. There is no dispute that Mr. Banks and Mr. Whitehead were together, however the State's witnesses saw no evidence of any problems between the two.

At trial, Cook testified that Banks told him that he had killed someone, and then left Cook the victimís car and the murder weapon. The prosecutors, however, suppressed a lengthy transcript of a pretrial rehearsal meeting with Cook, during which he could not keep his story straight. This document shows that prosecutors repeatedly coached Cook, despite his trial testimony that he was not coached - testimony that was not corrected by the prosecution.

In 1999, Cook recanted his trial testimony and explained that he first told police that Mr. Banks was guilty, and later testified falsely at trial, because he was threatened with spending the remainder of his life in prison if he did not testify that Banks had confessed to him. Mr. Cook was a twice-convicted felon and drug addict who was facing a life sentence for an arson charge in Dallas. On the day the jury sentenced Mr. Banks to death, the prosecutor drove to Dallas and had the charges against Mr. Cook dropped.

Absent the purported confession, as reported by Mr. Cook, there is simply no evidence to link Mr. Banks to the crime. Moreover, much of the evidence presented by the State flatly excludes Mr. Banks as a suspect. State's witnesses place Mr. Banks in Dallas at 8:30 a.m. on Saturday, April 12th, and he stayed in Dallas for the remainder of the weekend. Unrebutted forensic evidence shows that the victim was not shot until well after Mr. Banks was in Dallas and that the victimís car could not have made the 180 mile trip from Texarkana to Dallas without significant repair that was unavailable in the wee hours of the morning.

For legal briefs and other background materials or to arrange an interview with Mr. Banks' attorneys, please contact Laura Burstein at 202-557-7584. # # # Return to Press Releases