Prosecutorial Misconduct and Ineffective Counsel: The Case of Delma Banks, Jr.

By George Kendall, counsel for Delma Banks, Jr.

Delma Banks, Jr., is a 43-year old African-American man. The State of Texas intends to execute him on March 12, 2003. In 1980, he was convicted and death-sentenced in Bowie County (east Texas) for the murder of sixteen-year-old Richard Whitehead, a white male. From the moment of his arrest, Mr. Banks has protested that he did not kill Mr. Whitehead and is innocent of this crime. He had never before been convicted of a crime.

Deliberate prosecutorial misconduct and egregious ineffective assistance by defense counsel prevented the jury from hearing much of the most important evidence in the case. A federal district court granted relief to Mr. Banks because of these errors but the court of appeals reinstated the death sentence.

The case against Mr. Banks depends upon the testimony of two unreliable witnesses who have since recanted their incriminating testimony, and is further impeached by scientific evidence law enforcement possessed at the time of trial.

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, and then shot him three times at 4:00 a.m., stole his car and drove to Dallas, 180 miles away in time to meet the state’s key guilt phase witness, Charles Cook, at 8:30 a.m. There is no dispute that Mr. Banks and Mr. Whitehead were together, and state witnesses saw no evidence of any problems between the two. Cook later testified that Banks told him that he had killed someone, and left with Cook the victim’s car and the murder weapon.

We now know that Cook’s testimony is highly unreliable:

  • At trial, the prosecutors suppressed a lengthy pretrial transcript of a rehearsal meeting with Cook where he could not keep his account straight. This document shows repeated coaching of Cook. Cook later told the jury he was not coached; this statement 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 because he feared prosecution, and later testified falsely at trial because he faced a serious charge in Dallas, and was told he would spend the remainder of his life in prison if he did not testify that Banks had confessed to him. This recantation was corroborated by a sister and former wife who also testified at trial.
  • Cook was a twice-convicted felon and drug addict.

The other key state’s witness was Robert Farr. He told the jury during the penalty phase that Mr. Banks had told him that he wanted to commit other armed robberies and would kill the victims if necessary. He denied that he was a paid informant for the state.

We now know that Farr’s critical testimony was unreliable:

  • In 1999, Farr testified that he was a paid informant in this case.
  • He also testified that his important testimony about Mr. Banks’ intention to commit other violent crimes was a lie.


The State’s assertion that Mr. Banks shot Mr. Whitehead at 4:00 a.m. on April 12 in time to drive Mr. Whitehead’s car to Dallas to meet Charles Cook at 8:30 a.m. is flatly inconsistent with:

  • The state’s autopsy findings: the state pathologist identified a number of factors that all but rule out an April 12, 4:00 a.m. time of death; unrebutted testimony from a distinguished pathologist places the time of death twenty-four hours later, a time when it is certain Mr. Banks was in Dallas.
  • Whitehead’s ailing car: state witnesses told investigators that Mr. Whitehead’s car was unable to run for long periods without the lights dimming and repeatedly needing a jump to start it. Unrebutted expert testimony from a mechanic confirmed that without repair that was not available during the wee hours of the morning, this car could not have driven 180 miles to Dallas. Moreover, the car was never found in Dallas.
  • The jury never heard any of this testimony.

Trial counsel made next to no effort to challenge the State’s case at either the guilt or punishment phases of trial. We now know:

  • He performed no meaningful pretrial investigation and had not reviewed the state’s witness list or autopsy reports prior to trial.
  • He failed to cross examine several state witnesses.
  • After the guilt verdict was returned at 11:00 p.m., he asked Mrs. Banks to summon witnesses for the penalty phase hearing the next day. She had fainted and was on the way to the hospital. She had to check herself out of the hospital to get home to call such witnesses. Several showed up the following morning. Trial counsel put them on the stand without ever speaking to them about what testimony would be relevant or helpful.

The prosecution struck four qualified black jurors assuring an all-white jury in this mixed-race case. These strikes were consistent with a pattern and practice of the prosecution to exclude black jurors from felony jury service. The unrebutted evidence shows the following:

  • Over a six year period, prosecutors accepted more than 80% of white jurors but struck more than 90% of black jurors.
  • Prosecutors used race-coded materials during jury selection.
  • Several defense counsel testified that it was understood that the prosecution would strike black jurors from felony cases.

The only judge who has heard all of the evidence casting doubt upon the State’s case granted sentencing relief on two grounds. She found Farr’s testimony was critical at the sentencing hearing and misled the jury into believing Mr. Banks was far more dangerous than he was. She also found that trial counsel’s representation was pathetic and caused clear harm to Mr. Banks. The federal court of appeals reversed this grant of relief in an unpublished opinion.

Return to Banks v. Dretke page

See also Prosecutorial Misconduct