Los Angeles Times

UPDATE: On Feb. 24, 2004, the US Supreme Court overturned Delma Banks' death sentence.  The decision means Banks can continue to press his appeals in lower courts.  The Court's decision was based on prosecutorial misconduct, withhold evidence that tended to prove his innocence.  Click HERE to read the full decision.

THE NATION

Supreme Court's Reprieve Halts Texas Execution at Last Minute

The justices, who rarely agree to hear such cases, issued stay without explanation.

By Henry Weinstein
Times Staff Writer

March 13, 2003

In a highly unusual intervention, the U.S. Supreme Court granted a stay of execution to Delma Banks Jr. just minutes before he was to be given a lethal injection Wednesday in Texas.

The high court issued the stay without explanation about 5:50 p.m. Texas time, just 10 minutes before Banks was to become the 300th inmate executed there since the state resumed capital punishment in 1982.

"I just thank the Lord," said Banks, 44, according to an official at the Huntsville prison. He has been on Texas' death row for more than 22 years.

The order said the stay would remain in effect until the court determines whether to grant full review of Banks' case. If the court grants review or sends the case back to a lower court, the stay could be prolonged; if the court denies review, then the execution could be promptly rescheduled.

The Supreme Court seldom agrees to hear death penalty appeals -- about 1% of all those submitted -- and even more rarely grants a stay.

Banks' case has drawn national attention in recent days because of the involvement of former FBI Director William S. Sessions, two former federal appeals court judges from Philadelphia and a former U.S. attorney from Chicago. The four signed a legal brief urging the high court to halt the execution and review the case.

Banks insists that he was wrongly convicted of murdering Richard W. Whitehead, 16, who was found with two bullets in his head in a park near Texarkana, Texas, in April 1980. Banks had been with Whitehead part of the last night that Whitehead was seen alive.

Family and friends of both Banks and Whitehead had gathered at the prison for what turned out to be a joyous occasion for Banks' supporters and one of dismay for the Whitehead family.

"We lived to fight again, and that's what we wanted," said Banks' lead appellate lawyer, George H. Kendall of the NAACP Legal Defense and Educational Fund. "Delma Banks, who has maintained his innocence from the beginning, found justice in the courts today. Now that the justices have time to focus on this case, we should have a good chance" to obtain full review, Kendall said by phone shortly after he learned of the stay.

"This was a nerve-racking day," Kendall said. "And as the day goes on, you fear the worst. It was 5 minutes to 6 Texas time and we were ready to go back to the chamber and witness the execution. Then, a guard came in and said a stay had been imposed. There was joyful dancing in the streets by Delma's family members."

Kendall said he had not been able to talk with his client.

He readily acknowledged that "we know this was not a good day for the Whiteheads," who have been pressing for Banks' execution. "Our fight is not with them," he said.

The Whiteheads could not be reached for comment Wednesday, but in an interview last week, Larry Whitehead, the murder victim's father, said he is positive that Banks is guilty. He expressed dismay that Banks was attracting sympathy and said his son was being forgotten. "The only thing broke about the system is that it needs to take less than 23 years for their punishment to be carried out. That is too long a time," Whitehead said.

However, Banks' attorney described the case as fraught with material and intentional state misconduct. "The state allowed its key witnesses to repeatedly lie to the court and jury, and urged the jury to trust without question all the perjured testimony," Kendall said.

The brief filed by Sessions and the others said it would be "a miscarriage of justice" to permit the execution to go forward because there were "uncured constitutional errors" in Banks' case. "The significance of this case extends well beyond the interests of those who are personally involved in it," wrote Sessions, former Appeals Court Judges John J. Gibbons and Timothy K. Lewis, and former U.S. Atty. Thomas P. Sullivan, in a friend-of-the court brief. "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 ... this Court should grant review," the brief argued.

Banks' petition to the Supreme Court raised three major issues. He contended that prosecutors had unfairly removed blacks from his trial jury, that they failed to divulge potentially exculpatory information and that his trial lawyer provided constitutionally deficient representation.

Banks, who had no criminal record prior to being charged with Whitehead's murder, is African American; Whitehead was white. The case was tried by an all-white jury. The prosecutors struck all four blacks from the jury and Banks' trial lawyer raised no objections. The attorney, Lynn Cooksey, admitted he had done little preparation for the case and never went to the crime scene.

James Elliott, the assistant prosecutor, maintained that they had done nothing wrong and that the blacks were struck from the jury for valid reasons.

Nearly three years ago, a federal district court judge in Texarkana overturned the death sentence, citing shoddy representation by Banks' trial lawyer and the prosecutors' failure to reveal that one of their key witnesses had been paid to help the police in the case. The two key witnesses against Banks have since recanted their testimony.

Last year, the U.S. 5th Circuit Court of Appeals reinstated the death sentence. That set the stage for a new round of appeals. On Monday, the Texas Court of Criminal Appeals declined to review the case again.

Banks' stay came amid increasing controversy over whether the death penalty is administered fairly in Texas, which has executed far more individuals than any other state. Texas already has executed 10 men this year. Another 10 are set to die between now and early July, with the next one only a week away.

*Associated Press contributed to this report.

Death Penalty Issues
Truth in Justice