Texas to execute 300th inmate

HUNTSVILLE, Texas - In the 22 years since convicted killer Delma Banks arrived on Texas death row, he's watched 299 prisoners be taken away for execution. Barring a U.S. Supreme Court reprieve, he'll be No. 300 Wednesday night.

"You're talking to men, one day they move them out and they don't return," Banks, 44, condemned for a fatal shooting near Texarkana, recently told the Houston Chronicle.

In spending more than half of his life awaiting lethal injection, Banks has been on death row longer than the 16-year-old victim in his case, Richard Wayne Whitehead, was alive.

"I'm terribly upset it's gone on for this long period of time," says Larry Whitehead, whose son was gunned down and had his car stolen in 1980. "It's very frustrating and very hard on us and has been for the fact this keeps coming back up."

The 299th execution since Texas resumed carrying out capital punishment in 1982 -- and 10th this year -- occurred Tuesday night when Bobby Glen Cook received lethal injection for killing Edwin Holder, 42, a fisherman who was robbed and shot in the head Feb. 6, 1993, while he slept along the Trinity River in Anderson County in East Texas.

The Texas Court of Criminal Appeals earlier this week refused to block Banks' execution and the Texas Board of Pardons and Paroles dismissed a petition for commutation and reprieve because it was filed too late.

"Texas is more concerned with compiling execution statistics than pursuing justice," said Rick Halperin, president of the Texas Coalition to Abolish the Death Penalty.

Texas accounts for more than one-third of the 835 executions in the United States since 1976, when the death penalty resumed under a Supreme Court ruling. No other state is even close. Virginia is second with 87.

"We are confident that the United States Supreme Court will intervene and prevent Mr. Banks' execution," said one of Banks' lawyers, George Kendall, whose appeal has drawn support of three former federal judges, including William Sessions, a former FBI director.

Banks' lawyers argued his trial attorney did a lousy job, prosecutors improperly disqualified blacks from his jury and two witnesses against Banks were shaky in a case where Banks should have been found innocent.

"Mr. Banks' case is fraught with the kind of unreliability that we know leads to wrongful convictions," said Kendall, an attorney for the NAACP Legal Defense Fund.

In an accompanying brief to the high court, Sessions complained of "uncured constitutional errors in the process through which (Banks) was convicted and sentenced."

The 16-year-old Whitehead, from Wake Village, just west of Texarkana, knew Banks. Both worked together at a restaurant. The night of April 11, 1980, Banks ran into Whitehead and his girlfriend after a high school dance and asked for a ride home. Banks, then 21, bought some beer and the trio went to a park in nearby Nash.

They took the girl home about 11 p.m., then returned to the park, where Whitehead was shot in the head "for the hell of it," Banks said, according to testimony at his trial.

Evidence showed he drove Whitehead's car to Dallas where he dumped it, gave away the pistol and returned home by bus. The car never was found but the .25-caliber pistol was recovered and tied to the slaying. Whitehead's body was found two days later. Banks was arrested in Dallas, where he returned about 10 days later to get a gun so he and two other men could commit some robberies, he said at his trial.

"I have no doubt at all, none at all that he is the murderer," replied James Elliott, a prosecutor at Banks' 1980 trial. "I take absolute and full responsiblity for my part in this case in placing him on death row. That is exactly where he needs to be, in my opinion."

Elliott said Banks, a black man, was left with an all-white trial jury because blacks in the jury pool had to be excused for knowing Banks or his family, that Banks' trial lawyer was the former district attorney in the county and was competent to handle the case, and other witnesses tied Banks to the crime besides one who has submitted an affidavit for Banks' attorneys recanting his trial testimony.

"They want to do all this theatrical stuff but they don't want to talk about the facts of the case," Elliott said of the efforts to spare Banks.

Banks, who dropped out of school in the 11th grade, had no previous criminal record. His father testified at the trial that Banks was a "nice son" who had fallen in with "the wrong bunch."

AP
Delma Banks

Texas to execute 300th inmate

Excerpt:

"Mr. Banks' case is fraught with the kind of unreliability that we know leads to wrongful convictions," said Kendall, an attorney for the NAACP Legal Defense Fund.

< snip >

"They want to do all this theatrical stuff but they don't want to talk about the facts of the case," Elliott said of the efforts to spare Banks.

Please let me know if you want ON or OFF my Texas Executions ping list!. . .don't be shy.

http://www.prodeathpenalty.com/Pending/03/mar03.htm

Date of scheduled execution	State	Victim name	Inmate name	Status
March 12, 2003	Texas	Richard Wayne Whitehead	Delma Banks	pending
Not long before his death, Wayne had bought a 1969 Ford Mustang, which was his pride and joy. He left his parent's home on the night of April 11, 1980 to attend a high school dance. Wayne's body was found on the morning of April 15, 1980. He had been shot three times, twice in the head and once in the upper back. One shot had been fired at a maximum distance of 18 to 24 inches. Several empty beer cans and two spent shell casings were found near the scene. A female friend of Wayne's testified that she was with him during the evening of April 11, 1980. That evening, Wayne was driving his automobile, a 1969 Mustang with a light green colored body. Later, the pair ran into Banks at the local bowling center, and at his suggestion they purchased some beer. Wayne worked with Banks at the local Bonanza Steak House. The three went to the park near Nash, Texas and drank the beer. At approximately 11:00 or 11:15 p.m. Whitehead took the girl home. Another friend testified that Banks and Whitehead visited her at her house around 11:30 p.m. on April 11. They stayed for approximately 10 to 15 minutes. A man who lived about 100 yards from the park in Nash testified that at approximately 4:00 a.m. on April 12, he heard two gun shots. Charles Cook testified that he met Banks on the morning of April 12 in Dallas. Banks was driving a vehicle which had the same description as Whitehead's. Cook and his wife befriended Banks and allowed him to stay with them at Cook's grandfather's home. Cook had noticed a sprinkle of blood on Banks' pants and asked Banks about it. Banks told him that he "shot a white boy." Later that evening, Banks told Cook that he had killed someone. Banks told him he had been riding around with a "white boy" and his girlfriend, and after they took the girl home, he and the boy went to the woods together and drank beer. Banks decided to kill the person "for the hell of it" and take his automobile to Dallas. Cook eventually obtained a pistol and the automobile from Banks. Cook sold the pistol to his neighbor and left the automobile in West Dallas. It was never recovered. The pistol was recovered from the neighbor and was identified through ballistic testing as the murder weapon. Cook's wife and sister testified that they saw Banks driving a green Mustang on April 12. Cook's grandfather stated that Banks stayed at his house for a night or two. Additionally, telephone records reveal that Banks made a collect call home to Texarkana from Cook's grandfather's house during the course of the weekend. Cook's neighbor also testified that he met Banks during the same time. Banks told him he had a little misunderstanding with someone and had broken his jaw or "something like that." Banks did not testify and did not present any evidence during the guilt phase of his trial. At the time of Banks' 1980 capital murder trial, he did not have any previous felony convictions. However, during the punishment phase of trial, the prosecution offered evidence that Banks had pistol-whipped and threatened to kill a man only a few days before Whitehead's death. The State also presented evidence that Banks later attempted to recover the murder weapon so that it could be used in future armed robberies. Banks confirmed both incidents when he testified in his own defense during sentencing proceedings. Banks' sentence had been overturned by a federal judge, but was reinstated by the 5th Circuit court. Bowie County First Assistant District Attorney James Elliott prosecuted Banks in the original trial with then-Bowie County District Attorney Louis Raffaelli. Elliott was prepared to battle the Banks/Whitehead case in Bowie County had the appellate court upheld Folsom's ruling, which ordered a new sentencing trial for Banks. "I entertained a possibility that it would have to be tried over again, both the guilt/innocence phase and the punishment, due to our federal court's ruling. But the thing that makes me most happy about this case is not Delma Banks' death but that the Whiteheads' long nightmare may come to an end in part because of this. I'm sure it has been a long nightmare for them," Elliott said. Larry Whitehead said he and his wife, Jackie, had real fears that Banks would be tried again. He called Folsom's ruling a low point in their family's life. "After 20 years of this battle going for them to overrule it that way, when you try to start to get these people and witnesses together after all these years, it's tough. We actually started to try to track people down," Larry Whitehead said. "I respect a reasonable time to review a case, but 23 years is too long." Elliott said that his investigator on the case is dead. One of two key witnesses is dead. The surviving witness has had numerous felony convictions, which could be problematic for prosecutors. "It would have been difficult but not impossible," Elliott said. He had been with the prosecutor's office for a year and Banks' case was his 1st murder trial. During that trial Elliott handled the technical aspects of the case but has remained involved with it for the past 22 years. "I retired with 23 years of service and this lasted 22," Elliott said. "I did not want to leave this office with this one unresolved. This is almost like a permission slip to let my breath out after 22 years." The Whiteheads have remained in contact with Elliott throughout the years and shared with him their belief that the death sentence would be reinstated after they heard Banks' and the state's arguments before the 5th Circuit in March. "I actually felt pretty good after the hearing in March. My wife and I went to the hearing in March and sat through it. I felt pretty good about the questions that the judges were asking and what was going on at that time. I felt like we would get a favorable decision," Larry Whitehead said. But he says it is still a waiting game as the appeals are not yet exhausted. Larry Whitehead called the 5th Circuit's ruling a major hurdle to overcome. "Getting that overturned and sent back was a big step. We kind of feel now that we're on the downhill of this climb," Larry Whitehead said. Elliott said in all likelihood, Banks' execution will be set for early 2003. Larry Whitehead said he understands the need to set an execution date up to 150 days away to accommodate the time necessary for Banks' final appeals to clear. Elliott said based on the lengthy 5th Circuit ruling, he does not think the court will reverse itself. He and Whitehead also doubt Banks will have any success with the U.S. Supreme Court. Banks has 90 days to petition the nation's high court once the 5th Circuit's ruling becomes final. For the Whiteheads, the appellate ruling does not yet seem real. "We've been disappointed so many times in the past, it's hard to take anything solid anymore. You just kind of wonder what's going to happen. I never expected that it would come up for retrial after 20 years like it did," Larry Whitehead said. He and his wife plan to attend the execution if it is carried out. But that will not totally ease the pain that he says they suffer daily since losing their son 22 years ago. "Of course, nothing will bring our son back, but we do feel that justice needs to be served," Larry Whitehead said. Through the various court battles over the years, Elliott says he has no personal hatred for Banks. "I hate what he did, but I don't hate him," Elliott said. He does not believe the killing was so Banks could steal Whitehead's car. The car was ditched in Dallas. "He says he killed a white kid for the hell of it. I have no idea how Delma Banks felt about white people," Elliott said. But he believes it was cold-blooded since Banks had worked with Whitehead at Bonanza the summer before the murder. Whitehead was giving Banks a ride home on a rainy Friday night after the 2 saw each other at an area bowling alley. It is the victim in the case that makes it personal for Elliott. "I still remember Wayne Whitehead's face and how he looked at death," Elliott said.

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