Supreme Court stays Banks' execution
03/12/2003
HUNTSVILLE, Texas - The U.S. Supreme Court, acting on appeals that raised questions about the legitimacy of his conviction, granted a last-minute reprieve Wednesday to keep condemned killer Delma Banks from becoming the 300th prisoner executed in Texas.
"I just thank the Lord," Banks said when informed by prison officials about 10 minutes before he could have been moved to the death chamber gurney. "Give Jesus all the credit."
Family members waiting outside the prison Wednesday night jumped joyously and hugged as word spread.
"I wish we could have brought it to a conclusion today," said James Elliott, a prosecutor who helped win Banks' conviction in 1980. "But I've been here 23 years and I'm prepared to stay here to see it through.
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Banks already had his last meal of two double-meat cheeseburgers and two orders of french fries when the stay came. "It was good," he said before officers returned him the nearly 50 miles east to the Polunsky Unit near Livingston, home of Texas death row.
With the reprieve, condemned murderer Keith Clay now becomes the potential No. 300 with his scheduled March 20 execution.
The court issued Banks' stay, without comment, for the 1980 murder of 16-year-old Richard Wayne Whitehead, a co-worker at a restaurant. Banks shot Whitehead "for the hell of it" after a night of drinking, according to a witness at Banks' trial.
The stay in Banks case will remain in effect until the high court decides whether to review his case. No justices noted objections to the reprieve.
Bank's attorney, George Kendall, drew support of three former federal judges, including William Sessions, a former FBI director, in his appeal.
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. Virginia is second with 87.
Convicted murderer Bobby Glen Cook became No. 299 Tuesday night when he was put to death for killing and robbing an East Texas fisherman 10 years ago. It was the 10th execution this year in the state, which is on a pace to top the record 40 injections carried out in 2000.
In spending more than half of his life awaiting lethal injection, Banks was on death row longer than the 16-year-old victim in his case was alive.
"There is absolutely no doubt in our minds that he is guilty," Larry Whitehead, whose son was gunned down at a park near his Texarkana-area home and had his car stolen, said earlier this week. "All these articles about poor Delma, poor Delma and how much of a raw deal he got.
"Stopping a youngster's life at 16 years old is a raw deal."
The Whitehead family was in the prison to witness the execution when the reprieve was granted. They declined to comment.
Banks' lawyers argued his trial attorney did a poor job, prosecutors improperly disqualified blacks from his jury and testimony from two witnesses against Banks was 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.
Sessions, in an accompanying brief to the high court, alleged "uncured constitutional errors in the process through which (Banks) was convicted and sentenced."
More than 20 state lawmakers, including Sen. Rodney Ellis, Sen. Jeff Wentworth and Reps. Sylvester Turner and Ron Wilson, had called on Wednesday for Gov. Rick Perry to give Banks a 30-day reprieve.
In two letters to Perry, the lawmakers pointed to problems during Banks' trial and a letter from a group of state representatives said there was perjured testimony in the case.
"We have a moral responsibility to ensure that the death penalty is assessed judiciously," the letter from a several state senators said. "The circumstances surrounding this situation cannot guarantee us a clear conscience."
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.
The 16-year-old Whitehead, from Wake Village, just west of Texarkana, had worked with Banks 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 told a witness who testified 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. 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.
The car never was found but Banks led police to the .25-caliber pistol tied to the slaying.
"I have no doubt at all, none at all that he is the murderer," replied Elliott. "I take absolute and full responsibility 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 a skilled former district attorney, and other witnesses tied Banks to the crime besides one who has submitted an affidavit for Banks' attorneys recanting his trial testimony.
"The fact of the matter is Delma led police to the murder weapon in Dallas," Elliott said. "Three independent witnesses at the house said that the car was there and Banks was there.
"They (appeals lawyers) want to do all this theatrical stuff but they don't want to talk about the facts of the case."
Banks, who dropped out of school in the 11th grade, had no previous criminal record. His father, testifying at the trial, called him a "nice son" who had fallen in with "the wrong bunch."
Online at: http://www.dallasnews.com/latestnews/stories/031303dntexexecution_stay.15c27.html