End is nearing for death row old-timer
Posted: Sun Mar 09, 2003 3:36 pm
Delma Banks Jr. presses his prison identification card against a window at the Polunsky Unit to illustrate just how long he has been on death row.
On the card is a 22-year-old photograph of Banks with jet-black hair, a thin face, and lips pursed tight and hard. At the other end of the outstretched arm, Banks, 44, is a round-faced and wrinkled black man with graying hair and smile that's quick and easy.
"I'm changed from that young man who was full of vengeance and anger and hate to the old man you see now," he says.
Banks is a rarity on Texas' death row -- an old-timer. Of the 440 men and eight women with death sentences in Texas, only 15 men have been on death row for more than two decades. Banks is one of them, sent there from Bowie County for the 1980 murder of 16-year-old Richard Wayne Whitehead near Texarkana.
The typical stay on Texas' death row is 10 1/2 years, and that is decreasing because of changes to capital law that limit appeals and set strict time limits for filing them. Many recent executions have taken place within six or seven years of a conviction.
Banks is from a lost time in Texas, when attorneys could file multiple appeals in capital cases as long as they had legitimate issues for the court to consider. His longevity also can be attributed to delays caused by changes in capital law and troubling problems with his trial that have yet to be fully addressed.
But his time appears to be about up. He is scheduled to be executed at the Huntsville Unit prison on Wednesday. If he is, he will be the 300th person put to death in Texas since 1982. Banks has been around for the other 299.
"You're talking to men, one day they move them out and they don't return," he said.
This is the 15th scheduled execution date for Banks, and all that stands between him and the death chamber gurney are two appeals, one before the U.S. Supreme Court and the other before the Texas Court of Criminal Appeals. Even his lawyers acknowledge chances are slim Banks will be spared this time.
"If I were betting, I would be betting heavily on the state," said George Kendall, an attorney with the NAACP Legal Defense and Educational Fund.
Whitehead's family is ready for Banks to die.
"I respect a reasonable time to review a case," said father Larry Whitehead, "but 23 years is too long."
A capital murder
Banks is from the small town of Nash, not far from Texarkana, the son of a Red River Army Depot office worker and a construction worker for the Bowie County government. He dropped out of school in the 11th grade, and to this day he cannot read well.
Whitehead was the opposite, a gifted student who liked to bowl and tinker with cars.
Their disparate lives intersected at a steakhouse in Texarkana where they both worked.
The Friday night he was murdered, Whitehead had gone to a school dance and then to a bowling alley. There he ran into Banks, who asked him for a ride home.
Whitehead's body was discovered in a park the following Monday. By that time, Banks was in Dallas looking for a job and a cousin who lived there.
Banks never confessed to the crime, but Bowie County prosecutor James Elliott is convinced he shot Whitehead three times "just to see what it felt like to kill a kid" and to steal his 1969 Ford Mustang.
Police never recovered the missing car or any of the items in it, but they did recover a gun from a home in Dallas that the Department of Public Safety crime lab said was the murder weapon.
During the trial, prosecutors tried to strike a deal with Banks: a life sentence for a guilty plea. At the time, he would've been eligible for parole in about seven years, the judge told him.
Banks insisted he was innocent and refused.
"Thinking about it now, I'd have took it because you can't win," Banks says.
The all-white jury hearing the case convicted Banks and sentenced him to die.
22 years of appeals
That Banks' case has been pending nearly 23 years after his conviction can be attributed as much to the criminal justice system as it can to his attorneys.
Capital defendants appeal their cases on two legal tracks. One is a direct appeal that asks higher courts to review the trial. The other is called a writ of habeas corpus, and it is more or less a request for a review of constitutional questions and other issues such as newly discovered evidence.
There have been five habeas appeals in Banks' case.
Longview lawyer Clifton "Scrappy" Holmes wrote the habeas appeals for Banks. Holmes insists he wasn't trying to drag the case out, just provide a vigorous defense.
Holmes said he threw the first habeas appeal together in just a matter of weeks so that it could be filed in time to prevent an execution. He said the trial court expected him to file a more thorough habeas appeal later, which he did in about a year.
That appeal lingered before the criminal appeals court for more than five years.
When a ruling finally came, Holmes said he didn't think it was legally correct. So he filed a third habeas appeal.
By this time, the Legal Defense and Educational Fund had joined the case and asked why Bowie County prosecutors used preemptive strikes to eliminate the only four blacks in the jury pool.
The circumstances that enabled Banks' case to linger as long as it has no longer exist today. The federal Anti-Terrorism and Effective Death Penalty Act that became law in 1996 affects capital appeals in state and federal courts. It created tight deadlines for filing appeals, limited opportunities for evidentiary hearings and allows only one federal habeas appeal.
Elliott said Banks' case shows why the legislation was necessary.
Still problems
Banks' case is still being appealed, and his current attorneys say it is rife with the types of problems frequently seen in capital cases in Texas.
Most troubling, said the Legal Defense Fund's Kendall, was the behavior of Bowie County prosecutors.
Kendall said he has only recently discovered that prosecutors failed to tell Banks' defense attorney that police had paid a key witness in the case $200 for his participation. What's more, the witness took the stand and denied he had been paid. In their closing arguments, prosecutors vouched for his credibility.
It's something Elliott regrets today. He said that at the time he was new to the office and in no position to correct his boss, former District Attorney Louis Raffaelli.
A federal judge was so troubled by prosecutors' conduct and the poor quality of defense Banks received that she threw out his death sentence in 2000. The state appealed, and the U.S. 5th Circuit Court of Appeals re-instated the death sentence last year.
Banks' attorneys want the Supreme Court to consider the damage done to the defense by the deception. They also have asked the court and court of criminal appeals to look at the performance of Banks' defense attorney and the dismissal of blacks from the jury pool.
Also, the defense said two key witnesses in Banks' case have since recanted their testimony, but they have been procedurally barred from presenting the evidence to a state court.
Prepared to die
Banks has been in this position before. Over the years, he has come so close to being executed that he ordered a final meal and arranged for his funeral. If the courts reject his latest appeals, he said, he is prepared to die.
Banks has made his peace with God and is zealous about his Christianity. He knows people are skeptical of jailhouse conversions, but he is not concerned about what they think. His faith is sincere, he insists.
"Whatever is God's will, will be done," he said.
On the card is a 22-year-old photograph of Banks with jet-black hair, a thin face, and lips pursed tight and hard. At the other end of the outstretched arm, Banks, 44, is a round-faced and wrinkled black man with graying hair and smile that's quick and easy.
"I'm changed from that young man who was full of vengeance and anger and hate to the old man you see now," he says.
Banks is a rarity on Texas' death row -- an old-timer. Of the 440 men and eight women with death sentences in Texas, only 15 men have been on death row for more than two decades. Banks is one of them, sent there from Bowie County for the 1980 murder of 16-year-old Richard Wayne Whitehead near Texarkana.
The typical stay on Texas' death row is 10 1/2 years, and that is decreasing because of changes to capital law that limit appeals and set strict time limits for filing them. Many recent executions have taken place within six or seven years of a conviction.
Banks is from a lost time in Texas, when attorneys could file multiple appeals in capital cases as long as they had legitimate issues for the court to consider. His longevity also can be attributed to delays caused by changes in capital law and troubling problems with his trial that have yet to be fully addressed.
But his time appears to be about up. He is scheduled to be executed at the Huntsville Unit prison on Wednesday. If he is, he will be the 300th person put to death in Texas since 1982. Banks has been around for the other 299.
"You're talking to men, one day they move them out and they don't return," he said.
This is the 15th scheduled execution date for Banks, and all that stands between him and the death chamber gurney are two appeals, one before the U.S. Supreme Court and the other before the Texas Court of Criminal Appeals. Even his lawyers acknowledge chances are slim Banks will be spared this time.
"If I were betting, I would be betting heavily on the state," said George Kendall, an attorney with the NAACP Legal Defense and Educational Fund.
Whitehead's family is ready for Banks to die.
"I respect a reasonable time to review a case," said father Larry Whitehead, "but 23 years is too long."
A capital murder
Banks is from the small town of Nash, not far from Texarkana, the son of a Red River Army Depot office worker and a construction worker for the Bowie County government. He dropped out of school in the 11th grade, and to this day he cannot read well.
Whitehead was the opposite, a gifted student who liked to bowl and tinker with cars.
Their disparate lives intersected at a steakhouse in Texarkana where they both worked.
The Friday night he was murdered, Whitehead had gone to a school dance and then to a bowling alley. There he ran into Banks, who asked him for a ride home.
Whitehead's body was discovered in a park the following Monday. By that time, Banks was in Dallas looking for a job and a cousin who lived there.
Banks never confessed to the crime, but Bowie County prosecutor James Elliott is convinced he shot Whitehead three times "just to see what it felt like to kill a kid" and to steal his 1969 Ford Mustang.
Police never recovered the missing car or any of the items in it, but they did recover a gun from a home in Dallas that the Department of Public Safety crime lab said was the murder weapon.
During the trial, prosecutors tried to strike a deal with Banks: a life sentence for a guilty plea. At the time, he would've been eligible for parole in about seven years, the judge told him.
Banks insisted he was innocent and refused.
"Thinking about it now, I'd have took it because you can't win," Banks says.
The all-white jury hearing the case convicted Banks and sentenced him to die.
22 years of appeals
That Banks' case has been pending nearly 23 years after his conviction can be attributed as much to the criminal justice system as it can to his attorneys.
Capital defendants appeal their cases on two legal tracks. One is a direct appeal that asks higher courts to review the trial. The other is called a writ of habeas corpus, and it is more or less a request for a review of constitutional questions and other issues such as newly discovered evidence.
There have been five habeas appeals in Banks' case.
Longview lawyer Clifton "Scrappy" Holmes wrote the habeas appeals for Banks. Holmes insists he wasn't trying to drag the case out, just provide a vigorous defense.
Holmes said he threw the first habeas appeal together in just a matter of weeks so that it could be filed in time to prevent an execution. He said the trial court expected him to file a more thorough habeas appeal later, which he did in about a year.
That appeal lingered before the criminal appeals court for more than five years.
When a ruling finally came, Holmes said he didn't think it was legally correct. So he filed a third habeas appeal.
By this time, the Legal Defense and Educational Fund had joined the case and asked why Bowie County prosecutors used preemptive strikes to eliminate the only four blacks in the jury pool.
The circumstances that enabled Banks' case to linger as long as it has no longer exist today. The federal Anti-Terrorism and Effective Death Penalty Act that became law in 1996 affects capital appeals in state and federal courts. It created tight deadlines for filing appeals, limited opportunities for evidentiary hearings and allows only one federal habeas appeal.
Elliott said Banks' case shows why the legislation was necessary.
Still problems
Banks' case is still being appealed, and his current attorneys say it is rife with the types of problems frequently seen in capital cases in Texas.
Most troubling, said the Legal Defense Fund's Kendall, was the behavior of Bowie County prosecutors.
Kendall said he has only recently discovered that prosecutors failed to tell Banks' defense attorney that police had paid a key witness in the case $200 for his participation. What's more, the witness took the stand and denied he had been paid. In their closing arguments, prosecutors vouched for his credibility.
It's something Elliott regrets today. He said that at the time he was new to the office and in no position to correct his boss, former District Attorney Louis Raffaelli.
A federal judge was so troubled by prosecutors' conduct and the poor quality of defense Banks received that she threw out his death sentence in 2000. The state appealed, and the U.S. 5th Circuit Court of Appeals re-instated the death sentence last year.
Banks' attorneys want the Supreme Court to consider the damage done to the defense by the deception. They also have asked the court and court of criminal appeals to look at the performance of Banks' defense attorney and the dismissal of blacks from the jury pool.
Also, the defense said two key witnesses in Banks' case have since recanted their testimony, but they have been procedurally barred from presenting the evidence to a state court.
Prepared to die
Banks has been in this position before. Over the years, he has come so close to being executed that he ordered a final meal and arranged for his funeral. If the courts reject his latest appeals, he said, he is prepared to die.
Banks has made his peace with God and is zealous about his Christianity. He knows people are skeptical of jailhouse conversions, but he is not concerned about what they think. His faith is sincere, he insists.
"Whatever is God's will, will be done," he said.