On Wednesday, March 12, the U.S. Supreme Court granted a stay of execution to Delma Banks Jr., while the court considers his petition for review. Banks learned of the stay at 5:50pm -- just 10 minutes before he would have become the 300th inmate executed in Texas since the resumption of the death penalty in 1976. It was Banks' 15th execution date since his 1980 conviction in Bowie Co. for the murder of 16-year-old Richard Wayne Whitehead. "I just thank the Lord," Banks said. "Jesus deserves all the credit."
Banks' 23-year-old case -- he is now 44 years old -- has drawn attention from unusual sources. Former FBI Director William Sessions, several U.S. district and appellate judges, and former U.S. attorney and Illinois' Ryan Commission Co-Chair Tom Sullivan filed a joint amicus brief supporting Banks' petition. "I get asked to do this amicus brief stuff a lot," Sullivan said. "And normally I do not [do it]. I am not a bleeding-heart advocate, but this case is just so raw that it really cries out for relief." Banks' defenders say his conviction was tainted by prosecutorial misconduct, ineffective assistance of counsel, and race-based jury selection. "I take no position on guilt or innocence," said Sullivan, "but what happened to this man is just not an appropriate way to try a criminal case where the death penalty is involved."
A week before his execution date, Banks spoke to the Chronicle on death row at the Texas Dept. of Criminal Justice Polunsky Unit in Livingston. "This is what has helped me let go of all the anger, vengeance, and hatred," the soft-spoken Banks said, tapping the well-worn burgundy cover of the paperback Bible by his side. "I'm thankful. Whether I live or die, I've found the treasure."
The body of Richard Whitehead was found on Monday, April 14, 1980, in a park near Nash, Texas. On the previous Friday, Whitehead and his girlfriend ran into Banks at a bowling alley, and Whitehead, who knew Banks, offered him a ride. Whitehead and Banks dropped the girlfriend at home before stopping to visit another of Whitehead's friends.
Several weeks later, Banks was charged with capital murder. Prosecutors said that Banks killed Whitehead to steal his car -- never recovered -- and drive to Dallas.
Banks says he did not kill Whitehead and doesn't know who did. "We rode around for a while and went to [a] club and then he dropped me off by my house."
The state's case relied heavily on the testimony of Charles Cook and Robert Farr -- both of whom later recanted. Cook testified he met Banks in Dallas that weekend when Banks drove to his house in Whitehead's car, admitted he'd killed Whitehead, and asked Cook to dispose of the car and the murder weapon, a .25-caliber pistol. Farr claimed Banks asked him to go to Dallas with him shortly after the murder so that Banks could get a gun to commit robberies.
But prosecutors did not tell the court that Farr was a paid informant asked by a Bowie Co. sheriff's deputy to get a gun from Banks. Farr said later he had concocted a story about his needing a gun in order to get Banks to take him to Dallas. According to Banks, Farr -- whom he knew only slightly -- was adamant about Banks helping him find a gun. "The first couple of times I said, 'No way, man,'" he said. "But he kept persisting, saying he needed it to do this and this." Banks eventually provided a gun, but it was not the murder weapon, and prosecutors eventually produced yet another gun they claim Banks used to kill Whitehead.
Prosecutors extensively coached Cook in preparation for his testimony -- years later, a lengthy transcript of the coaching session was turned over to defense attorneys. Shortly after Cook testified, arson charges pending against him in Dallas were dropped.
Banks says he hitchhiked to Dallas that weekend and met Cook when his ride dropped him near Cook's house. "I was going to [Dallas to] try to get a job, [and] I was trying to find my cousin that was living there," he said. "I was dropped off by the bus stop in front of [Cook's] house. We picked up a conversation; he was nice."
Banks says he forgives the lies of Cook and Farr. "People lie for different reasons. When we got to court their stories had changed so much," he said. "[They] did that because [they] were scared."
Bowie Co. DA James Elliott, who helped prosecute Banks, said that whether Cook and Farr have recanted is of no consequence. "No one [from the state] was there when they recanted," he said. Besides, said Elliott, the two teenage girls testified that Banks was with Whitehead earlier in the evening. "They both put [Banks] with him before he was killed," he said. Elliott says other evidence corroborates Banks' conviction -- pointing only to the testimony of Cook and Farr. He also said that finding the car was impossible in a city as large as Dallas, although Cook allegedly told prosecutors where the car had been dumped.
The testimony of Cook and Farr -- and prosecutors' alleged manipulation or misuse of that testimony -- are at the center of Banks' current appeal. Banks' attorney, George Kendall of the NAACP Legal Defense and Education Fund, said he expects the court will decide by mid-April whether to accept a review of the case. The court is also being asked to consider evidence that the Bowie Co. DA's office engaged in race-based jury selection. Earlier this year, the court granted a similar appeal by Thomas Miller-El, who argued that race-based jury selection tainted his Dallas Co. trial. But attorney Jim Marcus of the Texas Defender Service warns that the court rejects the vast majority of petitions for death penalty review. "It's rare for the court to step in and stay a case this late," he said. "This clearly means the court is interested in the case. It doesn't mean that they are going to take it."
Banks adds that he doesn't want to forget Richard Whitehead, although he doesn't want people to think he is "putting stars on my chest." "I don't want to cause no hard feelings to anybody," Banks said. "Let me put it this way: When I am in the courtroom and the jury is looking at me -- whether I cry or not, it's not going to help me. I don't want to say anything [about Whitehead] ... because it's going to be taken against me. I don't want to say anything to hurt anyone else. Or, like it says in the Bible, I don't want to be anyone's stumbling block."
Looking down at his chest, Banks removes the original TDCJ ID card he received when he first entered prison, 23 years ago. The card pictures him at 21, a much younger, thinner man with a long, angular face, looking grimly into the camera. "I'm glad I took care of this card," he said. He looks at it often, he says, although he's no longer sure he knows the boy it represents. "I don't really remember him," he says. "I look at him a lot, but I don't really remember him."
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