Naked City

Supremes Save Delma Banks?

Delma Banks is off death row.
Delma Banks is off death row. (Photo By Jordan Smith)

On Feb. 24, the U.S. Supreme Court threw out the death sentence of Texas inmate Delma Banks Jr. and remanded his case, granting him the right to further appeal his conviction. "Delma is, needless to say, happy and relieved," said Banks' attorney George Kendall. "He knows there's more to go, but that this is a very significant development."

Banks was convicted and sentenced to death for the 1980 murder of 16-year-old Richard Whitehead in a park near Texarkana – a crime Banks insists he did not commit. Banks' lawyers claim that Bowie Co. prosecutors lied to the court and withheld evidence favorable to Banks after they had promised the defense they had released all possibly exculpatory evidence – and the high court agreed in its sternly worded 7-2 decision (with justices Antonin Scalia and Clarence Thomas dissenting). "When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, it is ordinarily incumbent on the State to set the record straight," Justice Ruth Bader Ginsburg wrote for the majority.

During his two-day trial, Bowie Co. prosecutors claimed Banks shot Whitehead so that he could take the teenager's car and drive to Dallas. But hard evidence supporting that claim was not easy to come by, so prosecutors instead relied almost exclusively on the testimony of two witnesses, Charles Cook and Robert Farr – both of whom later recanted. Questions about the testimony of each witness has for 23 years formed the basis of Banks' appeals, and those questions lie at the heart of the high court's decision.

Cook testified that he met Banks in Dallas the weekend of the murder when Banks appeared in front of his house in Whitehead's car. Mere hours later, Cook said, Banks confessed he'd killed Whitehead, then asked Cook to dispose of the car and the murder weapon. Farr, meanwhile, claimed that Banks asked him to come with him to Dallas shortly after the murder so that Banks could get a gun to commit robberies.

Prosecutors did not tell the court that Farr was a paid informant, paid by a local sheriff's deputy to get a gun from Banks. When asked in court whether he was an informant, Farr said he was not, a lie that prosecutors did not correct. Further, the state failed to acknowledge or turn over evidence that prosecutors had coached Cook extensively regarding his testimony about the weekend of the murder. When asked in court whether he had rehearsed his testimony, Cook said no, another lie that prosecutors ignored.

It wasn't until the mid-Nineties that Banks' attorneys discovered evidence that prosecutors had withheld and then lied about evidence favorable to Banks. Still, both the Texas Court of Criminal Appeals and the U.S. 5th Circuit Court of Appeals denied Banks' right to further appeal on those claims, and ruled that Banks could not prove that prosecutorial misconduct affected the outcome of his trial – which was the same position that the state argued before the Supremes in December.

But that argument did not impress the high court justices: "Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed ... material when the prosecution represents that all such material has been disclosed," Ginsburg wrote. "A rule thus declaring 'prosecutor may hide, defendant must seek' is not tenable in a system constitutionally bound to accord defendants due process."

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Delma Banks, U.S. Supreme Court, death penalty, Ruth Bader Ginsburg, prosecutorial misconduct

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