For the second time in three decades, a Texas court is preparing to decide whether Delma Banks Jr. should be executed for the 1980 shooting death of 16- year-old Richard Whitehead.
The U.S. Supreme Court overturned Banks’ death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. “It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Banks’ appellate lawyers.
Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Banks until he “gets what he deserves.”
At a hearing Monday in a Bowie County state district court, Banks’ lawyers will ask Judge Nathan E. White to disqualify Elliott and the local district attorney’s office from the case and to assign different lawyers to represent the state. “Mr. Elliott’s misbehavior proves that he cannot serve as a disinterested prosecutor and is laboring under a conflict of interest that will prevent Mr. Banks from receiving a fair trial,” lawyers wrote in court documents.
Banks, who is black and was 21 when the crime was committed, was convicted of killing Whitehead, who was white, so he could take off with his car. The police found Whitehead’s body in a park near Texarkana and soon discovered that Banks had been with him on the last night he was seen alive. There were no witnesses to the killing and no physical evidence linking Banks to it. The prosecution’s case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Cook also had convictions for robbery by assault and forgery.
Cook told the jury that he met Banks in Dallas the morning after the murder. He said Banks had blood on his pants and told him he decided to “kill the white boy for the hell of it and take his car and come to Dallas.”
Farr testified that he, Banks and another man drove to Dallas on the day that Banks was arrested so that Banks could retrieve a gun to use in armed robberies. Farr said Banks told him he would “take care of it” if any trouble arose.
Banks had no criminal history, and people who were with him and Whitehead on the last night that Whitehead was alive testified there was no ill will between the two. Nonetheless, an all-white Bowie County jury convicted Banks, who was sentenced to death.
In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Banks’ lawyers discovered a transcript showing that Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.
Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said, persuading him to drive to Dallas to get a gun. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Cook denied on the stand that anyone had helped him with his testimony, and Farr said he had not been paid for his help in the case. During closing arguments, Elliott told jurors that they should believe the two witnesses.
In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help. But they said Banks’ lawyers were at fault for not uncovering the information sooner.
The Supreme Court ruled that without the testimony of the two witnesses, Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.
Elliott, the prosecutor, declined to comment last week about the case. “We’re in litigation,” he said. “The newspaper is the wrong place to be trying cases — it just is. So I can’t give any comment.” He also declined to provide copies of his responses to the defense motion to disqualify him, and the Bowie County district clerk’s office said the responses had not been received.
Elliott did respond to newspapers in 2004, when the Supreme Court overturned the Banks sentence. He told reporters he was convinced that Banks was guilty. “I have not read the opinion, but it doesn’t matter,” he said in an interview with The Chicago Tribune. “We are going to pursue this case until Delma Banks gets what he deserves.”
At Monday’s resentencing hearing for Banks — one of death row’s longest-serving residents — his lawyers will argue that after more than two decades of misconduct, the Bowie County district attorney’s office should be precluded from participation.
Elliott’s remarks in the news media show that he cannot approach the case objectively, they argued in court documents. “The prosecution’s serial misconduct that has tainted these proceedings establishes that Mr. Banks cannot receive a fair trial if again prosecuted by the Bowie County district attorney’s office,” they wrote.
Banks’ lawyers are also asking the court to throw out the guilty verdict and order a new trial. They contend that the perjured testimony of Cook and Farr and the prosecutors’ withholding of facts also affected their client's ability to defend himself. “Because of the state’s purposeful suppression and misconduct, Mr. Banks was surely denied the full defense available to him,” his lawyers argue in court pleadings.
Owen, of the Capital Punishment Center, said police and prosecutorial errors raised serious questions about whether Banks had actually committed the murder. “In a case where the evidence of guilt is so very thin, and the misconduct by the prosecution is so far-reaching and well-documented,” he said, “there’s no reason for any court to have any confidence the conviction is solid.”