Delma Banks Jr and Prosecutorial Misconduct

US Supreme Court overturned Delma Banks Jr's death sentence in 2004 based on prosecutorial misconduct. Now the same prosecutor is in charge of prosecuting the same case again after 30 years. Brandi Grissom of Texas Tribune reports:

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.”

Audio Interview with new Director of Office of Capital Writs - Brad Levenson

The Texas Tribune's Brandi Grissom has an audio interview with Brad Levenson, a deputy federal public defender in California, who will lead the first ever Texas Office of Capital Writs starting Sept. 1. His new job will require him to represent Texas death row inmates who claim their trials were botched and that they were wrongly convicted.

In one audio snippet, Levenson says he has a moral and ethical opposition to the death penalty and will work tirelessly to defend his clients on Texas death row.

Visit the Texas Tribune to hear the audio recordings.

From the Tribune:

Texas lawmakers created the office in 2009 after a series of investigative reports and studies of the criminal justice system revealed serious problems with the quality of legal representation for indigent defendants on death row. Some of the lawyers whom judges had appointed to represent capital defendants had no death row experience, some had mental illness, some had abandoned their death row clients, and some of the lawyers chosen by judges were dead.

So lawmakers created the Office of Capital Writs to provide better representation for people on death row who can't afford to pay their own lawyers to challenge their sentences. Levenson, who has extensive experience with post-conviction cases in California, has only tried one such case in Texas, which has the busiest death row in the nation. And even before he's opened his office, he must deal with a 5 percent budget cut. He'll have to hire about 10 staffers and work about a dozen cases a year with $991,000, down from what was supposed to be a $1 million budget. But Levenson said he's up for the challenge.

Levenson said Texas wasn't even on his radar screen until 2008, when his office was asked to represent Texas death row inmate Clinton Lee Young. He was convicted of murdering two Texas men in 2001, and a Midland jury sentenced him to death. But Young and his lawyers claim the prosecution withheld evidence at trial that could have helped him, and last year the Texas Court of Criminal Appeals sent his case back to the trial court. Working on that case — and traveling in the Lone Star State — piqued Levenson's interest.

Cesar Fierro - an Innocent Man Still On Texas Death Row "gone stark raving mad."Cesar Fierro - an Innocent Man Still On Texas Death Row "gone stark raving mad."Innocent

The Texas Tribune has a database of Texas prisons and prisoners that includes a list of people on Texas death row and where they are housed. 12 death row prisoners are listed as being housed in the Jester IV Psychiatric Unit. One of the 12 is Cesar Fierro, who is one of the people on Texas death row who is mostly likely innocent of the crime for which he has been sentenced to death. Compounding the tragedy of his having been sentenced to death despite his innocence is that being on death row for 30 years has had a devastating impact on his mental health.

Read more about Cesar Fierro on this website: http://www.cesarfierro.info/summary.htm

The following is excerpted from: http://www.ushrnetwork.org/files/ushrn/images/linkfiles/NACDL_Statement_to_Committee_3-13-06[2].pdf:

C. The Effects of Lengthy Incarceration and Inhumane Conditions on Death Row Inmates: A Case Study

Prolonged incarceration on death row, particularly under the conditions described above,23 has devastating psychological effects on condemned prisoners – particularly those who are mentally ill. Indeed, the torturous effects of "death row phenomenon" -- that is, the psychological impact of a lengthy stay on death row -- have been widely noted by jurists and scholars over the last three decades.24

It is both necessary and appropriate for nations to provide adequate procedural safeguards to ensure condemned inmates receive full and fair appellate review of their convictions and sentences. Nonetheless, prolonged incarceration on death row amid unendurable conditions of confinement gives rise to violations of Articles 7 and 10 of the ICCPR.25 The case of César Roberto Fierro Reyna, a Mexican national on Texas’ death row, provides a particularly disturbing example of the destructive psychological effects of extended solitary confinement on death row.26

César Roberto has been under a sentence of death since February 27, 1980. 27 He has been scheduled for execution on fourteen separate occasions, coming within days of execution before receiving court-ordered stays on six different occasions. According to the prison’s classification records, Mr. Fierro contacted the prison's psychiatric department for the first time on May 15, 1986, stating that he was hearing voices and he might injure himself.

As the years passed, Mr. Fierro’s mental condition continued to deteriorate. On December 28, 1999, Mr. Fierro learned that his mother had died four days earlier. In a grievance submitted to the prison on January 25, 2000, he wrote that he made an appointment with the psychiatrist because he "went down emotionally and was feeling real bad[.]" The prison sent a psychiatrist or a psychologist to his cell, but Mr. Fierro requested a private consultation. He was told that only outwardly psychotic prisoners are allowed private psychiatric consultations, and hence his request was refused. In the grievance, Mr. Fierro wrote:

I don't look sick and I can do things as you can see by this grievance, but I hear the voices at the same time and I can do things I don't want to do and that's what I would like to avoid completely.

He reiterated his request for a private meeting with a psychiatrist, and asked that the psychiatrist "get my old medication back or whatever he deems appropriate." Id. The prison responded that its records indicated that Mr. Fierro had been seen by the unit psychiatrist, and that the psychiatrist had found no indication that Mr. Fierro was in need of further treatment.

Mr. Fierro’s attorneys as well as reporters have observed a marked deterioration in Mr. Fierro’s mental health over the years of his incarceration on death row. Until March 1999, he was able to communicate with his attorneys in a regular and fairly rational manner. From that point forward, however, Mr. Fierro’s letters to his attorneys became increasingly bizarre and irrational. He lost a great deal of weight. He became convinced that his attorneys were conspiring against him.
One of the hundreds of irrational letters he sent to his attorneys included the following message:

NO ACCESS TO GRIEVANCES. STOLEN PENS AND STAMPS. LIMITED ACCESS TO SAME INK AND STAMPS. NO TYLENOLS. NO FLOSS. SCARED OF DENTIST BECAUSE A DRILLED HOLE OR SOMETHING AND CAVITIES. NO MEDICAL. INCOMPETENT EMPLOYEES. FORGOT, GUM/TOOTH BLEEDS. NO FAIR HEARINGS, CONFISCATION OF DOCUMENTS AND ORCHASTRATED [sic} CASES. NO RULES. NO MAIL. PSYCHOLOGICAL SUICIDE BY HYPNOSIS OR OTHER INSINUATED. ALSO THE ATTEMPT TO CONFUSE AND MANIPULATE, ALSO CUTS, GASSING AND BEATING SO FAR IN THIS RUN.

What is particularly tragic about Mr. Fierro’s case is that he may actually be innocent of the crime for which he was convicted. Numerous media reports have described the miscarriage of justice that led to his conviction.28 Although a Texas court has found that his confession was coerced by the El Paso police,29 and his former prosecutor has urged the courts to grant him a new trial, he remains on death row. As of February 27, 2006, he has spent twenty-six years awaiting his execution for a crime he may not have committed.

And here is an excerpt from a 2005 article from Texas Lawyer about the Fierro case:

David Dow says he had heard rumors from other condemned clients that Fierro had "gone stark raving mad." During Fierro's decades on death row, his mother had died, his brother had died, his wife had divorced him and his daughter had stopped visiting him. Gradually, he refused to speak with his lawyers, returning unopened letters from Dow, as well Richard Burr and Jean Terranova, who also represented Fierro in his
habeas proceedings.

"He wouldn't come out of his cell for months at a time unless he was
forcibly extracted," says Dow, a constitutional law professor at the
University of Houston Law Center and director of its Texas Innocence
Network. "He refused to shower and there were feces on his cell wall. It was
very disturbing, but I really needed to see him."

When Dow finally visited Fierro in late 2004, Dow grew shocked at his
client's transformation. When Fierro was sent to death row in 1980, Dow says
he was a soft-spoken, slightly overweight man in his mid-20s who was highly
respectful of his lawyers and the process, which he felt would set him free.
"When I saw him last year, he had long, stringy hair and a strong wind could
have blown him over," says Dow who has recently written "Executed on a
Technicality," a book about his death-penalty practice that includes a
chapter on Fierro. "[Fierro] told me he was on a hunger strike but then
asked for food.

and

Dow says he is always hopeful about his clients' chances for success, but seldom optimistic; the facts, the law, the percentages are just too stacked against them. But in 1991, after he was first appointed to represent Fierro
on his second federal writ of habeas corpus, he felt Fierro would be his
first death-penalty client to be exonerated.

Dow raised numerous constitutional objections in his unsuccessful writ, but
the issue that has always driven the habeas litigation was the defensive
theory that Fierro's confession had been coerced, Dow says. What had yet to
be proved was a key fact about the coercion: that the El Paso police knew
that the Juarez police were wrongfully holding Fierro's parents in custody
and then exploited that fact to force him to confess.

The facts that are known are as follows: On Feb. 27, 1979, border patrol
agents discovered the body of Nicholas Castanon, a taxicab driver who had
been shot in the back of the head and dumped in an El Paso park. Sometime
after the shooting, eyewitnesses identified two men exiting the taxi in
Juarez * one a driver, the other the passenger. Based partly on these
identifications, two suspects, neither of whom were Fierro, were arrested
for capital murder, but the El Paso District Attorney's Office refused to
indict them.

The case turned cold until five months later when 16-year-old Gerardo Olague
presented himself to the El Paso police and implicated Fierro in the
homicide. In his July 31, 1979, statement to police, Olague said Fierro had
joined him when Olague hailed a cab to drive him home. During the ride,
Fiero surprised Olague when Fierro suddenly shot the cab driver in the neck.
After dumping the body in a park, Fierro shot the cabbie again. Olague said
he remained with Fierro over the next few weeks, traveling into the interior
of Mexico with him and back to Juarez and El Paso because he was fearful
Fierro might kill him. In a pang of conscience, he finally came forward and
decided to tell the police what he knew.

None of the original eyewitnesses identified Fierro as either of the men who
exited the cab, and the police recovered no physical evidence to connect
Fierro to the crime. Instead, the police hoped to secure a confession from
Fierro. But first they had to find him.

According to the testimony of El Paso police Detective Al Medrano, Olague
led Medrano and a Juarez municipal police commander named Jorge Palacios to
a house in Juarez to point out where Fierro lived with his parents. No one,
however, knocked on the door to see if Fierro was home.

On the following day, Aug. 1, Medrano received a 5 a.m. phone call from
Palacios who invited Medrano to meet him for breakfast in Juarez so Palacios
could disclose the information he had learned about Fierro's whereabouts.
Medrano testified that it was only during this breakfast meeting that
Palacios revealed he had interviewed Fierro's mother at her home and she
admitted that her son was already incarcerated in the El Paso County Jail.

Shortly after the Juarez breakfast, Medrano retrieved Fierro, who was being
held for a probation violation, and began his interrogation. Medrano
testified he did not know whether Fierro's parents were in Juarez police
custody; he only knew they had been contacted by the Juarez police * and
told Fierro as much during the interrogation. Nonetheless, Fierro grew
anxious about his mother, and said he would only confess if he knew his
parents were all right. To ease his fear, Medrano said he phoned Palacios,
who spoke with Fierro. After their conversation, which Medrano said he
didn't hear, Fierro confessed to the murder.

In Fierro's Defense

The defense offered a different version of the facts, which it developed
during its pre-trial motion to suppress the confession.

Fierro's mother testified that she and her husband were arrested after the
Juarez police seized two letters from her home, one of which was written by
Fierro from the El Paso County jail. Fierro's stepfather testified that the
Juarez police threatened to torture him while in custody, placing an
electric cattle prod near his genitals. His mother further testified she and
her husband were released only after they were told her son had confessed.

Cesar then testified that Medrano had shown him the two letters (which the
defense suggested Palacios had given Medrano during their breakfast meeting)
to convince him that his parents were in Juarez police custody. Fearful of
his parents' incarceration and possible torture, Fierro says he only
confessed so they would be released.

Despite defense arguments that both police departments colluded to coerce
Fierro's false confession, the trial court refused to suppress the
confession, which became a pivotal piece of evidence at trial. Prosecutors
used it to corroborate the other thread of evidence tying Fierro into the
murder: the testimony of Olague, which the defense argued was riddled with
contradictions and revealed Olague to be more than an unwitting witness to
murder.

At trial, Olague admitted. that in the hours before the murder, he committed
his first-ever burglary, breaking into a car and stealing a CB radio, which
he said he and Fierro later pawned. Oddly, he identified one of the jurors
as the pawnbroker, which she wasn't. In his police statement, Olague claimed
he had only known Fierro for two weeks prior to the murder; at trial,
however, he testified that Fierro and his brother had forced him to commit
around 10 burglaries during the several months prior to the CB radio theft.
Asked how many burglaries he had committed, he estimated around 40, though
he testified he had only been arrested for one of them. To explain away a
discrepancy between his police statement and his trial testimony, Olague
admitted he had "psychological problems."

Prosecutor Weiser recognized that the state's case raised the issue of
whether or not Olague was an accomplice to murder. Weiser asked the judge to
instruct the jury that Texas law required the independent corroboration of
an accomplice's testimony to support a conviction. To do otherwise, he said,
"would be committing reversible error." The judge gave the instruction.
In his closing arguments, Weiser urged the jury to focus on the confession,
which he contended was voluntary because the El Paso police were not
complicit in whatever actions the Juarez police might have taken. He argued
that even if the jury didn't believe Olague's testimony, it would still have
to convict Fierro based on his own words. On Feb. 12, 1980, the jury, after
reviewing the confession during its deliberations, found Fierro guilty of
capital murder and later sentenced him to death.

It took another 14 years for Dow and his defense team to uncover proof that
Fierro's conviction may have rested on a lie.

Cesar Fierro is still on Texas Death Row.