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Prominent Allies Attempting to Stop Texas Man's Execution

But time is running short for former FBI chief, others working to save Delma Banks Jr.

March 09, 2003|Henry Weinstein | Times Staff Writer

Delma Banks Jr., who has spent 22 years on death row, is scheduled to die Wednesday, becoming the 300th person executed in Texas since the state resumed capital punishment 20 years ago.

Like the men executed earlier in the Lone Star State -- all of whom Banks met in prison -- he has mounted last-ditch appeals at the Texas Court of Criminal Appeals and the U.S. Supreme Court. It is rare for either court to grant an eleventh-hour stay of execution.

But Banks' prospects seem stronger than many of his predecessors because an unusual alliance has formed on his behalf. Former FBI Director William S. Sessions, two former federal appellate judges from Philadelphia and a former U.S. attorney from Chicago have filed a friend-of-the-court brief urging the Supreme Court to halt the execution and grant further review to Banks' case. They say that it would be "a miscarriage of justice" to permit the 43-year-old African American man to be executed.

Banks always has maintained his innocence in the murder of Richard Wayne Whitehead, a 16-year-old high school student whose body was found in a park on the outskirts of Texarkana on April 14, 1980. He had been shot twice in the head.

No physical evidence links him to the crime, though Banks, then 21, admits he and Whitehead shared some beers on the night of April 12, the last time the youth was seen alive. They had once worked together at a restaurant. Witnesses who saw them together that night said there was no sign of hostility.

The Sessions brief asserts that Banks' case exemplifies two primary problems in many capital cases in the U.S. -- concealment of potentially exculpatory evidence to the defendant that prosecutors are obliged to divulge under the 1963 Supreme Court decision Brady vs. Maryland, and egregiously poor work by the defendant's trial lawyer.

The pending execution comes when there is growing controversy over how the death penalty is administered in this country. In January, Illinois' outgoing Republican governor, George Ryan, commuted the sentences of all 167 inmates on death row there, saying the system was fatally flawed. Legislation to reform death penalty procedures has been introduced in the U.S. Senate and numerous states. Last week, a special committee appointed by the Supreme Court of Pennsylvania called for a moratorium on executions there, saying that death sentences are imposed disproportionately on minorities.

While the pace of executions has slowed around the country in recent years, it remains high in Texas, which has accounted for more than one-third of all executions in the U.S. since 1976, when the Supreme Court permitted states to resume capital punishment. Nine of the nation's 14 executions this year were carried out in the Huntsville, Texas, death chamber and 11 more are scheduled through early July.

Studies done in Texas have shown that capital cases there have been flawed by shoddy defense lawyering, questionable evidence and an appeals court that has a highly constricted view of its role. The Austin American-Statesman, in a recent editorial, urged abolition of the Texas Court of Criminal Appeals, branding it "incompetent" to reliably fulfill its responsibility to review lower court verdicts.

The friend-of-the-court brief submitted by Sessions and the other three men plays on this template. "The significance of this case extends well beyond the interests of those who are personally involved in it.... Because the constitutional issues raised in Mr. Banks' petition call into question the reliability of the guilty verdict and the death sentence in his case, and because similar flaws infect the reliability of death sentences around the country, thus substantially undermining public confidence in our capital punishment system, this Court should grant review," states the brief written by Washington lawyers Peter Buscemi and Brooke Clagett.

Nearly three years ago, Sessions agreed to join a bipartisan death penalty initiative started by the Washington, D.C.-based Constitution Project, which maintains that the prospect of wrongful convictions and executions had become too great.

"My whole background has been in law enforcement for years ... but if you are going to put someone to death, you need to do it correctly," said Sessions, who was once the U.S. attorney in El Paso and later a federal judge there before President Reagan appointed him to run the FBI.

After reading material given to him about this case, Sessions said he decided to sign the brief, because he was disturbed about the representation that Banks received at trial and because prosecutors had failed to turn over evidence that could have aided Banks.

Also signing the brief for the same reasons were attorney John J. Gibbons of Newark, N.J. , who served 20 years on the U.S. 3rd Circuit Court of Appeals in Philadelphia after being appointed by President Nixon; Chicago lawyer Thomas P. Sullivan, formerly the U.S. attorney there; and Pittsburgh attorney Timothy K. Lewis, also a former 3rd Circuit judge.

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