TEXARKANA — Delma Banks Jr. sat attentively in his yellow jumpsuit in the courtroom inside the Bi-State Justice Building on Monday as lawyers and experts debated how to make his second face-off with the death penalty a fairer fight than his first.
Thirty years after Banks was first sent to death row, his hair is gray and his face is rounder than when he first sat before a jury as a 21-year-old. Across the courtroom sat prosecutor James Elliott, his long-time antagonist, now white-haired after three decades of fighting to keep Banks on death row. At 52, Banks is facing the same Bowie County district's attorney office that sent him to death row in 1980 for the shooting death of 16-year-old Richard Whitehead. The same office that the U.S. Supreme Court ruled in 2004 committed misconduct when it tried Banks, suppressing evidence and intentionally hiding its mistakes. Banks’ sentence was overturned, and now he and Elliott, one of the original prosecutors, are once again in the same courtroom fighting for their own versions of justice.
A new trial to decide whether Banks should be executed for the 1980 murder is scheduled for October. At a pre-trial hearing on Monday, lawyers for Banks asked Judge Nathan E. White to consider a slew of motions that they argued are crucial to ensure that Banks gets a fair trial, including disqualifying Bowie County prosecutors from representing the state. They also asked the judge to remove the death penalty as an option in Banks’ case and to order a new trial to determine whether he committed the murder. White did not rule on the motions Monday, but the court heard arguments from the lawyers on both sides and from defense experts, setting the stage for the court battles to come.
Banks, who is black, was convicted of killing Whitehead, who was white, so he could steal his car. 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. Prosecutors relied heavily on the testimony of Robert Farr and Charles Cook, both admitted drug users; Cook also had convictions for robbery by assault and forgery.
Nearly 20 years after the murder, a federal court forced the district attorney’s office to open its files. Banks’ lawyers discovered that Farr was an informant, paid by the police in its investigation of Banks — a fact jurors were never told. The records also revealed that Cook’s testimony had been extensively coached and rehearsed and that prosecutors told Cook he would go to jail if he didn’t say what they wanted. The records made clear that both men had lied on the stand during the trial about their involvement with law enforcement. But Elliott had told the jurors that they should believe the two men.
In a strongly worded opinion by Justice Ruth Bader Ginsburg, the Supreme Court in 2004 ruled that without the perjured testimony of Cook and Farr the jury might have reached a different conclusion. Even after the ruling, Elliott contended that the death penalty was what Banks “deserved,” and he told reporters that he would not “throw in the towel.”
George Kendall, a New York-based attorney now representing Banks, told the court that Elliott’s comments to the news media, along with the original misconduct, should disqualify him and the entire Bowie County district attorney’s office from the Banks case. “Mr. Banks has been treated very shabbily,” he said. “The prosecution can be a vigorous advocate for the state’s case, but it can’t transcend and not comply with ethical standards and rules of law.”
In court Monday, Elliott refused to take the witness stand as requested by Banks’ lawyers. “I have no intention of testifying,” Elliott told the judge. “I don’t believe it’s proper.” Arguing against the motion, Elliott said that during the original trial he had not known that Farr was a paid informant or that Cook’s testimony had been coached. He said he “didn’t go hunting the press” to talk about Banks’ case but was defending himself against accusations he had prosecuted an innocent man. And finally, Elliott said, he should not be removed from the case because he promised Whitehead’s father he would see it through. “I intend to keep my promise to that dead boy’s father,” Elliott said. “I have lived with this case since its inception. I would respectfully ask the court let me see it through.”
Banks’ lawyers also asked the court to stop the state from seeking the death penalty because so much time has elapsed since the crime. Defense lawyers are required to present mitigating evidence during the punishment phase of a capital trial to help jurors decide whether the convicted person ought to get life or death. That evidence typically includes family, friends, acquaintances, teachers and others who can help the jury understand what the convicted person’s life was like and what might have led up to the crime at hand. Mitigation expert Danalynn Recer, founder of the Gulf Region Advocacy Center in Houston, told the court that finding people and records to tell the story of Banks’ pre-prison life would be nearly impossible given the passage of time.
“There’s very little that’s been left after all these years,” Recer said, explaining that 82 of Banks’ family members have died since he went to prison in 1980. More than 80 of his neighbors from the tiny town of Nash have died. Most of his teachers and principals are dead, and so are many of his classmates. “Those are the folks who are able to give the jury reasons to choose life,” she said.
But Elliott argued that even if all those people were alive, they might not testify favorably about Banks. Some of them, he said, could talk about Banks’ proclivity at the time to carry a pistol. “Isn’t the real point whether or not he has a firearm?” Elliott asked Recer.
Banks’ lawyers asked the court to also consider ordering a new trial to decide whether he is actually guilty of murder. The current case affects only Banks’ sentence, but defense attorney Carine Williams argued that the Bowie County prosecutors’ misconduct also affected the guilt-innocence phase of the original trial. Because the state withheld evidence, she said, Banks could not mount an effective defense. “There’s no way to walk away from looking at the circumstances of this case and conclude there was no effect,” Williams said.
But Elliott argued that even without the testimony of perjured witnesses, the case against Banks was strong. “The remainder of the — for lack of a better word — untainted evidence clearly shows Delma Banks responsible for the death of Richard Whitehead, and he is guilty of capital murder,” he said. “No question.”
Judge White made no ruling on the motions Monday, but he said the only issue he had questions about was the motion calling for a new guilt-innocence trial. He indicated he was not inclined to disqualify Elliott or the Bowie County district attorneys office from the case.
“Prosecutors represent their client, to wit the state of Texas, with the same zealousness as defense counsel represents their client,” White said.
Another hearing in the case is expected in June.