High Court Agrees to Review Texas Death Penalty Case

The U.S. Supreme Court on Monday agreed to review the case of a death row inmate in Texas who asserts that an incompetent lawyer and unfair prosecutors kept him from getting a fair trial 23 years ago.

The high court said it would take up three claims raised by appellate lawyers for Delma Banks Jr. Those lawyers contend that prosecutors withheld information that might have benefited their client, that Banks’ first lawyer provided deficient representation at the trial’s penalty phase, and that a federal appeals court applied the wrong standard when it refused to consider one of Banks’ claims two years ago.

This year, three former federal judges, including William S. Sessions, who also served as FBI director, urged the high court to review the case, saying it would be “a miscarriage of justice” to permit Banks to be executed. The case directly “implicates the integrity of the death penalty in this country,” said Sessions, the other two former federal appeals judges and a former federal prosecutor in a friend-of-the-court brief submitted to the Supreme Court.

“The paramount importance of adequate counsel in capital cases cannot be overstated,” said Sessions, former Judges John J. Gibbons and Timothy K. Lewis of Philadelphia and former U.S. Atty. Thomas P. Sullivan of Chicago. “When a criminal defendant is forced to pay with his life for his lawyer’s errors, the effectiveness of the criminal justice system as a whole is undermined.”

Banks, 43, 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.

Banks had been with Whitehead for part of the last night Whitehead was seen alive. One witness said later that she had seen Banks driving Whitehead’s car in Dallas the following day.

The Supreme Court granted Banks a stay of execution March 12 moments before he was to be given a lethal injection. But that was not a guarantee the high court would grant full review to the case -- something it rarely does.

Now Banks, who has known 300 men who have been executed in Texas during his stay on death row, is assured of living at least several more months as his case is expected to be heard in early November.

“We are delighted at the news,” said George Kendall, a veteran death penalty lawyer for the NAACP Legal Defense Fund who has represented Banks for more than a decade. “Delma’s mother and father didn’t sleep all weekend” because of anxiety about whether the Supreme Court would take the case, Kendall said.

The news also was hailed by Amnesty International and the National Coalition to Abolish the Death Penalty.

Texas Atty. Gen. Greg Abbott issued a one-sentence statement, saying, “This is an important issue that is deserving of a decision by the nation’s highest court.” Whitehead’s family could not be reached for comment Monday.

This year, Larry Whitehead, the murder victim’s father, said he was positive Banks is guilty and expressed dismay about how long the case had dragged on.

Nearly three years ago, a federal district judge in Texarkana overturned Banks’ death sentence, citing shoddy legal work by his trial lawyer, Lynn Cooksey, and the prosecutors’ failure to disclose that one of their key witnesses had been paid to help the police in the case. That man and another key witness have since recanted their testimony against Banks.

Last year, however, the U.S. 5th Circuit Court of Appeals in New Orleans reinstated the death sentence. The appeals court acknowledged that Cooksey’s performance had been deficient but maintained Banks’ lawyers had not shown that their client had been harmed by Cooksey’s lackluster endeavors.

On Monday, the high court declined to review one issue that Banks’ appellate lawyers have argued for years -- that prosecutors improperly dismissed all four potential black jurors. Banks is African American. Whitehead was white and the jury was all-white.

The Supreme Court’s action came as the Texas Legislature is considering several bills aimed at reforming death penalty procedures in the state, which has conducted far more executions than any other state since the high court, in 1976, permitted states to reinstitute capital punishment. Texas has conducted 301 of the 846 executions since then, including 12 of the 26 carried out this year.