The war trumps all other
issues, so insufficient attention will be paid to the planned demise of Delma
Banks Jr., a 43-year-old man who is scheduled in about 48 hours to become the
300th person executed in Texas since the resumption of capital punishment in
Mr. Banks, a man with no
prior criminal record, is most likely innocent of the charge that put him on
death row. Fearing a tragic miscarriage of justice, three former federal judges
(including William Sessions, a former director of the F.B.I.) have urged the
U.S. Supreme Court to block Wednesday's execution.
So far, no one seems to be
"The prosecutors in
this case concealed important impeachment material from the defense," said
Mr. Sessions and the other former judges, John J. Gibbons and Timothy K. Lewis,
in an extraordinary friend-of-the court brief.
They said the questions
raised by the Banks case "directly implicate the integrity of the
administration of the death penalty in this country."
Most reasonable people
would be highly disturbed to have the execution of a possibly innocent man on
their conscience or their record. But this is Texas we're talking about, a state
that prefers to shoot first and ask no questions at all. Fairness and justice
have never found a comfortable niche in the Texas criminal justice system, and
the fact that the accused might be innocent is not considered sufficient reason
to call off his execution.
(One of the most
demoralizing developments of the past couple of years is the fact that George W.
Bush has been striving so hard to make all of the United States more like
Delma Banks was convicted
and sentenced to death for the murder of 16-year-old Richard Whitehead, who was
shot to death in 1980 in a town called Nash, not far from Texarkana. There was
little chance that this would have been a capital case if both the accused and
the victim had been of the same race. Or if the accused had been white and the
But Mr. Banks is black and
Mr. Whitehead was white, and that's the jackpot combination when it comes to the
death penalty. Blacks convicted of killing whites are the ones most likely to
end up in the execution chamber. In Texas this principle has been reinforced for
years by the ruthless exclusion of jurors who are black.
Just two weeks ago the
Supreme Court handed down a ruling that criticized courts in Texas for ignoring
evidence of racial bias in a death penalty case. Lawyers in the case noted that
up until the mid-1970's prosecutors in Dallas actually had a manual that said,
"Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority
race on a jury, no matter how rich or well-educated."
The significant evidence
against Mr. Banks was the testimony of two hard-core drug addicts. One was a
paid informant. The other was a career felon facing a long prison term who was
told that a pending arson charge would be dismissed if he performed
"well" while testifying against Mr. Banks.
deliberately suppressed information about its arrangements with these witnesses
— information that it was obliged by law to turn over to the defense.
And prosecutors made sure
that all the jurors at Mr. Banks's trial were white. That was routine. Lawyers
handling Mr. Banks's appeal have shown that from 1975 through 1980 prosecutors
in Bowie County, where Mr. Banks was tried, accepted more than 80 percent of
qualified white jurors in felony cases, while peremptorily removing more than 90
percent of qualified black jurors.
The strongest evidence
pointing to Mr. Banks's innocence was physical. He was in Dallas, more than
three hours away from Texarkana, when Mr. Whitehead was killed, according to the
best estimates of the time of death, based on the autopsy results.
Racial bias. Drug-addicted informants. "This is one-stop shopping for
what's wrong with the administration of the death penalty," said George
Kendall, a lawyer with the NAACP Legal Defense and Educational Fund who is
handling Mr. Banks's appeal.
If, despite all that is
known about this case, the authorities walk Mr. Banks into the execution chamber
on Wednesday, and strap him to a gurney, and inject the lethal poison into his
veins, we will be taking another Texas-sized step away from a reasonably fair
and just society, and back toward the state-sanctioned barbarism we should be
trying to flee.
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