The Supreme Court has granted a last-minute indefinite stay to Delma Banks, just minutes before his scheduled execution tonight, which would have been Texas' 300th execution since 1976 when the death penalty was reinstated.

Jim Marcus, a lawyer with the Texas Defender Service, a nonprofit law firm that represents indigent defendants, said Banks' case is typical of the problems with death penalty appeals. Finding additional evidence in a case is only part of the challenge; the bulk of an appellate lawyer's time is spent trying to persuade a court to look at it, Marcus said.

"You spend 80 percent of your time asking, `Can we please get to the merits?' " Marcus said.

The Board of Pardons ands did not consider Banks' clemency petition because his attorneys filed it Feb. 24, two weeks before the execution date but a week past the deadline.

The Court's order indicated the justices were undecided about the case and wanted time to consider whether to take it on.

Gallup has conducted a new poll on Americans' attitudes toward the death penalty. The results are mostly discouraging. 70% of Americans favor the death penalty. However, the number drops to 52% when life imprisonment without is an option.

Gallup Poll Results
May, 2001 numbers (left) compared with May, 2002 numbers (right.)

Craig Hines details the errors and malfeasance i n Delma Banks, Jr.'s trial in the Houston Chronicle, adding these comments:

It will be a minor historical moment in Texas' bumptious, assembly-line approach to capital punishment, as Banks will be the 300th Texas inmate to die at the hands of the state since executions resumed in 1982. But it will be a major step in the state's determined effort to ignore or wish away monumental problems with capital punishment (not to mention the institutional moral depravity involved), as the Banks case is a primer in prosecutorial misconduct and procedural nightmares.

The Houston Chronicle writes in its editorial today:

"It is dangerous to be right when the government is wrong," wrote Voltaire.

Unless the U.S. Supreme Court acts at the last minute, Texas today will execute its 300th convict since the state resumed capital punishment in 1982. The problem, in the case of Delma Banks, sentenced to die for the 1980 murder of 16-year-old Richard Wayne Whitehead in Bowie County near Texarkana, is that the government could very well be wrong.

Allegations of prosecutorial misconduct, racial bias and withheld scientific evidence raise serious questions about whether Banks was wrongfully convicted.

In many ways the case is a microcosm for what's wrong with the way the capital punishment system is set up in Texas. Flaws in the system have caused respected groups like the League of Women Voters to join calls for a moratorium on capital punishment until these issues can be resolved.

The Dallas Morning News calls on Texas to implement a moratorium on the death penalty:

Texas, which executes more people than all the states and even most countries, should pause. New evidence of a flawed system and cautions expressed recently by some of those closest to the process make a good case for a moratorium on executions until Texas carefully reviews its death penalty process to assure that it is just.

The editorial also lists people and agencies to contact to make your voice heard. It's time for Texans to speak out--loudly. If Delma Banks, Jr. is killed tonight, there should be a loud and sustained protest--and call to action.

Advocacy for or against the death penalty isn't the point. Time out to fix a broken system is. It's in the interests of all Texans to support such action.Make your voice heard. Tell elected officials to establish an independent commission to review the Texas death penalty, and recommend the Board of Pardons ands suspend executions until the review is completed.

Senate State Affairs Committee Chairman Bill Ratliff (R-Mount Pleasant): 512-463-0101; fax: 512-475-3751; Box 12068, Austin, Texas 78711.

House State Affairs Committee Chairman Ken Marchant (R-Coppell): 512-463-0468; e-mail: ken.marchant@house.state.tx.us; Box 2910, Austin, Texas 78768.

Find a full list of state officials representing the North Texas area by linking to the Voter's Post Office at the bottom of the Opinion page on Dallasnews.com.

Update: The Austin American Statesman Editorial: Hope for a fair trial lies with Supreme Court

San Antonio Express News Editorial: Stop the 300th Execution

The Texas Board of Pardons ands has refused to stop its two scheduled texecutions this week, inlcuding that of Delma Banks, who is likely innocent and who has the support of former FBi Director General William Sessions, former US Court of Appeals Judges Timothy Lewis and John Gibbons (3rd Circuit) and former US Attorney for Chicago and co-chair of the Illinois Governor's Commission on Capital Punishment Thomas Sullivan, who have filed an amicus brief in the Supreme Court asking it to review Banks's case. The brief, which focuses on critical questions regarding prosecutorial suppression of evidence and ineffective assistance of counsel at Banks' trial, can be read here [PDF].

In Banks's case, the Board said his current lawyers filed his petition 7 days late and therefore it wouldn't even consider it. So because his new lawyers were a week late, the Board won't review whether he is innocent--or whether he was denied effective assistance of counsel at this trial (how ironic) or whether there was prosecutorial misconduct.

The National Coalition Against the Death Penalty says,

The conviction and death-sentencing of Delma Banks Jr. by the state of Texas violates three U.S. Supreme Court rulings and constitutes the most severe form of constitutional error and gross injustice, the National Coalition to Abolish the Death Penalty said today. On Monday, the Texas Court of Criminal Appeals denied Banks' appeal on a six to three vote.
Banks was convicted and sentenced to death in connection with the murder of Richard Whitehead of Texarkana after prosecutors struck all black prospective jurors from the jury pool and withheld critical exculpatory evidence from the defense.

"It is most unusual for a conviction and death sentence to stand when it violates not one, not two but three U.S. Supreme Court rulings," said Steven W. Hawkins, NCADP executive director. "But that is precisely what has happened in Delma's case. His conviction violates the high court's decisions in Batson, Brady and Strickland."

The Brady ruling requires prosecutors to reveal potentially exculpatory evidence. In Banks' case, prosecutors knowingly allowed key witnesses to perjure themselves at trial, withheld evidence from the jury that would have discredited key witnesses and then argued to the jury that it should believe witnesses they knew were lying.

The Batson ruling bans prosecutors from striking prospective jurors on the basis of race. In Banks' case, prosecutors excluded all African American jurors from the jury pool and he was convicted and death-sentenced by an all-white jury. Banks is African American.

The Strickland ruling addresses the issue of competency of legal counsel. A federal judge characterized the performance of Banks' trial attorney as "dismal" and reversed his sentence. That decision itself was reversed by the Fifth Circuit Court of Appeals, which has a track record of not seriously considering the claims of people on death row.

Hawkins said if courts fail to intervene to prevent Banks' execution, Gov Rick Perry and the Texas Board of Pardons ands must do so. "This case represents an unusual convergence," Hawkins said. "It is a convergence of everything that is wrong with the death penalty. When prosecutors misbehave and when defense counsel is incompetent, the reward should not be an execution by the state."

Well, we now know the Texas Board of Pardons ands won't intervene. Mr. Banks execution is set for Weds.

Bob Herbert writes about Delma Banks, a likely innocent man about to be texecuted in Countdown to Execution No. 300

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 1982.

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 listening.
"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.

We need to make time for Mr. Banks. As Herbert concludes,

Prosecutorial misconduct. 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.

From Alberta Phillips' Austin Statesman column, Seek the truth, and let it set a wronged man free:

When Ellean Banks heard the news that a federal judge overturned her son's death sentence, she danced and shouted in her home in Nash, near Texarkana. The family prayed and wept. Laughed and made plans for a home-coming for Delma Banks Jr. that seemed just around the corner. That was in 2000.

Now, Mrs. Banks, 67, is preparing for her son's execution in three days.

After nearly 23 years, she still doesn't fully comprehend how things got this far. How her son could end up on death row based on dubious testimony. There was no physical evidence — no DNA, no fingerprints, no blood and no murder weapon. Delma Banks didn't confess. In fact, he turned down a plea that would have made him eligible for 15 years ago. When a judge urged him to bargain with prosecutors, he told them he couldn't plead guilty to a crime he didn't commit. Mrs. Banks said a lawyer urged her to create an alibi for Delma, but that meant violating her Pentecostal beliefs.

What makes Delma Banks case most unusual is those who are supporting halting his execution:

Facts in the case, especially evidence uncovered by Delma Banks' appeals lawyers, are so disturbing that U.S. District Judge David Folsom overturned the death sentence in 2000. The behavior of police and prosecutors was so unconscionable, it prompted former FBI director and U.S. District Judge William Sessions (of San Antonio) to file a friend of the court brief with the U.S. Supreme Court requesting it halt Banks' execution. "The prosecutors in this case concealed important impeachment material from the defense," Sessions said in the brief, joined by two other former federal judges and a former federal prosecutor. All are staunch death penalty supporters, but even they could not stomach the apparent misconduct by police and prosecutors.

This will be the 300th Texecution since 1976. Here's more on Delma Banks and his likely innocence.

[comments now closed]

No Death-Penalty Doubts at Justice :

Although Ashcroft says it's a top priority to prevent innocent people from being sentenced to death, he has not pushed initiatives to upgrade the quality of defense lawyers in state capital-murder cases or increase death-row inmates' access to DNA testing. Both steps are crucial to eliminate tragic errors in death-penalty prosecutions, according to a broad coalition of reform-minded activists.....

Asked if Ashcroft believes death-penalty administration is deeply flawed, as the activists submit, Justice Department spokesman Mark Corallo says, "I think we would argue that the system is overwhelmingly fair."

....The attorney general has displayed no more enthusiasm in advocating legislation to reduce the risk of innocent people being convicted in capital cases. No less a dyed-in-the-wool conservative than Supreme Court Justice Sandra Day O'Connor devoted a speech to the subject in July 2001. O'Connor, whom President Reagan had appointed and whose support of the death penalty dates back to her days as an Arizona legislator, said, "Serious questions are being raised about whether the death penalty is being fairly administered in this country." She went on to decry the lack of minimum standards for appointed counsel in death-penalty cases and the unavailability of post-conviction DNA testing . [Via Hamster]

More on the same theme from Cindi Ross Scoppe over at the South Carolina State:

IN MISSOURI, a prosecutor went before the state Supreme Court and told justices they should not allow a death-row inmate a new trial "even if," as one of the justices put it, "we find Mr. Amrine is actually innocent."

In federal court in the same state, the state convinced judges that despite "a nagging suspicion that the wrong man may have been convicted," the death-row inmate was entitled to "no relief, even as the facts suggest that he may well be innocent."

In Alabama, prosecutors objecting to a hearing on new evidence in a death-row case said: "If the State of Alabama has to spend even one additional day in Birmingham, Alabama, defending the state, the state will be unduly injured in the form of additional per diem expenses, transportation expenses and loss of two assistant attorney generals for a complete work day."

By taking such hard-and-fast positions, prosecutors are doing more than opponents ever could to undermine public confidence in the death penalty.

But how certain can I be about justice when our prosecutors fight to make sure no jury ever hears new evidence that calls into serious question the condemned's guilt? How certain can I be about justice when our laws and procedures prevent courts from reopening such cases?

These are not just hypothetical questions, and not just questions in a few states where prosecutors say outrageous things. As The New York Times noted in putting together these examples, such arguments are becoming more frequent, as death penalty opponents become more aggressive in trumpeting innocence claims.

DNA has exonerated 123 people in the last decade, according to Cardozo Law School's Innocence Project. Twenty-Five of them are from Florida. No matter--DNA testing may be coming to an end in Florida this fall when

a two-year statute of limitations runs out on raising DNA challenges to Death Row convictions. Florida lawmakers created the two-year window of opportunity in 2001 after the exoneration of Frank Lee Smith, a Broward man who died of cancer while appealing his death sentence.

There should be no time limit on justice, critics say. 'If we later find out that we executed an innocent person, we can't dig up their grave and say `Whoops! Sorry, we made a mistake,' '' said former Florida Supreme Court Justice Gerald Kogan. Kogan was one of six legal experts participating in a discussion on wrongful convictions Thursday at the University of Miami Law School. Others on the panel included former U.S. Attorney General Janet Reno, Miami-Dade County Public Defender Bennett Brummer, attorney Bill Laswell with the Broward Capital Crimes group, Death Row attorney Martin McClain and Catherine Arcabascio, a professor at Nova Southeastern University's Innocence Project.

In the last two years, the Florida Innocence Project at Nova Southeastern Law School has received more than 600 cases of prisoners claiming innocence. Project members have identified 150 of those as DNA cases. But, they say, there's not enough time to review cases before the fall deadline.

One more time, there should be no time limit on justice.

"A former Illinois death-row inmate spoke out against capital punishment in Rome on Friday as part of a campaign to push for a United Nations moratorium against the death penalty.

The Italian anti-death penalty group, Hands Off Cain, invited Leroy Orange and his lawyer to hold a news conference in Italy to draw attention to their cause. The group wants Italy to push for a U.N. resolution against capital punishment when it takes over the European Union rotating presidency this summer."

From Rev. George:

Many of us took the time to contact legislators for their vote in favor of HB 213. We especially targeted 3 legislators. I really urge everyone to WRITE or FAX those same 3 legislators ( contact all of them plus the sponsor Art Turner but especially these three). I think phone calls may not be appreciated and tie up their lines and take office time. They took the time so maybe so can we. These three ALL demonstrated GREAT courage.

Following the information on the three, I will explain the powerful experience and significance of each. They are:

Rep. Richard Bradley
3520 North Pulaski, Chicago, IL 60641
FAX: 773--794-9450

Rep. Eileen Lyons
1030 S. LaGrange Rd., LaGrange, IL 60525
FAX 708--352-7702

Rep. Mary Kay O'Brien
760 E. Division, Coal City, IL 60416
FAX 815-634-3137

1) BRADLEY: We were never sure how he was going to vote and he was vague just before testimony began. He was called and explained his vote prior to his vote. His brother was killed by a hit and run driver. Before his brother died in the hospital, a friend from his brother's past suddenly showed up. The family was deeply touched. Bradley explained the pain and anger he had--and still has--against the driver. He feels he can't forgive. Because of that experience, he can identify with murder victims and understands their desire for revenge. At his point the tears were coming down Bradleys cheeks. Bradly then explained that the family ( his mother) felt the old friend was "an angel". This was a strong spiritual experience for him, as he explained. Bradly then said something like " since my brother had an angel while he was dying and our family had an angel, then I have to be that angel and vote YES on HB 213.

2)LYONS-- a Catholic Republican. Some of us had REALLY pressured Eileen. She agonized about it. She is pro-life. She beleives in the Catholic "consistent ethic of life" but she maintains her consistuency, even though pro-life, is pro-death penalty, as is her Illinois Republican party. Eileens husband is PRO death penalty. As the hearing proceeded, Eileen was somber, maybe sad.
In explaining her vote she simply said " I am Catholic and beleive in the Catholic pro-life position and believe life is precious from conception to natural death. Therefore, I vote in favor of HB 213".. the tears came. I think she has tears coming down her face for at least 10 minutes. She was the ONLY Republican to vote for HB 213. A very courageous vote.

3)O'Brien: the chair of the committee, a Democrat but for awhile had indicated a reluctance to vote for HB 213. Her district is in favor of the DP. As chairperson, her vote was important. As the FIRST to vote, her YES vote set a tone. She also derserves ALOT of thanks.

So, please take time to thank at least these three, especially those who had contacted them for their vote. please forward this request to those you requested to contact for votes.
Thanks and Peace,
George W.

Rev.Mr.George W. Brooks, Director of Advocacy
Kolbe House
2434 So. California
Chicago, Il. 60608
773-247-0070

This is TalkLeft's 2,000 entry in the nine months we've been posting. We were hoping when the time came we would have something important to write about and we do: This afternoon a panel of the Illinois House voted to abolish the death penalty.

March 6, 2003, 12:01 PM CST

SPRINGFIELD -- An Illinois House committee voted Thursday to abolish the death penalty, raising the stakes in the long debate over how to respond to flaws in the state’s capital punishment system.

A judiciary committee approved the abolition bill 8-4, sending it to the floor for a vote by the full House.

The vote followed dramatic testimony from men who were sentenced to die for crimes they said they did not commit. Aaron Patterson described being given electric shocks and suffocated by Chicago police until he signed a false confession.

Rev. George Brooks, Director of Advocacy for Kolbe House in Chicago, attended the hearing and provides this first hand report:

I just returned from attending these hearings. There was a lot of emotion PRIOR to the testimony. As indicated the testimony, especially of Gary Gauger and Aaron Patterson was VERY emotional. HOWEVER, the some of the voting was the MOST emotional. One legislator detailed in tears about his brother being killed by a hit & run driver, how the person was never caught, how an "old" friend appeared like an "angel"--and he voted YES while in tears, which continued long after the vote. Another legislator voted her conscience, which is contrary to her constituents and to her husband and she was the ONLY Republican to "cross over" ( one voted present, hence 8-4.) She was in tears as she voted, which continued for a long time after the final vote. And those of us present..... highly emotional after the vote.

Update: Rev. George just told us he testified at today's hearing and will have more thoughts later, so check back. (Rev. George communicates via e-mail, neither he nor Kolbe House have a website yet.)

There's more good news in the death penalty area today: In Maryland, a bill to halt the death penalty pending further study passed a procedural hurdle in the state senate and will proceed to a full senate vote. While the bill's ultimate passage is said to be unlikely, it's not over till it's over.

Then there's some bad news: a lawyer and former judges say that in six days, a man will be put to death in Texas who is likely innocent. We know, the public thinks lots of guilty people claim to be innocent, but in this case, look who's backing inmate Delma Banks:

"But in Banks' case, evidence that he was unjustly convicted is compelling enough that former U.S. District Judge and FBI Director William Sessions, joined by two other former federal judges and a former federal prosecutor, has filed court arguments calling Banks' conviction a potential miscarriage of justice and asking that his execution be stopped. All four are considered strong supporters of the death penalty. "The questions presented in Mr. Banks' petition directly implicate the integrity of the administration of the death penalty in this country," the four men argue in a friend of the court brief. "The prosecutors in this case concealed important impeachment material from the defense."

Mark Fiore has become our favorite animated cartoonist. His newest is a must view --"Execution Alive and Well"

[link via Gideon's Promise]

From today's Chicago Tribune,

Moving on major anti-crime initiatives, a key Senate committee voted Tuesday to approve sweeping death penalty reforms, mandate taping of interrogations in murder cases and require police to record the race of every driver in traffic stops over the next three years."

In a busy legislative day, the Senate Judiciary Committee also voted to let police stop motorists simply for failing to wear their seat belts and to restrict young teen drivers from getting behind the wheel late at night and with carloads of their friends.

The death penalty reforms represented a major step toward overhauling the state's broken criminal justice system and culled key elements from separate task forces put together by former Gov. George Ryan and Senate Democrats, said Senate President Emil Jones (D-Chicago).