- The Washington Times - Wednesday, March 12, 2003

HUNTSVILLE, Texas Attorneys for a man who has languished on Texas' death row for more than 22 years said they are hoping the U.S. Supreme Court halts his scheduled execution tonight, but admit the odds are against them.
Delma Banks Jr., 44, convicted of killing a Texarkana area teenager in April 1980, has watched 299 other Texas inmates march into the execution chamber since he arrived on death row at age 21.
Tonight he would become the 300th inmate to die since the state reinstituted the death penalty in 1982.
The Banks case has rallied death-penalty opponents and its share of worldwide scorn against what some see as an assembly-line type of execution process in Texas. There, however, are some new twists.
For one, former U.S. Attorney General William Sessions has filed a brief with the high court, insisting Banks did not receive a fair trial.
Also, a pair of witnesses who testified against Banks and were not cross-examined later admitted they had lied and made a deal with prosecutors.
Banks insists he didn't do it. He has admitted drinking beer and driving around with the victim, Richard Wayne Whitehead, 16, but said he didn't fatally shoot him.
Mr. Sessions' brief, filed with three other lawyers, says Banks' original attorney did not provide a vigorous defense and refused to cross-examine the prosecution's witnesses. It also said that the state withheld a crucial witness interview for 19 years.
"These claims go to the very heart of the effective functioning of the capital punishment system," the "friend-of-court" brief said.
On Monday, attorneys for Banks experienced setbacks as both the Texas Court of Criminal Appeals and the Texas Board of Pardons and Paroles denied pleas.
The criminal appeals court ruled against a stay of execution, and the parole group refused to consider clemency because, according to its chairman, Gerald Garrett, Banks' attorneys were a week late in filing the request.
"They missed this by a country mile," Mr. Garrett said. "If we set about these responsibilities at the midnight hour, we would be chastised for not taking enough time to review the case."
Though the appeals court did not state a reason for denial, one member, Cathy Cochran, issued a separate opinion. She voted to deny because Banks already had raised the issues in federal court and had lost.
"He has had his fair share of due process in our state criminal justice system," she added.
No state court considered the two prosecution witnesses who later admitted they had lied because by the time they were found, Banks already was appealing in federal court. Texas rules of procedure prohibit a defendant from filing a state court appeal while his case is in federal court.
In August 2000, a federal district court threw out Banks' death sentence, citing that prosecutors withheld important evidence from his defense and that his attorney was incompetent.
The 5th Circuit Court of Appeals reversed the decision within a week and reinstated the death sentence.
During his trial, prosecutors tried to offer Banks a life sentence for a guilty plea. He was told there was a possibility that he could be paroled in seven years.
"But I wasn't guilty then and I ain't guilty now," he said a few years ago.
Gov. Rick Perry could grant a 30-day stay, but George Kendall, a New York lawyer with the Legal Defense and Educational Fund of the National Association for the Advancement of Colored People, said that's a long shot.
"We're running out of places to go," Mr. Kendall said.

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