Attorney George Kendall on the case of Delma Banks

Black, poor and innocent on death row

Delma Banks has been sitting on death row in Texas for the past 23 years–one of the longest periods of any death row prisoner. Delma, who is Black, was 21 years old when he was sentenced to death — by an all-white jury in northeastern Texas — for the shooting of a white 16-year-old. Delma had poor legal representation at trial, and a federal judge ruled that prosecutors withheld evidence and coached witnesses to lie on the stand. These witnesses have since come forward and signed affidavits saying that they lied.

Yet Delma has been scheduled to be executed 15 times. In March 2003, he came within 10 minutes of being killed before the U.S. Supreme Court granted him a stay. Delma’s case is now before the Supreme Court, and a decision is expected next spring. Marlene Martin talked about the case with George Kendall, Delma’s lawyer and staff attorney for the NAACP Legal Defense Fund.

How could this travesty of justice have happened?

I think this case shows to any reasonable observer that there’s a lot wrong with the administration of the death penalty in Texas. There’s no question about these glaring errors marring his trial, and yet he came within 10 minutes of being executed. And but for the intervention of the nation’s highest court, he would have been executed, even though we know that the two key witnesses for the state have recanted their crucial testimony–credibly. And there is next to no evidence tying Mr. Banks to this crime.

How is it that Delma could have been tried by an all-white jury?

In the five-year period leading up to Delma’s trial — and in fact during Delma’s trial — the district attorney’s office in Texarkana would use its preemptory strike to exclude African Americans. Our information showed that in many cases during that five-year period, over 90 percent of the African Americans who had qualified to serve on given juries were struck by the state. And in many cases, as a result, these were all-white juries. That’s exactly what happened in Delma’s case.

Why has this case dragged on for so long without justice being served?

There’ve been all kinds of things. During eight years, between 1984 and 1996, there was no activity on his case. His case was before a state court, which did nothing. It took a long time to get to the bottom of this case, because the state had so carefully hidden the defects. And some of their witnesses, the last thing they wanted to do was come forward and talk to us. And so this case is a good example of why these time limits that are being placed on appeals can oftentimes work against discovering truth — because people who lie don’t have a timetable for when they’re going to come back and tell the truth.

Is the poor quality of Delma’s legal representation typical or not?

The representation in Delma’s case was very bad. But it doesn’t stand out there by itself. There are numerous cases where the representation provided by the defense was as bad.

There is also, as has been documented in study after study, in these cases where the state thinks it has so much to lose if they don’t get the death penalty, a lot of cheating going on by the prosecution. And unfortunately, there’s very little done about that. The courts, while they sometimes will reverse convictions, never punish. In this case, it was clear that when these two critical state witnesses lied about certain things, the prosecutors in that courtroom knew they were lying, and they had an obligation to tell the jury that these witnesses were not truthful and to correct the testimony. And not only did they not do that, they got up in front of the jury during their closing arguments, and they told the jury that you can believe every word these witnesses said. That’s pretty bad stuff.

How important do you think public pressure is fighting the death penalty?

The only way the system is going to change and become more responsive to these problems is if the American people say quite clearly that, at the very least, the system has to operate very differently from the way it does.

People need to understand that the problems in this case go way beyond the death penalty. These are problems that deny all kinds of people their chance at getting a fair deal from the courts, and that’s just wrong. Under our constitution, everyone’s supposed to have their fair shake in court, and the problems in this case show quite graphically that that’s far from the case.

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