As others reconsider death row, Texas ups the pace


LIVINGSTON, Texas - Illinois has emptied its Death Row. Much of the rest of the nation is rethinking its use of the death penalty. Yet here in the state with the country's busiest death chamber, executions are proceeding at a record pace.

Eight of the nation's first 10 executions in 2003 - including six in January - were carried out in the Huntsville prison unit commonly called The Walls. Nearly half of the next two dozen scheduled executions also will be in Texas.

By the end of March, Texas should record its 300th execution - more than one-third of all those in the country since the mid-1970s, when the death penalty was reinstated in the United States after a brief Supreme Court-imposed hiatus.

Delma Banks Jr. has been on Texas' death row so long that he has seen every one of those men and women taken to their execution.

Now, if Banks' final appeals fail to win him a reprieve, he will be put to death March 12, although the case against him is marked by many of the issues that have fueled criticism of Texas' assembly-line approach to the death penalty.

Banks is on death row for the murder of 16-year-old Richard Whitehead, who was shot to death in 1980 at a park in a suburb of Texarkana in eastern Texas. Banks has maintained his innocence.

Banks, who is black, was 21 when he was tried and convicted by an all-white jury in a county where, according to one study, few blacks served on juries when Banks' case went to court later in 1980. Prosecutors at the trial struck four black prospective jurors.

The defense attorney at his trial, a former district attorney named Lynn Cooksey, performed woefully. Cooksey repeatedly told the judge that he had barely prepared for the trial and that he did not have information that prosecutors were supposed to turn over to him, such as witnesses' criminal records.

Once Banks had been found guilty, Cooksey did little for the sentencing hearing, when Banks' life was on the line, according to court records. The attorney did not prepare his witnesses and asked only perfunctory questions. Evidence of Banks' severe abuse by an alcoholic father, a potentially mitigating factor, was ignored.

According to a federal judge, prosecutors withheld evidence that a key witness was working as a paid police informant. That witness and another - the two key witnesses against Banks - have since said in affidavits or court testimony that police officers coerced them to testify falsely against Banks.

The errors and alleged misconduct in the case were enough for a U.S. District Court judge to order a new sentencing hearing and give Banks a chance to gain a lesser sentence while also fighting his conviction.

But the New Orleans-based 5th U.S. Circuit Court of Appeals reversed the judge. While the court acknowledged that Banks' case was marked by errors, it reset Banks on a course for execution.

"At the time I thought Lynn Cooksey was doing a job," Banks, 44, said during an interview on death row. "But I didn't know what a lawyer was supposed to do. I came down here and started studying my case. I found he didn't do nothing."

Cooksey could not be reached for comment.

In many ways, Banks' case is emblematic of the death penalty in Texas, where cases move deliberately toward execution in spite of issues that raise questions about the guilt of the inmate or the fairness of the trial or appeal.

A Chicago Tribune investigation of the death penalty in Texas in June 2000 found that the system was repeatedly compromised by the use of unreliable evidence, incompetent defense attorneys and an appeals system that often fails to remedy injustices.

This year - as Texas moves toward possibly breaking its record of 40 executions in a year, set in 2000 - the cases involving those put to death by the state have raised troubling issues.

One man's state appeal was presided over by a judge who had been a prosecutor and done research for prosecutors at the man's original trial, according to defense attorneys.

Another prisoner had no federal review of his case because his attorney filed his appeal five days after a key deadline. Consequently, the prisoner forfeited that critical stage of review, although the mistake was his attorney's, not his.

Another inmate was executed even though the jurors who convicted him later signed a statement in which they requested that he be allowed DNA testing before his execution.

Other inmates claimed that their attorneys were incompetent or inexperienced or that the inmates suffered from brain damage - issues that might have been grounds for relief from an appeals court.

Steve Mills is a reporter for the Chicago Tribune, a Tribune Publishing newspaper.

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