By Christina S. N. Lewis Court TV
The 23-year-long case of Delma Banks took a dramatic twist Wednesday when the U.S. Supreme Court intervened and stopped his execution 10 minutes before he was scheduled to die.
The move prevents Texas, for now, from reaching a grim milestone, its 300th execution since 1982, when the state resumed executing inmates.
Banks' case has drawn national attention, not only because his would be the 300th execution, but because prominent figures, not all of whom are death penalty opponents, believe there are reasons to question his conviction.
Former FBI director Williams Sessions, along with two retired federal appeals judges and a federal prosecutor in Chicago, petitioned the Supreme Court to consider the case because of "uncured constitutional errors in the process through which he was convicted and sentenced."
On Tuesday the Texas Parole Board refused to consider his appeal on a technicality — Banks' lawyers filed his paperwork a week late. If he had been put to death by lethal injection Wednesday night he would have been the 10th man to be executed in Texas this year. The state executed its 299th prisoner on Tuesday night.
Texas imposes capital punishment more aggressively than any other state. Last year the state put 33 men to death, nearly half of the 71 men executed in the U.S. in 2002.
Banks was a 21-year-old student with no police record when he was arrested on Oct. 15, 1980, for the execution-style murder of an acquaintance, 16-year-old Wayne Whitehead.
At trial two witnesses testified against him. But prosecutors did not tell Banks' court-appointed public defender that the witnesses were compensated in various ways in exchange for their testimony and that one of them lied on the stand.
In addition, Banks is black, his victim was white and he was convicted in one day by an all-white jury. Death penalty opponents frequently point out that Texas has historically excluded blacks and other minorities from juries.
"This is a case that has many of the elements that have led to mistaken convictions," said Richard Deiter, executive director of the Death Penalty Information Center. Those elements include "bad-lawyering, evidence withheld by the prosecution, racial disparities on the jury and witnesses who were given incentives for their testimony."
A number of studies — including a 2000 Texas Defender Service report and a 2002 Maryland report commissioned by then-governor Parris Glendening — have found that blacks charged with killing whites are more likely to be sentenced to death and executed. From 1972 until 2000 Texas had never executed a white person for the murder of a black person.
Supporters of Banks' execution counter that the inmate has had ample opportunities to present his claims to the courts and has received excellent appellate counsel with the help of the NAACP Legal Defense Fund.
In dismissing his appeal Monday the Texas Court of Criminal Appeals wrote, "In baseball, the batter is out after three strikes ... the applicant has had five strikes at habeas corpus relief ... After twenty-three years of litigation, review and re-review by this court and the federal courts, applicant has had his fair share of due process."
According to prosecutors, blacks were excluded from the jury because they knew Banks' family. They also noted that other witnesses whose testimony remains credible linked Banks to the crime.
"I absolutely know he is guilty of the crime, not just beyond a reasonable doubt but beyond any doubt whatsoever," said James Elliott, one of the prosecutors in Banks' original 1980 trial.
No justices dissented from the reprieve. Banks will not be executed until the court decides to review the case.
— The Associated Press contributed to this report.
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