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Who Will Bring Texas Prosecutor James Elliott to Justice In the Delma Banks Case? He’s Retrying a 30 Yr Old Death Penalty Case Despite US Supreme Ct Rebuke

In 2004, Texas Death Row inmate Delma Banks’ case came before the United States Supreme Court, where the Highest Court in the Land found that prosecutors had done very bad things — they had suppressed evidence, they had hidden their own mistakes, etc. — and because of this, Banks’ case was overturned.  Read the U.S. Supreme Court opinion here, written by Justice Ruth Bader Ginsburg.

The Texas Tribune quoted UT Law professor Robert C. Owen (and Banks’ co-appellate counsel) as saying that “… just about every kind of thing the prosecution could do that was improper….” was done in this case.

You’d think that the Bowie County district attorney’s office might be a little, well, chagrined about this.  Embarrassed.  You’d think that maybe they would treat the case a bit differently once it came back to their desk, right?

Wrong. The same prosecutor that manned that helm 30 years ago in this notorious prosecution is going back to court, seeking the death penalty against Delma Banks again. AGAIN.

James Elliott is on a mission, according to the Tribune, to go after Banks until Banks “ …gets what he deserves.

Moving to Disqualify

Next Monday, no surprise to anyone, Mr. Banks’ motion to disqualify Jim Elliott will be heard before District Judge Nathan E. White – along with the rest of the Bowie County District Attorney’s Office. Bias. Conflict of Interest. You follow the gist of things.

Seems like it will be an easy call for the court. After all, the record will show (remember, you’ve got records that include a United States Supreme Court opinion here) that among other things:

  • there was no physical evidence linking Banks to the crime of killing Whitehead
  • there were no witnesses to the killing
  • Banks was black and 21 years old at the time of the killing
  • Whitehead was white
  • Banks had no criminal record
  • Witnesses who saw Banks and Whitehead together that night said they were fine, no ill will
  • it was an all-white jury that convicted Banks
  • it was an all-white jury that sentenced Banks to death

And, importantly, the record will show that 20 years after the trial, a federal district court judge forced the Bowie County, Texas, records to be opened and there it was found that:

  1. one of the two prosecution witnesses relied upon to prove their case had had his testimony rehearsed and coached – a lot; and
  2. the other prosecution witness had been a police informant with a record of being shifty who was paid $200 for his part in the case.

We join with Grits for Breakfast, asking why prosecutors are not disciplined by the State Bar or otherwise sanctioned when an appellate court finds prosecutorial misconduct.

On Monday, the well-respected Texas blogger Scott Henson at Grits for Breakfast published a post worth reading, entitled, “ Why aren’t prosecutors held accountable when appellate courts find knowing misconduct?.”

Looking at the Banks’ case as well as the analogous Anthony Graves case, Mr. Henson actually conducted a poll of his readers to find what they thought about disciplining district attorneys who do bad things during the prosecution of a criminal matter, particularly one where they are asking for the penalty of death.

Results?  An overwhelming number think that there should not be a shield of immunity here.

However, right now, the only bad thing that may happen to Texas prosecutor James Elliott is that he may be disqualified from the case on Monday.  Is justice served?

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