The United States Supreme Court overturned Mr. Banks’s death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered their mistakes for decades.
“It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Mr. Banks’s appellate lawyers.
Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Mr. Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Mr. Banks until he “gets what he deserves.”
At a hearing Monday in a Bowie County state district court, Mr. Banks’s lawyers will ask Judge Nathan E. White to disqualify Mr. Elliott and the local district attorney’s office from the case and to assign different lawyers to represent the state.
“Mr. Elliott’s misbehavior proves that he cannot serve as a disinterested prosecutor and is laboring under a conflict of interest that will prevent Mr. Banks from receiving a fair trial,” lawyers wrote in court documents.
Mr. Banks, who is black and was 21 when the crime was committed, was convicted of killing Mr. Whitehead, who was white, so he could take off with his car. The police found Mr. Whitehead’s body in a park near Texarkana and soon discovered that Mr. Banks had been with him on the last night he was seen alive.
There were no witnesses to the killing and no physical evidence linking Mr. Banks to it. The prosecution’s case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Mr. Cook also had convictions for robbery by assault and forgery.
Mr. Cook told the jury that he met Mr. Banks in Dallas the morning after the murder. He said Mr. Banks had blood on his pants and told him he decided to “kill the white boy for the hell of it and take his car and come to Dallas.”
Mr. Farr testified that he, Mr. Banks and another man drove to Dallas on the day that Mr. Banks was arrested so Mr. Banks could retrieve a gun to use in armed robberies. Mr. Farr said Mr. Banks told him he would “take care of it” if any trouble arose.
Mr. Banks had no criminal history, and people who were with him and Mr. Whitehead on the last night that Mr. Whitehead was alive testified there was no ill will between the two. Nonetheless, an all-white Bowie County jury convicted Mr. Banks, who was sentenced to death.
In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Mr. Banks’s lawyers discovered a transcript showing that Mr. Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Mr. Farr, an informant who had an unreliable record, $200 for his role in the investigation.
Mr. Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Mr. Banks, he said, persuading him to drive to Dallas to get a gun.
Prosecutors allowed Mr. Cook and Mr. Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Mr. Cook denied on the stand that anyone had helped him with his testimony, and Mr. Farr said he had not been paid for his help in the case. During closing arguments, Mr. Elliott told jurors that they should believe Mr. Cook and Mr. Farr.
In arguments before the Supreme Court, state lawyers did not dispute that Mr. Cook had been coached and that Mr. Farr was paid for his help. But they said Mr. Banks’s lawyers were at fault for not uncovering the information sooner.
The Supreme Court ruled that without the testimony of Mr. Cook and Mr. Farr, Mr. Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’?” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.
Mr. Elliott declined to comment last week about the case. “We’re in litigation,” he said. “The newspaper is the wrong place to be trying cases — it just is. So I can’t give any comment.”
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