The Case of Delma Banks: Part II

In Part I of this two part story on Delma Banks, I laid out the State's slam-dunk case against Delma Banks. Banks came to my attention because the Supreme Court just recently cleared the way for Texas to kill him. Texas had been giving it their best shot for almost thirty years (the murder having occurred in 1980) and they had come within 10 minutes of doing so in 2003, but the path now looks more clear than ever.

If you wish to experience this post as I intended, you should first read of the State's no-brainer case as I took the trouble to present it in The Case of Delma Banks: Part I. I know you won't do that though, if you haven't done so already. I know you. And you won't do that.

So I'll do the next best thing. I'll give you a real quick summary of the State's case, real quick, and then I'll go through it again as I did in my first post. This time, however, I'll add the tidbits that bring uncertainty to this seemingly open-and-shut case.

Real Quick Summary:
Richard Whitehead was found dead in a park where he and Delma Banks had been seen sharing beers late at night. At 4 AM the next morning, Whitehead was shot 3 times. Just 4.5 hours later, Delma Banks arrived in Dallas, 180 miles to the west, driving Whitehead's Mustang and carrying the gun which later tested as the murder weapon. There, Banks admitted to Charles Cook, the State's primary witness, that he had killed someone.

Now on with our story.

On Friday evening, 11 April 1980, 16-year-old Richard Whitehead (the soon-to-be victim) and a 14-year-old female friend, Patricia Hicks, encountered 21-year-old Banks at a bowling alley, and agreed to give him a ride home. Departing in Whitehead’s distinctive green Mustang (with a primer hood), the trio ended up drinking Coors beer together in a secluded park near Nash, Texas. Nash is a small town four miles west of the border town of Texarkana, where Banks lived with his parents.

(By the way, Patricia Hicks reported that she observed no animosity between Banks and Whitehead. She also reported that Whitehead's distinctive green Mustang was an electrical piece of crap. It had an alternator problem and could not travel very far without being jump-started and without having the battery trickle-charged. The problem would be particularly acute at night when driving with the lights on.)

Around 11:00 PM, the trio left the park and drove Patricia Hicks' home. Whitehead and Banks left Hick's house in the victim's Mustang. They briefly visited another of the Whitehead’s friends, Patricia Bungardt, shortly before midnight. That friend too witnessed Whitehead and Hicks traveling in Whitehead's distinctive green Mustang.

(By the way again, Patricia Bungardt reported the same things as did Patricia Hicks. No animosity and an electrical piece of crap.) 

A few hours later, at about 4:00 AM on Saturday, 12 April, Mike Fisher heard two gunshots coming from the part of the park where Whitehead and Banks had been drinking beer. On Monday, 14 April, at 10 AM, Whitehead's body was found in that portion of the park. He had been shot three times; his Mustang was missing; empty cans of Coors beer were strewn about.

(Actually, Fisher heard something that sounded like gunshots. At least that's what he testified. It might also have been fireworks or a car back-firing. Or so he testified. Note also that Banks heard 2 gunshot-like sounds. Whitehead had been shot 3 times.)



(Wait, wait, wait. Before we move on, this is really important. When Whitehead's body was found on Monday morning at 10 AM, his body was still in a state of rigor mortis. Rigor mortis sets in 3 to 12 hours after death, then relaxes 36 to 48 hours after death. That would put the time of death no earlier than 10 AM Saturday morning, 6 hours after Fisher heard the two gunshots. Okay, now back to the story.)

(Oh yeah. One more very important piece of medical arcana. Whitehead's corneas were clear at the time of the autopsy. That means they were clear at the time the body was found. Corneas cloud over somewhere between 12 and 24 hours after death if eyes are closed postmortem, and within 3 hours of death if eyes are open postmortem. That means the time of death was no earlier than 10 AM Sunday morning, 30 hours after Fisher heard the two gunshots.)

Returning to the early hours of Saturday morning, Banks traveled approximately 175 miles west to Dallas, Texas. He arrived by 8:30 AM, about 4.5 hours after the gunshots had been heard. When Banks arrived in Dallas, he was driving a distinctive, multi-colored Mustang. There he stopped and asked a couple for directions. That couple, Charles Cook and his soon-to-be wife, Rita, were waiting for a bus that would transport Rita to her place of work. 

(How the hell did that Mustang ever make it to Dallas that quickly if its alternator was out, as Patricia Hicks and Patricia Bungardt reported? They had no reason to lie for Banks. They had just met him. They were Whitehead's friends, not Banks' friends. Why would they lie?)

(I actually have personal knowledge of a similar alternator problem. I was living in Fort Walton Beach in Florida. A friend purchased a brand new car in Mississippi, for some reason, and was driving it back to Fort Walton Beach when it died on him. The alternator was not working. He drove pretty far on the battery when it was daylight, but when night fell and he turned on his headlights, bamm!  Car stopped soon thereafter. He called me. I drove the 60 miles to Florala, on the border, jump-started his brand new car and trickle charged his battery with my Mustang. That's right, I had a Mustang, but I bought it fair and square.)

(Anyway, we made it only about 5 minutes before my friend's car came to a stop and we had to do it all over again. This time, he decided he would drive with only his parking lights on, that he would follow me, and my headlights would be his headlights. We did much better that way until he got stopped by a cop. He explained the situation and was actually allowed to proceed. We stopped 3 or 4 more times to charge his battery, but we got him home. The 60 mile trip took 4 or 5 hours as I recall. Trickle charging is really sloooooow. Soooooo .... if Banks' Mustang had an electrical problem, as his two friends report, I don't see any way he  could have driven it 180 miles to Dallas in only 4.5 hours. At night.)

Charles Cook talked Banks into giving Rita a ride to work, and the three departed in the Mustang. After dropping Rita off at work, Cook and Banks continued to ride around together for much of the day.  They visited Cook's sister who also noticed the distinctive green Mustang (with primer hood). Banks stayed the next two nights with Cook and his family at Cook’s grandparents’ house in Dallas.

(That should just about finish off the State's case. Their chief witness, Charles Cook, placed Delma Banks in Texas at the very time Whitehead was murdered, assuming you rely on the medical evidence rather than the Fisher's two gunshot story. No jury could possibly convict knowing that the State's chief witness placed Banks 180 miles away from the scene at the time-of-death specified by the State's medical examiner.)

(Oops. It seems that during the trial, the Medical Examiner failed to specify the time of death. He did mention the bit about the body being in a state of rigor, and the corneas being clear, and a whole bunch of other medical stuff, but he didn't explain what it all meant. The State never got around to asking pointed questions about time of death, and the defense maybe dropped the ball on this issue. They didn't ask either. Oh, well. It will all get fixed in the appeal process should it ever come to that.)

That Saturday, while riding around Dallas in the Mustang, Cook noticed blood on one leg of Banks’ trousers. When asked about the blood, Banks said he had shot a “white boy”. That evening, Banks told Cook that he had “decided to kill the white boy for the hell of it and take his car and come to Dallas”.

(I'll note here that Banks had no prior record, nor any particular history of violence. Banks had been in a fight with one Vetrano Jefferson one week before the murder, but Vetrano later admitted he had started the fight. The problem with that fight, from Banks' standpoint, is that he hit Vetrano with a gun. That shows he had a gun shortly before the murder, and carried it with him on his person, at least some time.)

Cook noticed that Banks had a pistol. On Sunday evening, Cook took the pistol away from Banks and hid it. It was later identified as a .25 caliber Galesi handgun.

(I'll note here that Charles Cook did have a record. He had been convicted of two felonies. He was facing a pending arson charge that would have made him a habitual offender and subjected him to life in prison. He was told he would receive favorable treatment if he performed "well" for the jury. The arson charge was dropped almost immediately after his testimony.)

On Sunday, Banks made a collect call from Cook's house to his mother in Texarkana. Banks’ mother urged him to turn himself in. Later that weekend, Banks shared this information with Cook’s neighbor, Bennie Lee Jones.

(In fact, the statement Jones recounted clearly referenced an unrelated incident, likely the fight between Banks and Vetrano Jefferson, which did not involve a shooting.)

After spending Saturday and Sunday night with Cook, Banks was given bus fare  by Rita. On Monday, 14 April, Banks' boarded a Greyhound bus bound for Texarkana.

Early on Tuesday morning, 15 April, Cook abandoned the multi-colored Mustang in West Dallas. It was never recovered. Shortly thereafter, Cook sold the .25 caliber Galesi pistol, along with some jumper cables and tools from the Mustang, to his previously-mentioned neighbor, Bennie Lee Jones.

(This is really suspicious. The car which is critical to the State case can't be found. Their primary witness, Charles Cook, claims he dumped the Mustang somewhere but can't remember where. And while Cook admitted to selling the jumper cables, tools, and a gun because he needed the money, he didn't try to sell an entire Mustang?)

Later that month, Banks telephoned Cook twice in an attempt to recover his .25 caliber Galesi pistol. On 23 April, Banks returned to Dallas. He traveled with two acquaintances, Robert Farr and Marcus Jefferson. Farr was Banks’ girlfriend’s brother-in-law. Marcus Jefferson was Banks’ girlfriend’s brother. Unknown to Banks, he was followed by law-enforcement personnel.

(What the jury never learned was that the law-enforcement personnel knew to follow Banks because Farr was a paid informant. The cops had recruited Farr to trick Banks into getting him a gun. Farr had been the one who initiated the entire business about securing a gun. Farr told Banks he needed a gun so he could commit robberies. Like Cook, Farr was facing charges, for drugs. Like Cook, Farr skated on the charges.)

(That being said, it's bothersome that Banks would help someone secure a gun so that person could commit robberies. That assumes Farr is not lying about that. It's also troublesome that Banks knew Charles Cole had a gun which he would give to Banks.  That has nothing to do with whether or not Farr lied.)

Upon arriving in Dallas, Banks drove around, looking for Cook’s house. Upon locating it, Banks went to the door of the house while Robert Farr and Marcus Jefferson waited in the vehicle. Banks asked Cook for his gun. Banks returned to the vehicle, and they departed. In the vehicle, Banks told Farr and Jefferson that Cook didn’t have his gun because he had given it to someone else. Cook, instead, gave Banks a .22 caliber pistol.

(Farr later recanted this testimony, claiming that the police had coerced him into saying that Banks claimed Cook told him he didn't have "his" gun.  During the trial, Farr perjured himself repeatedly by claiming to have had no contact with the police regarding his testimony, and by claiming he would not benefit from his testimony. As Farr perjured himself, the prosecution made no effort to inform the court or the defense of the perjury. In fact, during closing, the State claimed Farr was absolutely truthful.)

Departing from Cook’s house, Banks, still traveling with Robert Farr and Marcus Jefferson, apparently got lost trying to find the way back to the highway. The still-trailing law-enforcement personnel, after observing several traffic violations, initiated a traffic stop of Banks’ vehicle. A .22 caliber pistol was recovered from the vehicle. Banks was arrested, Farr and Jefferson were released.

On 24 April, the day after Banks had attempted to retrieve his pistol from Cook, law-enforcement personnel visited Cook and asked for Banks’ pistol. They were taken to neighbor Jones’ house. There, Bennie Lee Jones returned the .25 caliber Galesi pistol to Cook, who provided it to the police. This pistol was later determined to be the weapon that fired the bullets that killed 16-year-old Richard Whitehead.

(The State's ballistics expert testified that the pistol was "likely" to be the murder weapon. Banks' attorney did not ask any questions of the State's ballistics expert. Vetrano Jones, who had seen Banks' gun up close and personal, see above, told investigators that the .25 Galesi weapon was not, repeat not, Banks' gun.)

In summary, Banks was the last person seen with Whitehead. Whitehead was killed where he and Banks had been drinking earlier. Banks drove to Dallas in Whitehead's Mustang. The murder weapon, a .25 caliber Galesi pistol, ended up in Dallas at the same time and place as Banks. Banks attempted to recover the gun, and identified the gun as "his" to his two companions.

So there you go. Case closed. 

Maybe.

(Maybe not.)

<<>>

The case leaves me baffled. The situation with the gun looks horrible for Banks. If the Galesi was the murder weapon (and no one disputed that during trial), then I think Banks did it, even if I can't figure out the timing. There is no other explanation for the murder weapon arriving in Cook's house at the same time as Banks. Banks and Cook didn't know each other before that weekend.

Vetrano Jefferson's statements about the gun (and his fight with Banks) are of mixed value. On one hand, the fight shows that Banks carried at gun on his person just a week before the murder. On the other hand, the fight gave Vetrano a good look at the gun, a real good look, and Vetrano was adamant the gun was different than the .25 cal Galesi that the State says is a murder weapon.

On the flip side, the time-of-death indicators (rigor and lack or corneal cloudiness) pretty much put the lie to the State's case. Those indicators, coupled with the State's perjurious primary witness, put Banks in Dallas when Whitehead was being murdered.

And finally, the Mustang. Was it a piece of crap, as Whitehead's two female friends claimed, or was did it run like "a race car", as the State's lying primary witness claimed?  And it sure is convenient that Cook dumped the car but can't remember where.

So I've done the best I can with my Actual Innocence Scorecard on this one. It shouldn't surprise you it came out close to 50-50. The final answer was 57, meaning I think there is a 43% chance Banks did it.

If I had been on that jury, however, I probably would have voted guilty. I would not have known that Cook and Farr were perjuring themselves, that the prosecutors knew they were committing perjury, that the prosecutors had given each of their two witnesses powerful incentives for telling me the story the State wanted me to hear. I wouldn't have, at that time, understood the significance of the state of rigor and lack of corneal cloudiness.

On the other hand, if I was on that jury and knew then what I know now, I would have voted not guilty. I'm not sure whether Banks killed Whitehead or not, and that is a big fat "Not Guilty" vote. At least in my book.

Delma Banks may be innocent. Delma Banks deserves a new trial because of the outrageous behavior of those who prosecuted him. I doubt that Delma Banks would be convicted in a second trial, given the now acknowledged perjurious testimony and favorable treatment of Cook and Farr. It is extremely likely, however, that Texas will instead execute Delma Banks.

Ladies and Gentlemen, I submit to you that we have some serious problems with our criminal justice system.

tsj
3May 2010