A Symbol for our Times

Texas about to kill an innocent man.

Mr. Banks, a man with no prior criminal record, is most likely innocent of the charge that put him on death row. Fearing a tragic miscarriage of justice, three former federal judges (including William Sessions, a former director of the F.B.I.) have urged the U.S. Supreme Court to block Wednesday's execution.

So far, no one seems to be listening.

"The prosecutors in this case concealed important impeachment material from the defense," said Mr. Sessions and the other former judges, John J. Gibbons and Timothy K. Lewis, in an extraordinary friend-of-the court brief.

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Just two weeks ago the Supreme Court handed down a ruling that criticized courts in Texas for ignoring evidence of racial bias in a death penalty case. Lawyers in the case noted that up until the mid-1970's prosecutors in Dallas actually had a manual that said, "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well-educated."

The significant evidence against Mr. Banks was the testimony of two hard-core drug addicts. One was a paid informant. The other was a career felon facing a long prison term who was told that a pending arson charge would be dismissed if he performed "well" while testifying against Mr. Banks.

The prosecution deliberately suppressed information about its arrangements with these witnesses — information that it was obliged by law to turn over to the defense


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And prosecutors made sure that all the jurors at Mr. Banks's trial were white. That was routine. Lawyers handling Mr. Banks's appeal have shown that from 1975 through 1980 prosecutors in Bowie County, where Mr. Banks was tried, accepted more than 80 percent of qualified white jurors in felony cases, while peremptorily removing more than 90 percent of qualified black jurors.

The strongest evidence pointing to Mr. Banks's innocence was physical. He was in Dallas, more than three hours away from Texarkana, when Mr. Whitehead was killed, according to the best estimates of the time of death, based on the autopsy results.