Motion Seeks Ouster of Prosecutor for ‘Get What He Deserves’ Media Comment
Lawyers for an inmate whose death sentence was overturned due to misconduct by a Texas District Attorney’s office are seeking to oust one of the original prosecutors from a new sentencing hearing.
Lawyers for Delma Banks Jr. say the entire Bowie County DA’s office should be tossed from the case, including prosecutor James Elliott, who was involved in the original trial, according to the New York Times and the Texas Tribune.
The motion cites a media comment made by Elliott after the U.S. Supreme Court overturned Banks’ sentence in 2004. “I have not read the opinion, but it doesn’t matter,” Elliott told the Chicago Tribune at the time. “We are going to pursue this case until Delma Banks gets what he deserves.”
Justice Ruth Bader Ginsburg wrote the 2004 majority opinion that found the prosecutor’s office had suppressed evidence and misled jurors. Banks’ lawyers argue the prosecution’s “serial misconduct” justifies its disqualification, and Elliott’s media comment shows he is not objective. The defense is also seeking a new trial.
At a hearing on the motion on Monday, Elliott had said he was not aware that one of the two men who testified against Banks had been coached and that the other was a paid informant, the Texas Tribune says. Banks was with the victim on the night of the murder, but no physical evidence linked him to the crime, and no witnesses saw it.
One of the men who testified in the original trial—the coached witness—said Banks admitting killing “the white boy for the hell of it.” The other testified he had accompanied Banks to get a gun for armed robberies, but later said he had set up Banks to avoid a feared arrest on drug charges.
During the hearing on Monday, Elliott said he made a promise to the victim’s father to stay with the case, and he intended to keep it, the Texas Tribune says. “I have lived with this case since its inception,” Elliott said. “I would respectfully ask the court let me see it through.”