Editor: Can you provide our readers with something of your background and experience?
Kendall: I became a member of the bar in 1979. After several years of private practice in Washington, DC, I became a staff attorney with the American Civil Liberties Union in Atlanta in a capital punishment project. At the time there were many individuals in Georgia and in other southern states under sentence of death who had no legal representation. My job was to provide representation for some of these individuals and to cajole other lawyers into taking on cases pro bono. In 1988, I came to New York to become assistant counsel at the NAACP Legal Defense Fund, where I practiced for 15 years on criminal justice matters. I joined Holland & Knight in July of 2003. My position here is that of Senior Counsel, and I am assigned to the firm's Community Services Team, which is engaged in much of the firm's pro bono work.
Editor: There has been considerable press coverage of the Texas death row inmate, Delma Banks, Jr., whom you represented before the United States Supreme Court. For starters, would you give us some background on this case?
Kendall: This case arose in Texarkana, Texas in the spring of 1980. A young sixteen-year old named Richard Whitehead was found dead in a park. About ten days later Delma Banks, Jr., who was then 21 years old and who had no prior record, was arrested for the crime and, later that year, tried, convicted and sentenced to death. His case then went into the appellate review process. I became involved in 1996, as his case was leaving the Texas court system and entering the federal system. The NAACP Legal Defense Fund had worked on this matter for some time, and the more we looked at it, the more we became convinced that the state had utilized very unreliable evidence and, indeed, had used perjury to convict Mr. Banks. In addition, we came to believe that the lawyer his family had retained had made very little effort to provide him with a decent defense. Finally, we uncovered evidence to suggest that the crime had taken place at a time different from what appeared in the state's case and that, accordingly, Mr. Banks could not have been connected to it.
After developing evidence to support these claims, we were able to persuade a federal judge in Texas to give us a hearing. We thereupon presented evidence that, among other things, showed that two key witnesses for the state had committed perjury, and that the prosecutors, despite knowing this, assured jurors the witnesses had testified truthfully. We also presented evidence that, even if the jury had believed Mr. Banks guilty of the murder, they would not have returned a death sentence had they been made aware of his first offender status and the harsh circumstances of his life. The federal district judge agreed with us on two of these claims and vacated Mr. Banks' death sentence finding, among other things, that the state's key witnesses had lied.
The state appealed. In August of 2002 the Fifth Circuit Court of Appeals, in a 78-page opinion marked "not for publication," reversed all the relief that the district court had ordered. I should point out that the opinions of almost all the courts that review death penalty cases are published and available to the public. The Fifth Circuit, however, has a practice of not publishing some of its opinions in these cases.As Mr. Banks' attorneys we did have access to the opinion, and it was clear to us that the court had erred significantly, including failing to apply controlling United States Supreme Court precedent.
Editor: With 24 years on death row and 15 execution dates, Delma Banks has had an extraordinary life in court. Can you give us some idea of what he has been through?
Kendall: The environment of death row in Texas is very harsh. Delma Banks lives in a community where, each year, more than 20 people leave and are put to death. Several times a year he suffers from a flare-up of an absolutely horrendous case of eczema, which is, of course, related to the stress under which he lives. Delma has to constantly struggle to obtain medicine to control this disease. In addition, for 23 hours a day he is locked in a cell by himself. His life has been, and is, horrendous.
Death row anywhere is difficult. In New Jersey, however, there have been no executions for a very long time, so the climate is somewhat different from that of Texas.
Editor: Mr. Banks is African-American?
Kendall: Yes, he is.
Editor: What about the other death row inmates in Texas?
Kendall: The slim majority is white. The significant minority is African-American, and there is a significant number of Hispanics as well. What determines which murder cases become capital cases in our country is more the race of the victim than that of the perpetrator. Very often where the victim is white, the press will become interested and the local officials will feel pressured to seek the death penalty. In our country, most whites are killed by whites, most blacks are killed by blacks, and most Hispanics are killed by Hispanics. This is true of Texas as well. What is also true of Texas is that while a very sizable majority of homicide victims are not white, the majority of those sent to death row have been convicted of killing whites. Race does matter.
Editor: Are there conclusions to be drawn from this?
Kendall: What this state of affairs says is that we have yet to move beyond race in the administration of the death penalty. For centuries, harsher penalties prevailed if the victim was white, and indeed this practice was codified in the law. These statutes have been abolished, but the practices they sanctioned are still with us.
Editor: You have taken us through the district court in Texas and the unpublished opinion of the Fifth Circuit. Can you take us through the proceeding before the United States Supreme Court?
Kendall: The Supreme Court is an extraordinary place to argue a case. The justices are very well prepared, and they know the record almost as well as you do. You have 30 minutes to make your case, and the challenge, particularly in a case as complicated as this one, is to use your time effectively. Once the justices start with their questions, they never stop. It is a wonderful opportunity for an appellate advocate, but the responsibility is very great.
Editor: I understand a number of amicus briefs were filed in the case.
Kendall: There were three amicus briefs filed in support of Mr. Banks, one by the American Bar Association and two quite unusual ones. Six former state and federal judges filed a brief urging the court to address what they saw as very clear problems in the case, and similar problems that appear in other cases; their brief was supported by one filed by four former state and federal prosecutors. These briefs reflect the degree to which these and other distinguished individuals are concerned about systemic problems that plague the administration of criminal justice.
Editor: What about the individual justices? Can you characterize them, or any of them, on the death penalty?
Kendall: These justices have sat together for a long time, and they have a track record. Chief Justice William Rehnquist and Justices Scalia and Thomas usually vote in favor of the state in these cases.Justices Breyer, Ginsburg, Souter and Stevens, however, will go the other way if you can present a good claim. The swing votes are those of Justices Kennedy and O'Connor.
Editor: At this point where does the Supreme Court stand on Delma Banks' claim that prosecutorial misconduct rendered his murder conviction unconstitutional?
Kendall: The Court's opinion is still being written and is expected this spring. As for the lawfulness of the conviction, it may be too much to expect a final adjudication. The court may send the issue, with instructions, back to the Fifth Circuit in New Orleans or to the district court in Texarkana.
As for the implications of this case, I would hope that the attention it has received will result in a very hard look at prosecutorial misconduct, as well as bad lawyering, in capital cases, and in some concrete steps to improve defense representation in these cases.
Editor: Would you share some of your personal reflections on having represented Delma Banks before the Supreme Court? I should think you must have a great deal of personal satisfaction from having used your professional skills this way.
Kendall: A year ago we faced an execution date of March 12, and we knew that no state had been more successful than Texas in executing condemned prisoners. The odds appeared to be pretty great. The first satisfaction I experienced was in having a former federal prosecutor and three former judges, including former FBI Director William Sessions, file a petition urging the Supreme Court to take our case. I think that helped the court to see that there might be something there. I felt a great deal of satisfaction in the media support as well. And certainly the day that certiorari was granted was a day of great personal satisfaction. At the same time, there is a certain degree of sorrow connected with these cases, and I have come to know at least something of what the family of the victim, Richard Whitehead, has experienced, as well as Delma Bank's family.
Editor: Your contribution is very meaningful. Is there anything you would like to add?
Kendall: I would like to say that the two places I have worked during this period, the NAACP Legal Defense Fund and Holland & Knight, could not have been more supportive in all of these efforts. Delma Banks and his family will be eternally grateful for that support. And the efforts of my co-counsel, Miriam Gohara at the NAACP LDF and Laura Fernandez at Holland & Knight, have been exemplary.
Published March 1, 2004.