Murderer of 13 back in court

WILKES-BARRE, Pa. -- Jim Olson gets out of the shower, glances at the scar on his chest, and cannot help but recall that day 22 years ago when a madman with an assault rifle killed 13 people in a rampage in the hard-coal region of Pennsylvania.

Olson, who was shot at point-blank range, said he does not understand why the man responsible for one of the nation's worst mass murders has yet to be executed.

"What is the sense of having a death penalty if you don't use it or enforce it?" Olson, now 42, said at his home, a short distance from the spot where he nearly died.

George Banks, 61, was sent to death row in 1983. His death sentence was overturned three years ago by a federal appeals court in Philadelphia, which cited poorly written jury instructions.

The prosecutors' appeal of that decision will be argued before the US Supreme Court on Tuesday in a case that has implications for about 30 death row inmates in Pennsylvania and at least one in North Carolina.

Banks's lawyers argue that his death sentence should be thrown out because jurors might have thought they had to be unanimous in finding a mitigating circumstance for the crime, such as mental illness. A mitigating circumstance would support a sentence of life in prison.

In 1988, the Supreme Court struck down a Maryland law requiring jurors to agree unanimously that a mitigating circumstance existed before they were allowed to consider it. As a result of that ruling, a single juror can determine that a mitigating circumstance exists.

At issue now is whether the 1988 decision should be applied retroactively, and if so, whether the jury instructions in the Banks case violated it.

In Pennsylvania, where the last execution was in 1999, about 30 of the 232 inmates on death row are pursuing arguments similar to Banks's, according to the attorney general's office.

Kent S. Scheidegger of the nonprofit Criminal Justice Legal Foundation in Sacramento, Calif., said he is aware of only one other case, in North Carolina, that would be affected by the court's decision. Outside of Pennsylvania, he said, only a few states had a substantial number of cases affected by the 1988 ruling, and those have been resolved.

Banks, who was a prison guard, picked up his AR-15 semiautomatic rifle shortly before 2 a.m. on Sept. 25, 1982, and began shooting. He killed seven children, five of them his own; his three live-in girlfriends; a former girlfriend; her mother; and a bystander in the street.

Banks touched the muzzle to Olson's chest, told his neighbor, "You're not going to live long enough to tell anyone what I did," and fired. The bullet passed through Olson's body, damaging parts of his lung, spleen, and stomach.

"It was pretty horrific, a burning feeling," Olson said.

Banks, who is biracial, claimed he shot his children to spare them the racial prejudice he endured in this city 100 miles north of Philadelphia. Prosecutors noted his history of abusing women and said he had been involved in a custody battle with one of the victims.

His lawyers said mental illness played a role, but the jury rejected an insanity defense.

Many people around Wilkes-Barre say Banks should be executed.

"It's getting sickening," said Joe Mazzillo, 39, whose mother, sister, and two nephews were shot to death. "The kids didn't deserve to die that way. My mother didn't deserve to die that way either."