New York Times


If you are going to charge three defendants with capital murder for killing a newborn, do you have an obligation to show that the baby really was killed?

Not in Alabama, you don’t.

Do you need to show, somehow, that the baby ever existed?

Not in Alabama. Not if the defendants are poor, black and retarded.

“I mean this thing is just unbelievable,” said Rick Hutchinson, a lawyer from the tiny Choctaw County town of Butler, whose client, Medell Banks Jr., is in prison for killing the hypothetical infant.

Back in 1999 Mr. Banks’s estranged wife, Victoria, was in jail on an unrelated charge when she came up with the idea of claiming she was pregnant, hoping that would get her released, said Mr. Hutchinson. Both Medell and Victoria Banks are retarded, Mr. Hutchinson said, and they had separated in the mid-90’s.

Victoria Banks was seen by a doctor but would not let him do a pelvic exam. The doctor said he did not think she was pregnant. She was then seen by another doctor, who reported hearing a fetal heart tone but conducted no further tests.

That was enough to get Ms. Banks released on bond in May 1999. The following August she was taken back into custody. She did not have a baby and there was no evidence at all that she had given birth.

Had the authorities been duped? Where was the baby?

What the authorities didn’t know, and wouldn’t find out until later, was that in 1995 Ms. Banks had undergone a bilateral tubal ligation — a sterilization procedure in which the fallopian tubes are effectively blocked so that conception cannot occur.

The baffled and increasingly angry investigators began an intense period of interrogation. Medell Banks was brought in, and so was Victoria’s sister, Dianne Tucker, who is also retarded. Mr. Banks was kept in custody and questioned over many days without the benefit of counsel.

By the time the questioning had concluded, all three individuals had confessed. Yes, they said, a baby had been born and they had killed it.

Mr. Hutchinson, the lawyer, said he firmly believed that the interrogators “planted that idea in the minds of these mentally retarded people.”

All three were arrested and charged with capital murder. The penalty options upon conviction would be execution or life in prison without parole.

I asked the district attorney, Robert Keahey, what evidence he had that a baby had really been born and killed. He said, “Well, they all told us that.”

I asked if that was all.

He said, “Well, the baby wasn’t inside of her. It was inside of her when she left the jail, and when they said they killed it, it wasn’t inside her. So that’s pretty good evidence to us.”

There’s nothing like a capital murder charge to make you start looking around for an escape route. Incredibly, all three defendants ended up pleading guilty to manslaughter for the death of the hypothetical baby.

But Mr. Banks continued to insist he was innocent, and his court-appointed lawyers, Mr. Hutchinson and a co-counsel, Jim Evans, would not let the case go. They raised enough money from churches and other charitable sources to have a medical test done on Victoria Banks by a noted fertility expert, Dr. Michael Steinkampf of the University of Alabama School of Medicine.

Dr. Steinkampf determined that the tubal ligation — which all parties agreed had been performed in 1995 — had been effective, and that in his opinion Ms. Banks could not have become pregnant.

Last week the Alabama Court of Criminal Appeals ruled that “a manifest injustice” had occurred in this case and threw out Medell Banks’s guilty plea. He is still in prison, however, serving his 15-year sentence and awaiting further court action.

(Victoria Banks is also serving 15 years, concurrent with a sentence in a separate case. Dianne Tucker has been released from prison but has given up all rights to appeal her manslaughter plea.)

If Mr. Keahey has any say (and he does), Medell Banks will remain in prison. The district attorney plans to appeal last week’s ruling to the Alabama Supreme Court.

I asked if there was a chance, in light of the latest evidence and the court’s ruling, that he would consider dropping the charges against Mr. Banks. He replied, “Not in this lifetime.”