New York Times

By BOB HERBERT, op-ed 

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.”