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An important UPDATE to the Choctaw Three saga follows the main report!
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The Tragedy of the Choctaw Three:
Medell Banks Jrs.’ Conviction for Killing A Non-Existent Child Is Thrown Out As A “Manifest Injustice”By Hans Sherrer, JD Special Correspondent
On August 9, 2002, The Alabama Court of Appeals threw out Medell Banks Jrs.’ conviction for killing a child that never existed. Medell is one of the Choctaw Three who confessed to the murder of a non-existent child after days of interrogation without being allowed access to a lawyer. The appeals court ruled “a manifest injustice has occurred in this case.”There are many known cases of wrongful conviction for the murder of a victim whose body was never found, because the person was in fact still living.Nebraska's governor commemorated one such error on March 25, 1987 by posthumously pardoning William Jackson Marion on the 100th anniversary of his hanging for the murder of a man who turned up alive four years later. In another notorious case, Antonio Rivera and Merla Walpole's protestations of innocence fell on deaf ears when they were convicted in 1975 of killing their 3 year old daughter ten years earlier. While imprisoned and awaiting a retrial, their then 13 year-old daughter turned up alive and well in San Francisco.
It is undeniably outrageous for a person to be convicted of murdering someone who is alive, but a case in Choctaw County, Alabama goes far beyond that injustice. Not content with the mere crudity of prosecuting a person for the murder of someone who is perfectly healthy -- the great State of Alabama indicted and prosecuted two women and a man for the capital murder of a child that never existed.
The horrific saga of the Choctaw Three -- Victoria Bell Banks, Medell Banks Jr. and Dianne Bell Tucker -- began in February 1999. Victoria was in the Choctaw County jail in Butner, Alabama, a town of 2,000, when she decided to feign being pregnant as a ploy to get released. The first doctor that examined her, Dr. Roshdy Habib, found no sign of pregnancy. The second doctor who examined her claimed to have heard a fetal heart beat. Victoria didn't permit either doctor to do a pelvic exam, no tests were performed on her, and there was nothing in her physical appearance or behavior to indicate she was pregnant. The second doctor's cursory and unsubstantiated diagnose was sufficient for Victoria to be released on bond in May 1999, after she threatened to sue the jail for failing to provide prenatal care.
On August 3, 1999 the Choctaw County sheriff encountered Victoria and asked about the baby that would have been born in June based on what she said while in jail. When Victoria told him she had a miscarriage, the Sheriff escorted her to the office of the second doctor that had seen her in the county jail. Victoria was examined and it was determined that there was no evidence she had ever been pregnant.
Three days later Victoria was taken into custody and the police wanted to know what happened to the "missing" baby that had been the reason she was released on bond in May. The police questioned Victoria, Medell Banks Jr., her husband she had been separated from for several years, and her sister Dianne Tucker. All three are poor, black, and for lack of a more politically correct word, have been described as mentally retarded. Victoria has an IQ of 40 and Medell has an IQ of 57.
Victoria Bell Banks (l), her estranged husband, Medell Banks Jr. (m), and her sister, Dianne Bell Tucker (r)The three told the police Victoria had pretended to be pregnant as a ruse to get out of jail, and that she couldn't have been pregnant because her tubes were tied in 1995. However, after being questioned for extended periods of time without being allowed to consult with a lawyer, they all confessed to participating in the killing of the "missing" child. Based on their "confessions" the three were indicted for capital murder on September 15, 1999: a charge that carries a penalty of either death or life in prison without parole. Facing the specter of being executed in the electric chair if convicted after a trial, all three were eventually pressured into pleading guilty to manslaughter. Victoria only did so after her trial had begun in November 2000, and Medell and Dianne did so six months later as their trial dates approached.
The outrageousness of the circumstances surrounding the alleged "confessions" of the Choctaw Three is hinted at by the fact a tape recording the prosecutor claimed contained a waiver by Medell of his right to an attorney, contains nothing comprehensible except his clear request for the police to let him go home. The coercion involved in the false confessions by the three Choctaw defendants is also indicated by the fact that Medell, in spite of his mental limitations, only confessed under the duress of intense and prolonged interrogation for days without the aid of consulting with a lawyer.
After languishing in jail for almost two years, Medell Banks Jr. entered a "best interest" guilty plea on May 7, 2001. However, Medell didn't go quietly into the night when he entered the guilty plea that would send him into the hell of Alabama's third-world prison system. He told Circuit Court Judge Lee McPhearson, as he had told anyone who would listen, that he was innocent:
"Your Honor, I don't think I have been treated fairly. I got a son out there I love, I want to be with the rest of my life, do what I can to be with him, show him all the love, respect I can. For this here, I don't think I been treated fairly.On June 25, 2001, Judge McPhearson sentenced Medell Banks to 15 years in prison, the same sentence given to Victoria Banks and Dianne Tucker. The same day Medell was sentenced, the judge granted a motion by his lawyer for a medical examination of Victoria she had agreed in advance to undergo. Although Medell's lawyer had previously obtained X-rays that showed Victoria's fallopian tubes were sealed, an examination would prove with a scientific certainty she couldn't become pregnant naturally. That finding would constitute medical proof the Choctaw Three were innocent of killing a child that had never existed.And it hurts me in my heart to get time for something I didn't do. I wasn't there. I don't know nothing about nothing. (R. 83.)"
Victoria (l) and her sister Dianne (r) in the prison library.Medell's court appointed lawyers, Rick Hutchinson and Jim Evans had been inspired to go the extra mile in fighting for him by his unwavering proclamations of innocence. They realized, however, that Medell needed more to prove his innocence than the lack of any physical evidence Victoria had a baby, including no hospital records, no doctor records, no one who ever saw a baby, and the fact that she had a tubal ligation in 1995. Sympathetic townspeople aided Medell's lawyers to raise money from charities and church collections to pay for Victoria's medical tests. Nationally renowned fertility expert Dr. Michael P. Steinkampf was enlisted to conduct the examination. The author of numerous articles for professional publications, and the Director of Reproductive Endocrinology and Fertility at the University of Alabama School of Medicine in Birmingham, Dr. Steinkampf conducted his examination of Victoria on July 12, 2001. What he found not only supported the innocence of all three defendants, but established it with a scientific certainty: Victoria's 1995 tubal ligation had been effective and it was physically impossible for her to have become pregnant. After the examination Dr. Steinkampf said Victoria was sterile and "it was impossible" for her to have naturally conceived a child. Medell had been proven right: all three defendants were the innocent victims of a wrongful prosecution for the killing of a child that never existed.
When interviewed, Dr. Roshdy Habib, the doctor who first examined Victoria Banks at the Choctaw County jail in February 1999, concurred with Dr. Steinkampf's conclusion: "The evidence is very clear that she was not pregnant." He also said that given her tubal ligation, she could only have been impregnated "by the Holy Spirit."
Relying heavily on Dr. Steinkampf's conclusion that Victoria Banks' bilateral tubal ligation prevented her from becoming pregnant, Medell's attorneys filed a motion on July 16, 2001 to withdraw his guilty plea, and on July 18, 2001 the motion was amended to include a request for a "new" trial. During the evidentiary hearing that followed in August 2001, the doctor that had performed Victoria's tubal ligation agreed with Dr. Steinkampf's conclusions. He further testified that absent a reversal of the surgery, the only way she could become pregnant would be by vitro fertilization. The prosecutor did not even suggest that Victoria had undergone vitro fertilization.
On September 28, 2001 Judge McPhearson rejected Medell's motions to withdraw his guilty plea, for a new trial, and for the charges be dismissed. The judge claimed that the only basis for doing so would be if Medell had presented new evidence at the hearing that cast doubt on the veracity of the facts underlying his conviction (that was solely based on his guilty plea). The judge expressed the opinion Dr. Steinkampf's testimony that Victoria could not have become pregnant or had a baby would not have swayed a jury to acquit Medell. In making his ruling, the judge totally disregarded that the existence of the alleged child was not supported by any physical, medical, or scientific evidence. Medell appealed the denial of his motions to the Alabama Court of Appeals. On August 9, 2002 that court reversed Judge McPhearson's ruling and granted Medell's motion to withdraw his guilty plea. In making its ruling that had the effect of voiding Medell's conviction, the Court stated:
"Therefore, after evaluating the circumstances of this case in the Heaton framework and any other relevant information in the record that would indicate whether a manifest injustice had occurred in this case, we hold that a manifest injustice has occurred in this case." Banks v. State, No. CR-01-0310 (Ala.Crim.App. 08/09/2002) (emphasis added.)In his concurring opinion, Justice Wise wrote: "In my opinion, the facts of this case present a classic example of a manifest injustice." (emphasis added.)The Appeals Court's order meant the prosecutor had the choices of taking Medell to trial, dropping the charges and releasing him, or appealing the ruling. Given the facts of the case it is remarkable that Choctaw County's prosecutor not only chose to appeal, but he stated his intention to try Medell for murder in spite of admitting in an August 2002 interview with NY Times columnist Bob Herbert: "We have no physical evidence." When asked by Mr. Herbert what evidence of any kind he had that Victoria Banks had a baby in June 1999, the prosecutor replied: "Well, they all told us that." In other words, the prosecutor's case against Medell hinges on confessions extracted after days of intense interrogations during which the three mentally retarded defendants were denied the benefit of consulting with lawyers. Medell's lawyer Rick Hutchinson has openly expressed the opinion that the police took advantage of the Choctaw Three to plant false confessions "in the minds of these mentally retarded people."
So in spite of being innocent of committing any crime and having his prosecution described by the Alabama Court of Appeals as a "manifest injustice," Medell Banks Jr. continues to be incarcerated in an Alabama prison because of the vindictiveness of a petty small town prosecutor luxuriating in the limelight of national press attention for the one and only time it will occur in his lifetime. The prosecutor is so enamored of his own power that he filed perjury charges against Victoria for telling Judge McPhearson that she hadn't been pregnant, even though her statement is supported by all the physical and scientific evidence in the case. However, Medell inched closer to being freed on September 20th when the Alabama Court of Appeals refused to reconsider its decision of August 9, 2002. In another display of his megalomania, the prosecutor announced he would appeal the Court's ruling to the Alabama Supreme Court.
Medell's determination is shown by his choice to remain in prison and continue pursuing his vindication when he turned down the same deal that enabled Dianne Tucker to be released from prison on July 17, 2002. She was released after accepting the prosecutor's deal for the judge to modify her sentence to time served, in exchange for waiving her right to pursue any further appeals in her case. Dianne was pressured into accepting that deal by the uncertainty of the appeals process, the length of time it takes, and her need to be with her two daughters.
Dianne Bell Tucker on her bunk in prisonRick Hutchinson expressed the feeling of many people when he said: "I mean this thing is just unbelievable." There was a time when the prosecution of the Choctaw Three for killing a non- existent child would have been unbelievable. However, unconscionable injustices are occurring with such monotonous regularity in this country that they can be described as having become the norm. It can only be hoped that Medell Banks Jrs.' pursuit of vindication will eventually lead to the official exoneration of him and his two co-defendants of any criminal wrongdoing related to the death of a phantom child that is only a figment of the prosecutor's imagination.
Sources:
Banks v. State, No. CR-01-0310 (Ala.Crim.App. 08/09/2002)
An Imaginary Homicide, Bob Herbert, NY Times, Op-Ed section, August 15, 2002
When Justice Is Mocked, Bob Herbert, NY Times, Op-Ed section, August 19, 2002
Three in Prison for Killing a Baby Who May Have Never Existed, Garry Mitchell (AP), Salt Lake City Tribune, March 3, 2002.
Justice In A Small Town: X-ray of Victoria Banks shows there had never been a baby, Part Three, Michael Luo (AP National Writer), Amarillo Globe-News, Amarillo, TX, July 13, 2002.
Woman accused in baby death case released from prison after judge modifies sentence, Chatom, AL (AP), North County Times, Escondido, CA, July 18, 2002.
Appeals Court Endorses Ruling, Wade Phillips (reporter), Montgomery, AL, WTOK-TV-11, September 20, 2002. At: http://www.wtok.com/home/headlines/112367.html.
3 in Prison for baby’s death – but did it exist?, Associated Press, Arizona Republic, March 1, 2002.
Update!
The Choctaw Three Saga Continues - Medell Banks Jr. Walks Free When The Murder Charge Against Him Is Dismissed!
By Hans Sherrer, JD Special Correspondent
At 5pm on Friday, January 10, 2003, Medell Banks Jr. walked out of the Choctaw County Jail a free man. One of the Choctaw Three, Medell's release capped an intense week of pretrial hearings that preceded the start of jury selection in his capital murder trial for killing a non-existent child. He was released an hour after Circuit Judge Harold Crow accepted Medell's "best interest" plea of tampering with unspecified physical evidence, and the murder charge against him was dismissed.
That plea agreement was as strange as every other aspect of Medell's case. There was no physical evidence for Medell to have tampered with, because the prosecutor admitted to New York Times columnist Bob Herbert during an August 2002 interview: "We have no physical evidence." [1] That is confirmed by the fact the misdemeanor charge "was not even remotely connected with [Medell] causing the death or participating in the death" of the phantom child. [2] In actuality the tampering charge was as much a fabrication as the capital murder charge that was dismissed, but however undeserved, the prosecution wanted at least an ounce of Medell's flesh. Rick Hutchinson, Medell's lead lawyer, recognized the prosecutors had to be thrown a bone of some sort, when he said of the deal that allowed Medell to immediately walk out of jail after 3-1/2 years, "It couldn't have been any better." [3]
During the hearings leading up to Medell's sudden release, "Alabama Bureau of Investigation agents and Choctaw County Sheriff Donald Lolley, whose work put Banks behind bars, testified that they lied to him to elicit a confession." [4] Furthermore, interrogation tapes played in court during the hearings showed that even though no attorney was present in his behalf, Medell unwaveringly insisted over and over, hour after hour, "that he knew nothing about a dead baby." [5] It wasn't until he was totally exhausted late on the last night of his interrogation that he agreed with his interrogators suggestion that "he heard a baby cry, then said he was tired and wanted to go home." [6]
So Medell never admitted to killing or even seeing a child. It was while in a state of exhaustion from many hours of intense interrogation that he merely agreed with his interrogators suggestion that he heard a "baby cry." It was for that innocuous admission under a level of almost unimaginable stress that the State of Alabama sought to execute Medell Banks Jr. Not only did Medell's interrogator's plant the idea in his mind when he was in a weakened state that he heard cries of the non- existent baby, but they pressured him by lying that they had DNA evidence against him. Furthermore, during the week of hearings, Medell's attorneys "presented psychologists and other expert witnesses who testified that law officer's wrongly interrogated Banks, and that his mental disability prevented him from understanding his right against self-incrimination." [7]
Months of critical national publicity by the Associated Press, the New York Times and Dateline NBC had failed to stop the prosecutor's drive to execute Medell, but the accumulation of damning evidence aired in public during the week of hearings caused the prosecution to suddenly agree to stop his trial by any face saving way it could.
The prosecution was so panicked to find a way, any way out of the case without going to trial after the shocking revelations by their witnesses during the week of hearings, that the plea agreement contained no limitation on Medell to recovering damages from any person or governmental entity he is able to sue for their role in causing him to spend 41 months and 5 days imprisoned for allegedly killing a child that never existed. The prosecution tried to include that limitation, but caved when it realized Medell would go to trial and be acquitted before agreeing to it. As Hutchinson told reporters after Medell's release, "At no time would we waive our right to bring civil charges against anybody for the way Medell has been mistreated during all of this." [8]
Medell's release capped an almost evangelical campaign by his court-appointed attorneys, particularly Rick Hutchinson, to expose the outrageousness of his wrongful conviction. He garnered national publicity for Medell's case, and he printed yellow and black FREE MEDELL bumper stickers and T-shirts that were distributed around Choctaw County. Medell's other court appointed lawyer was James Evans, a former prosecutor, and Jim Sears, an attorney specializing in mental retardation who donated his time in the months leading up to Medell's January trial date.
Medell's family members and other supporters were present in the courtroom all week as the wrongdoing of the police and prosecutors in Medell's case was exposed for all the world to see. There was never a murder case against Medell Banks Jr., and the prosecutor tacitly admitted that when he agreed on the last court day before the start of Medell's trial to drop the charge against him from capital murder for which he could have been executed, to a minor misdemeanor charge that resulted in his immediate and unconditional release.
When her son was freed Medell's mother said, "I'm just happy and thanking everybody for all this help." [9] In his first public comment after leaving the jail, Medell Banks Jr. said: "I'd like to thank God, I'd like to thank Mr. Hutchinson, Mr. Evans, my family and everybody for believing in me. I thank God I'm free." [10]
Postscript
As this is written, the manslaughter convictions of Victoria Bell Banks and Dianne Bell Tucker still stand. Their convictions are just as outrageous as that of Medell Banks Jr., and it is hoped that a competent and crusading attorney will take up their cause so their wrongful convictions will be cleared from their record. It is an embarrassment to every law enforcement officer, prosecutor, judge and resident in Alabama for coercive tactics straight out of Stalinist Russia to have been used to extract fabricated guilty pleas from two innocent women for participating in the murder of a child that only exists in the mind of a prosecutor who stooped to the level of taking advantage of their mental state and insecurities, to gain his 15 minutes of an infamy that will be his legacy until the end of time.
ENDNOTES
[1] An Imaginary Homicide, Bob Herbert, NY Times, Op-Ed section, August 15, 2002, and When Justice Is Mocked, Bob Herbert, NY Times, Op-Ed section, August 19, 2002.
[2] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
[3] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
[4] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
[5] DA: Banks Release is Victory for Prosecution, Carla Crowder (staff), The Birmingham News, January 14, 2003.
[6] DA: Banks Release is Victory for Prosecution, Carla Crowder (staff), The Birmingham News, January 14, 2003.
[7] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
[8] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
[9] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
[10] Medell Banks set free in baby case, Carla Crowder (staff), The Birmingham News, January 11, 2003.
