2002 George Polk Awards at a Glance
July 7, 2002
Small Town Justice
The accused was mentally retarded; the victim may never have existed
By MICHAEL LUO
AP National Writer
BUTLER, Ala. Victoria Banks' court-appointed lawyers explained the prosecution's offer to her as best as they could, using the simplest language. She sat quietly as they laid out her options across a mahogany law library table.
There are two choices, the lawyers said. We can take the case to the jury, or we can accept a plea bargain.
There's a good chance we can win, the lawyers said. The police never found a body. We can argue that you, your sister and your estranged husband were confused by police questioning that the confessions were contradictory and coerced.
But something could go wrong, they continued. You might be sent to prison for the rest of your life. Or even die in the electric chair.
As they spoke, the lawyers couldn't be sure how much the mentally retarded woman understood.
A trial is all or nothing. The risk is enormous for both sides.
A plea bargain removes risk, replacing it with a compromise that neither side may like but that both can accept.
We like to think that justice is about finding the truth, but when defense lawyers and prosecutors weigh whether to risk everything or play it safe, something essential can be lost.
Did Victoria Banks really kill her baby?
Can we even be sure it was ever born?
When the defendant is retarded, the truth can be particularly hard to find.
Banks was in the Choctaw County Jail, awaiting trial on another charge, when she started telling people she was pregnant.
She'd been arrested in October 1998, after teachers found bruises on her 11-year-old daughter. The girl had been raped by her mother's new boyfriend, George Bonner. The way police figured it, he told Banks she wasn't satisfying him and she let him have her child.
At 27 years old, the poor, black mother seemed like a child herself quiet, shy, easily manipulated, prone to dissolving into giggles. She had an IQ of 40, had dropped out of special education in the ninth grade to have the first of her six children, was cowed by an abusive boyfriend.
Experts in retardation and criminal justice disagree about whether people such as Banks, who suffer from flawed judgment and poor impulse control, should be held fully culpable for crimes they may commit. Experts also ask whether reasoning difficulties put retarded defendants at an unfair disadvantage in dealing with police.
The debate reached a milestone last month when the U.S. Supreme Court outlawed the death sentence for retarded people. Executing them, the court decided, neither appropriately punishes the criminal nor serves as a deterrent.
In early February of 1999, after telling guards she'd been missing her period, Banks was taken to Dr. Roshdy Habib, 74, the jail doctor for two decades. Banks told Habib she was six months pregnant.
Habib wanted to do a pelvic exam, but Banks refused. The doctor examined her abdomen but saw no swelling. When he asked about a scar on her belly, Banks explained she'd had her tubes tied in 1995.
Fallopian tubes can spontaneously reattach after a tubal ligation, but Habib knew it happens rarely in just one out of 100 cases. He wrote his conclusion in his records: Banks was faking pregnancy to try to get out of jail.
But Banks kept telling people she was pregnant, and after a while, some inmates thought the short, stocky woman was starting to look it. "She was showing," said Jonathan Rodgers, who was serving time for burglary.
A pair of church evangelists, who held weekly services at the jail, saw Banks' body changing, too. They prayed with her for the health of the baby.
Around that time, Habib retired, and Katherine Hensleigh, one of four doctors left in Butler, took over Banks' care. Where Habib saw fakery, Hensleigh saw pregnancy.
She measured Banks' abdomen in February and again in March, and found it consistent with a pregnancy of five or six months. She attached a heart monitor to Banks' abdomen and picked up a rhythmic sound distinct from the mother's heartbeat.
"It wasn't difficult to hear," she said later, adding that nurses and Banks heard the fetal heartbeat too.
Sheriff Donald Lolley did not regard this as good news. Lolley, who declined to be interviewed for this story but talked to the AP earlier about the case, felt his jail was no place for a pregnant woman. Besides, those around him say, he didn't want Choctaw County footing the obstetrics bill.
Lolley saw to it that Banks' bond was lowered so her mother could bail her out.
On May 14, 1999, Banks walked out of jail and back into Butler, a town with one diner, one motel and a Texaco gas station that serves catfish and chicken-fried steak all nestled in the woods of western Alabama. It's home to 1,952 people, roughly split between black and white, with both races holding elected offices. The country club recently admitted its first black members.
Banks got a job at the chicken plant, more than an hour's bus ride across the Mississippi state line. That's where common folk in Butler go if they can't get work close by at the Georgia Pacific paper mill.
She moved into a friend's trailer, set on concrete blocks at the bottom of a dead-end dirt road on the outskirts of town. It's a neighborhood of trailers, shacks and hog pens, where her estranged husband, Medell Banks, liked to hang out all day drinking beer.
It was a couple of months later, in late July, that Sheriff Lolley happened to look out his office window and spot Banks strolling from Bill's Dollar Store across the street.
Her belly was gone.
On August 3, 1999, Banks sat across from Lolley in a cramped, dimly lit office with his old campaign posters hung on the wall.
What happened to the baby? the sheriff asked.
Miscarriage, Banks replied.
Lolley didn't believe her.
There isn't much crime in Butler, but in a quarter century as sheriff, Lolley had seen a few big cases. This might be one of the big ones capital murder.
Lolley held Banks, and also picked up two of her relatives: Banks' estranged husband, Medell, and her sister, Dianne Tucker. Like Victoria Banks, both are mentally retarded.
Over five days, Lolley and detectives from the Alabama Bureau of Investigation questioned them, often late into the night, starting up again the next morning. Between interrogations, the three waited in their cells, without lawyers to advise them.
Investigators turned on a tape recorder when they thought they could get something useful. What was said when the tape was off isn't known for sure.
Victoria Banks says investigators told her, again and again, "You goin' to the 'lectric chair," but the threat isn't on tape.
Investigators did bluff, according to tape transcripts. "There is DNA evidence," Lolley told Medell Banks at one point although there wasn't.
Threats and bluffs are acceptable tactics in police interrogations. However, experts such as Chris Slobogin, a University of Florida law professor, say police often underestimate how easily retarded suspects become confused, how suggestible they are, how eager most are to please.
As the questioning continued, a contradictory set of stories emerged. The three suspects were either terribly confused or bad liars. Nearly every account they gave, the tape transcripts and police statements show, differed from the last.
Victoria Banks was the first to stop insisting there had been a miscarriage. She gave birth at Tucker's house in neighboring Halsell, she said, but didn't know if the baby was alive or dead. Tucker's husband, she said, wrapped the baby in a blue blanket and threw it in the garbage.
Soon, she changed her story, saying her sister smothered the infant.
Two days later, she told an entirely different story: She gave birth in an abandoned trailer near where she'd been living. Her estranged husband, Medell, cut the cord, wrapped the infant in a blue towel or blanket, said not to worry about the "damn baby" and walked out with it.
Why, then, had she said her sister had killed the baby? police asked.
"Because I thought she was there," Victoria Banks said. "I had pictured in my mind that she was there, and then I stopped and thought last night, it wasn't her."
In various accounts, Victoria Banks said:
That she very much wanted the baby and that she didn't want it because the father was the man who had raped her daughter.
That she watched the baby being born and that she passed out and didn't remember the birth.
That her sister, Diane Tucker, helped with the delivery and that Tucker wasn't there at all.
Soon, Tucker was talking too. The baby was born at her home, she said. She suffocated it with a yellow towel and went with her husband to bury it in a ditch. Before long, she changed part of her story, saying she and her husband left the body for the coyotes and snakes.
By the third day of questioning, Tucker was saying the baby wasn't born at her place at all. The birth occurred in an abandoned trailer, she said. Medell Banks took the baby away and returned an hour later empty handed. She'd lied before, she said, because she was afraid of Medell.
Medell Banks denied knowing anything about the baby. Police tried baiting him, suggesting he was angry with his estranged wife and her boyfriend about the pregnancy. But he remained steadfast.
On the day police thought the baby was delivered, he was drunk as usual, Medell Banks said. He couldn't remember anything.
At one point, police asked if he had heard a baby cry, and Medell Banks agreed that he had. But moments later, he denied even being present. Victoria's story the one about him cutting the cord couldn't be true, he said, because he wouldn't know how to do that.
Police tried another approach; they took Medell Banks down by the trailer and asked him to help find the body. Nothing came of it.
Investigators combed the area for days, tramping through swampy woods with a cadaver dog. They picked through trash in the trailer. They also looked in Halsell, in and around Tucker's home.
But they found no body.
Investigators carted away sofa cushions, a mattress, sheets and a shovel for analysis, but lab work turned up no blood or other physical evidence of a murder or even of a birth.
No one in any of the nearby trailers came forward to say they had seen or heard a baby.
Still, police continued to hold the three suspects.
About two weeks after his arrest, still without a lawyer, Medell Banks told the sheriff a new story, according to police statements. Tucker killed the baby and asked him to get rid of it, he said, so he put it in a hole across the road.
But later, he returned to denying knowing anything at all.
At this point, little seemed certain.
Had Victoria Banks faked her pregnancy to get out of jail, as one doctor thought?
Could she have had a hysterical, or "false" pregnancy?
Had she overcome 100-1 odds and become pregnant despite her tubal ligation, as another doctor thought?
If so, might she have miscarried?
Might the child have been born dead?
Or was the child born alive and then murdered?
And if so, by whom?
It fell to District Attorney Bobby Keahey, elected straight from law school 15 years earlier, to make sense of it all.
Keahey had no body, no physical evidence, no consistent accounts from witnesses and no doubt about what to do.