2002 George Polk Awards at a Glance

July 8, 2002

Small Town Justice

Part II

"I'm getting ready to say I'm guilty for something I didn't do."

By MICHAEL LUO

AP National Writer

BUTLER, Ala. — District Attorney Bobby Keahey studied the wildly different, ever-changing statements the three mentally retarded murder suspects had made to police. In them, he found a pattern.

At one time or another, all three said they heard a baby cry.

When they weren't denying the baby was born, they all said it was a boy.

And at one time or another, all three mentioned the baby being wrapped in a blue blanket (although in some statements, the blanket was yellow and in others it was blue and yellow and in still others it was a towel.)

What are the chances of all three suspects mentioning those same three things when they were questioned separately? Keahey said in a recent interview. "If you could do that, you could pick three numbers on the lottery." (Police records show, however, that two of the suspects were questioned together at least once and that, between interrogations, two of them talked together about the case in their cells.)

True, there were some holes in the case. No body had been found. There was no physical evidence of a murder, or even of a birth. And five years earlier, Victoria Banks had undergone a tubal ligation, making it unlikely she could have conceived the child she and two others were suspected of killing.

But according to Keahey, he had no reservations about the evidence, no doubt that the three suspects were guilty.

He brought capital murder charges against Victoria Banks, her sister Dianne Tucker, and Banks' estranged husband, Medell. (Nearly two years would pass before the U.S. Supreme Court ruled, last month, that executing retarded people is unconstitutional.)

Victoria Banks, already serving 15 years on an unrelated charge, was sent to the death row unit of Tutwiler State Prison for Women, standard procedure in Alabama for those charged with crimes punishable by execution. She shared the cell block with a woman who had shot a policeman.

On Nov. 27, 2000, Victoria Banks returned to Butler for her murder trial at the Choctaw County Courthouse. The brick, three-story building sits in the middle of town. A statue of a Confederate soldier stands guard on the courthouse lawn. Across the street is the Dixie Gas Station, which displays the rebel flag.

A few years earlier, some townsfolk proposed adding another monument to the courthouse lawn. They wanted to honor a civil rights protester who had been run down by a white driver right in front of the courthouse. The board of county commissioners rejected the idea in a 3-2 vote, all three white members voting "no." One of them said he feared the monument might stir racial tensions.

Now it was the Banks murder case that was making folks uneasy.

"You have a white sheriff, a white D.A., a white judge," said Tommy Campbell, editor and lone reporter at the Choctaw Advocate. "The defendants, they're all black, mentally retarded, poor, indigent."

Victoria Banks entered the courtroom in clothes borrowed from her lawyer's wife. She followed her attorneys' directions, looking at the jurors and keeping her hands folded in her lap.

She stood trial alone, with Medell Banks and Dianne Tucker scheduled to be tried later.

Among the witnesses for the prosecution were the two evangelists who had visited Victoria Banks in jail. The young women were positive she had been pregnant. They came across as smart, honest and convincing.

Would such testimony convince jurors that Victoria Banks had become pregnant despite her tubal ligation — that she was the one woman in 100 whose tubes grow back together after the procedure?

A simple medical test could show for sure whether her tubes were still blocked. If they were, her lawyers thought, she would almost certainly be acquitted. But what if the test showed the tubes had reopened? That might be enough to send her to the electric chair.

Weighing the risks and benefits of learning the truth, defense lawyers decided it was too big a risk to take.

The fourth day of the trial was devoted to tape recordings of Victoria Banks' conflicting denials and confessions, made during the weeks she questioned without the advice of a lawyer. With the jury absent, Circuit Court Judge Harold Crow spent several hours listening to the scratchy audio and then to lawyers debating whether they should be admitted into evidence.

The issue was undecided as court adjourned for the evening. Keahey, the prosecutor, approached Spencer Walker, a defense lawyer, in the hallway and offered a deal:

Banks could plead guilty to manslaughter.

She would be sentenced to 15 years, to be served concurrently with her conviction for helping her abusive boyfriend rape her daughter. That meant she wouldn't have to serve a single additional day in prison.

But, as a condition of the plea agreement, she would have to declare that she had given birth and that her sister and estranged husband had been present.

Walker weighed the odds. Accepting the plea would remove the risk that Victoria Banks might be sentenced to life in prison, or even executed. However, it would undermine Medell Banks' and Dianne Tucker's defense.

Walker didn't represent them. It was Victoria Banks' interest he was duty-bound to protect.

The next day, he explained the offer as best he could to his client. She asked a few tentative questions but didn't seem to agonize. He gave her the weekend to be sure.

On Dec. 4, 2000, Victoria Banks stood before the judge and mumbled her acceptance of the guilty plea.

Several months later, Medell Banks, accompanied by several of his relatives, sat in a small conference room at the courthouse to consider a deal Keahey had for him.

Medell Banks' court-appointed lawyer, Rick Hutchinson, had never handled a capital murder case before. His practice consisted largely of Social Security law. However, the devout Seventh-day Adventist harbored a deep belief in individual rights and social justice.

This case wasn't about justice, he told his client. It was about figuring the odds.

There is little evidence that you committed a crime, Hutchinson said, speaking slowly to help his client understand. Medell Banks had spent 12 years in special education and his IQ was just slightly higher than his wife's.

But juries can be hard to predict, Hutchinson said. There is always a chance you could be found guilty. If that happened, Hutchinson said, you would probably be sentenced to life in prison without parole.

You can remove that risk, the lawyer continued, by accepting the prosecutor's deal and pleading guilty to the lesser charge of manslaughter.

Circuit Court Judge Lee McPhearson would sentence you to no less than 10 years and no more than 15, Hutchinson said. Because of prison overcrowding, well-behaved Alabama inmates typically serve about a third of their sentences before being paroled. And the 22 months you have spent in prison awaiting trail would count as part of your sentence, he told his client.

Hutchinson used a yellow legal pad to do the math. Accept the plea, he told Medell Banks, and you could be out of prison in 18 months, or at worst in 38 months.

The defendant and his family members spent two hours talking about what to do, weighing the odds. Several times the defendant wept, his relatives recalled later.

Medell Banks kept bringing up his son from a previous marriage. If he gambled and lost, he might never see the boy again. It was a risk he just couldn't take.

"I'm getting ready to say I'm guilty for something I didn't do," he said.

His co-defendant, Dianne Tucker, was offered the same deal. After a similar discussion with her lawyer, she made the same decision.

On May 7, 2001, they both stood before Judge McPhearson and pleaded guilty.

The judge rejected the 10-year sentence their lawyers had hoped for and imposed 15 years. The fates of the three mentally retarded defendants, it seemed, was settled.

But Hutchinson, Medell Banks' lawyer, wasn't ready to give up. He had one last card to play.

The medical test that would determine once and for all if Victoria Banks' tubal ligation remained intact was too much of a risk when she was on trial for her life, but there was nothing to lose now.

Last July, Victoria Banks lay on an examination table at the University of Alabama at Birmingham as a doctor injected dye into her uterus.

If the dye spread from her uterus, through the fallopian tubes, to her ovaries — a distance of four inches — it would mean Victoria Banks could conceive and give birth. But if the dye stopped in the tubes, it would mean the tubal ligation was still intact.

On a TV monitor, the dye was a ghostly black against the white of Victoria Banks' internal organs. Three lives depended on this, Hutchinson knew, as he watched the dye slowly fill the uterus and edge into the tubes.