2002 George Polk Awards at a Glance

July 9, 2002

Small Town Justice

Part III

The judge wondered: Where is justice to be found in this confounding case?

By MICHAEL LUO

AP National Writer

BUTLER, Ala. — Rick Hutchinson drove 2_ hours straight from the doctor's office in Birmingham, his excitement building as he barreled down the country roads, past piney woods, logging trucks and pulp mills.

At the end of a dirt road on the edge of town, the Banks clan and their friends had gathered to hear his news. The lawyer stepped from his SUV clutching a set of X-rays.

Victoria Banks' fallopian tubes were blocked, he said; her tubal ligation was still intact.

It was quiet for a moment as the group grasped the importance of this information. Then they the hooted, hugged and danced.

This was all the evidence he needed, Hutchinson thought. The three mentally retarded residents imprisoned for killing a baby must be innocent. There had never even BEEN a baby!

Hutchinson represented only one of the three — Victoria Banks' estranged husband, Medell Banks. He quickly asked a state court to overturn the conviction of his client. Lawyers for the other two, Victoria and her sister Dianne Tucker, didn't join the appeal. Instead, they waited to see what the court would do.

On Aug. 20, 2001, Banks family members and their supporters packed Judge Lee McPhearson's sweltering courtroom on the second floor of the Choctaw County Courthouse.

Dr. Michael Steinkampf, director of Reproductive Endocrinology and Fertility at the University of Alabama at Birmingham was the main witness for the defense. The test he had conducted on Victoria Banks, he said, proved with absolute certainty that she was sterile.

He had no doubt, he said, that the woman had faked her pregnancy.

District Attorney Bobby Keahey argued the test proved nothing of the kind.

Victoria Banks still could have given birth in 1999, he said — although this would have required an improbable chain of events:

After her tubal ligation, the tubes spontaneously repaired themselves (which happens in one out of 100 cases), allowing her to get pregnant. After she gave birth, she acquired a sexually transmitted disease, leading to a pelvic infection that reblocked the fallopian tubes.

Keahey called Dr. Timothy Hughes, a Mobile gynecologist, to the stand to testify that this was all possible. And the prosecutor introduced evidence that Banks had indeed been treated for a sexually transmitted disease a few weeks after the suspected birth date of the baby.

Steinkampf protested. X-ray pictures of the blockage in Victoria Banks' fallopian tubes were not consistent with this scenario, he testified. Blockage caused by disease would occur higher in the tubes. Instead, the X-rays showed the tubes ending close to the uterus, in neat, symmetrical nubs, just as one would expect in a successful tubal ligation.

To Judge McPhearson, this sounded like a draw: two competing theories by two reputable physicians.

But the prosecutor wasn't finished. He called Victoria Banks to the stand.

Did she remember admitting giving birth when she pleaded guilty to manslaughter? Keahey asked her.

"Yeah," said Banks, her voice barely audible.

"Tell the judge if that's the truth or not," the prosecutor said.

"Yeah," she answered.

Keahey sat down and Hutchinson rose to cross examine her.

Why had she accepted the plea agreement, he asked, his tone soothing, fatherly.

"I can't remember," Banks said.

You were afraid of the electric chair, weren't you? Hutchinson said.

Banks hesitated, then said: "I don't know."

"For your sake, and the sake of this court, we all need to know the truth," Hutchinson said. "Did you have a baby in the summer of '99?"

Banks did not respond.

"And was Medell and Dianne present?"

Still, she was silent.

Judge McPhearson told her she needed to answer.

"No," Banks said.

"Pardon?" McPhearson said.

"No," Banks said. "I didn't."

For a moment, the courtroom was still.

Then Keahey rose.

Hadn't Banks told her doctor that she was pregnant, he asked.

She admitted that she had.

And hadn't she told the same thing to Sheriff Donald Lolley?

"Yes," she said.

And her cellmate, Connie James?

"Yes," she said.

"Were you pregnant when Dr. Hensleigh saw you?" Keahey asked.

Banks paused a moment, then said: "No."

Soon, the hearing was over, leaving Judge McPhearson to ponder where justice was to be found in this confounding case.

He could give no weight to Banks' testimony, he thought. She never told the same story twice. But Steinkampf's test — that was significant new evidence.

To throw out the conviction, the judge had to find that the new evidence "probably" would have resulted in a different verdict. Was the test enough to overcome the witnesses who said Victoria Banks had looked pregnant, the prison doctor who was convinced she had been?

The judge, as he admitted later, was torn.

On Sept. 28, 2001, a month after the hearing, McPhearson gathered the attorneys in his chambers to announce his ruling. His first words:

"None of you are going to be happy with this."

He could not find that Steinkampf's test probably would have resulted in a different verdict, only that it might have, the judge said. So Medell Banks' conviction would stand.

However, he said, he was reducing Medell Banks' sentence to 28 months followed by five years probation. Having already served two years, he would soon be a free man.

Months later, McPhearson explained his thinking to The Associated Press.

"Under Alabama law, I'm not so sure that the defense met their burden," he said, "but you've got a situation where you can't ignore that test."

How important was it?

"There could be an innocent person in jail," he said.

Even if Medell Banks is innocent, the judge said, overturning his verdict might not be "the proper thing to do." Keahey would just retry him, exposing the retarded man once again to a risk of life without parole.

Unable to determine the truth, Judge McPhearson did what other participants in the case had done before him. He weighed the risks and benefits, figured the odds.

The judge thought his decision would bring the two-year-old Medell Banks case to a reasonable conclusion. It did not.

Seeking complete vindication for his client, Hutchinson went to the state Court of Appeals on Oct. 5, 2001, asking them to overturn the verdict and grant a new trial.

Keahey responded by appealing the sentence reduction, noting that state law gives a judge only 60 days to reduce a sentence after it is imposed. When McPhearson ruled, that deadline had expired.

The Court of Appeals, which has not yet ruled on the request for a new trial, quickly agreed with the prosecutor about the sentence reduction, reinstating the 15-year sentence late last November.

Medell Banks and his two co-defendants were back where they started, but now they had a small army of supporters on their side. A band of their friends and neighbors began meeting on Sundays after service at a small Baptist church on the edge of town, where several of Medell Banks' relatives worship.

Led by Carrie Johnson, a 73-year-old retired school teacher and the mother of the young civil rights worker run down 30 years ago near the courthouse, the group held a press conference and started a legal fund. A petition was circulated and fliers were posted around town.

The Equal Justice Initiative, a civil rights group in Montgomery that usually limits itself to death penalty cases, has taken up Tucker's cause. The group is arguing that she is innocent, that she had incompetent legal counsel, that prosecutors withheld evidence.

Today, Medell Banks has completed the substance abuse program at the Draper Correctional Facility. Hutchinson attended his graduation ceremony in May.

Victoria Banks is taking GED classes at the Julia Tutwiler Prison for Women. Her sister, Dianne Tucker, couldn't pass the qualifying test for the program, and is working as a prison housekeeper. Their mother died recently, and their father, suffering from diabetes and cancer, is near death.

As for Keahey, the district attorney, he isn't done with Victoria Banks yet.

She lied when she told Judge McPhearson she had not been pregnant, Keahey says. He has brought a new charge against her — perjury.

To folks in town who think this seems vindictive, he says this:

"I'm not going to let it lie until they do."

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EDITOR'S NOTE — AP correspondent Garry Mitchell in Mobile contributed to this story.