The Choctaw 3

by

Hans Sherrer.

Editor, Justice Denied.









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 Bell Banks was in the Choctaw County jail in Butner, Alabama, a town of 2,000. She decided to feign pregnancy as a ploy to get released. She was examned by Dr. Roshdy Habib, who found no sign of pregnancy. A second doctor heard a fetal heart beat. Victoria did not permit either to do a pelvic exam. No other tests were performed, and nothing in her appearance or behavior indicated pregnancy. She was released on bond in May 1999, after threatening to bring suit for lack of prenatal care.



On August 3, 1999 the Choctaw County sheriff encountered Victoria and asked about the baby that should have been born in June, Victoria spoke of a miscarriage. The Sheriff escorted her to the office of the second doctor to visit the jail and who found a trace of a heartbeat.



This second examination determined that there was no evidence of pregnancy. Nevertheless, three days later Victoria was taken into custody and made to explain the "missing" baby.



The police questioned Victoria, her estranged husband of several years, Medell Banks Jr., and her sister Dianne Tucker. All three are poor, black, and mentally challenged. Victoria has an IQ of 40, Medell - 57.

Victoria Bell Banks (l), her estranged husband, Medell Banks Jr. (m), and her sister, Dianne Bell Tucker (r)

At first, the three told the police Victoria had pretended to be pregnant as a ruse to get out of jail. She could not have been pregnant, having had her tubes were tied in 1995. However, after being questioned for extended periods of time, without access to counsel, all confessed to participating in the murder of the "missing" child.



Based on these "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 execution in the electric chair, all three were eventually pressured into pleading guilty to manslaughter( with lawyers consent). 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.



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.After languishing in jail for almost two years, Medell Banks Jr. entered a "best interest" (Alford Plea?))guilty plea on May 7, 2001. Still, he adamantly told Circuit Court Judge Lee McPhearson, as he had told anyone who would listen, that he was innocent:



Senences of Banks and Tucker here.



On June 25, 2001, Judge McPhearson sentenced Medell Banks to 15 years in prison, the same sentence given to Victoria Banks and Dianne Tucker.



. Victoria (l) and her sister Dianne (r) in the prison library.







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. He established with a scientific certainty that Victoria's 1995 tubal ligation had been effective and it was physically impossible for her to have become pregnant.

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.



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 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.

. 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:

"that a manifest injustice has occurred in this case." Banks v. State, No. CR-01-0310 (Ala.Crim.App. 08/09/2002) (emphasis added.)

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."







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.



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 prison

Rick 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.





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.