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Juggling Justice in a Confounding Case

Courts: Victoria Banks had said she was pregnant, even though she'd been sterilized, and had pleaded guilty to manslaughter. A fertility test could clear her.

July 21, 2002|MICHAEL LUO | ASSOCIATED PRESS WRITER

Last in a weekly series

BUTLER, Ala.--Rick Hutchinson drove two 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 sport utility vehicle clutching a set of X-rays.

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

It was quiet for a moment as the group grasped the importance of this information. Then they 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 court to overturn his client's conviction. Lawyers for the other two, Victoria and her sister Dianne Tucker, didn't join the appeal. 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.

Dist. Atty. 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, Ala., 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 disputed this scenario. X-rays of the blockage in Victoria Banks' fallopian tubes were not consistent with this, 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 [were] 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, 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. So Medell Banks' conviction would stand.

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