Sunday, 7 July 2002
By Michael Luo
THE ASSOCIATED PRESS
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 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 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 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 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 the short, stocky woman was starting to look it.
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 attached a heart monitor to Banks' abdomen and picked up a rhythmic sound distinct from the mother's heartbeat.
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. He 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 nestled in the woods of western Alabama. It's home to 1,952 people, roughly split between black and white, with both races holding elective offices.
Banks got a job at the chicken plant, an hour's bus ride across the Mississippi 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.
A couple of months later, in late July, 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 Aug. 3, 1999, Banks sat across from Lolley in a cramped, dim 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.
Lolley held Banks and also picked up two of her relatives: her estranged husband and her sister, Dianne Tucker. Like Victoria Banks, both are mentally retarded.
Over five days, detectives 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 recorder 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.
Such threats are acceptable tactics in police interrogations. But experts such as Chris Slobogin, a University of Florida law professor, say police often underestimate how suggestible retarded suspects 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. Medell Banks cut the cord, wrapped the infant in a blue towel or blanket 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."
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.
By the third day of questioning, however, 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.
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.
Investigators combed the area around Victoria Banks' trailer 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 physical evidence of a murder - or even of a birth.
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, as one doctor thought?
Could she have had a hysterical, or "false" pregnancy?
Had she 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 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.
* AP correspondent Garry Mitchell in Mobile contributed to this story.
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