Medell Banks Jrs.’ Conviction for Killing A Non-Existent Child Is Thrown Out As A “Manifest Injustice”


By Hans Sherrer


For Justice Denied Magazine Vol. 2, Issue 9



On August 9, 2002, The Alabama Court of Appeals threw out Medell Banks Jrs.’ conviction for killing a child that never existed. Medell is one of the Choctaw Three who confessed to the murder of a non-existent child after days of interrogation without being allowed access to a lawyer. The appeals court ruled “a manifest injustice has occurred in this case.”



There are many known cases of wrongful conviction for the murder of a victim whose body was never found, because the person was in fact still living. Nebraska’s governor commemorated one such error on March 25, 1987 by posthumously pardoning William Jackson Marion on the 100th anniversary of his hanging for the murder of a man who turned up alive four years later. In another notorious case, Antonio Rivera and Merla Walpole’s protestations of innocence fell on deaf ears when they were convicted in 1975 of killing their 3 year old daughter ten years earlier. While imprisoned and awaiting a retrial, their then 13 year-old daughter turned up alive and well in San Francisco.

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 was in the Choctaw County jail in Butner, Alabama, a town of 2,000, when she decided to feign being pregnant as a ploy to get released. The first doctor that examined her, Dr. Roshdy Habib, found no sign of pregnancy. The second doctor that examined her claimed to have heard a fetal heart beat. Victoria didn’t permit either doctor to do a pelvic exam, no tests were performed on her, and there was nothing in her physical appearance or behavior to indicate she was pregnant. The second doctor’s cursory and unsubstantiated diagnose was sufficient for Victoria to be released on bond in May 1999, after she threatened to sue the jail for failing to provide prenatal care.

            On August 3, 1999 the Choctaw County sheriff encountered Victoria and asked about the baby that would have been born in June based on what she said while in jail. When Victoria told him she had a miscarriage, the Sheriff escorted her to the office of the second doctor that had seen her in the county jail. Victoria was examined and it was determined that there was no evidence she had ever been pregnant.

Three days later Victoria was taken into custody and the police wanted to know what happened to the “missing” baby that had been the reason she was released on bond in May. The police questioned Victoria, Medell Banks Jr., her husband she had been separated from for several years, and her sister Dianne Tucker. All three are poor, black, and for lack of a more politically correct word, have been described as mentally retarded. Victoria has an IQ of 40 and Medell has an IQ of 57.




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





The three told the police Victoria had pretended to be pregnant as a ruse to get out of jail, and that she couldn’t have been pregnant because her tubes were tied in 1995. However, after being questioned for extended periods of time without being allowed to consult with a lawyer, they all confessed to participating in the killing of the “missing” child. Based on their “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 spectre of being executed in the electric chair if convicted after a trial, all three were eventually pressured into pleading guilty to manslaughter. 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.

The outrageousness of the circumstances surrounding the alleged “confessions” of the Choctaw Three is hinted at by the fact a tape recording the prosecutor claimed contained a waiver by Medell of his right to an attorney, contains nothing comprehensible except his clear request for the police to let him go home. The coercion involved in the false confessions by the three Choctaw defendants is also indicated by the fact that Medell, in spite of his mental limitations, only confessed under the duress of intense and prolonged interrogation for days without the aid of consulting with a lawyer.

After languishing in jail for almost two years, Medell Banks Jr. entered a “best interest” guilty plea on May 7, 2001. However, Medell didn’t go quietly into the night when he entered the guilty plea that would send him into the hell of Alabama’s third-world prison system. He told Circuit Court Judge Lee McPhearson, as he had told anyone who would listen, that he was innocent:


“Your Honor, I don't think I have been treated fairly. I got a son out there I love, I want to be with the rest of my life, do what I can to be with him, show him all the love, respect I can. For this here, I don't think I been treated fairly.


And it hurts me in my heart to get time for something I didn't do. I wasn't there. I don't know nothing about nothing. (R. 83.)”


On June 25, 2001, Judge McPhearson sentenced Medell Banks to 15 years in prison, the same sentence given to Victoria Banks and Dianne Tucker. The same day Medell was sentenced, the judge granted a motion by his lawyer for a medical examination of Victoria she had agreed in advance to undergo. 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.




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








Medell’s court appointed lawyers, Rick Hutchinson and Jim Evans had been inspired to go the extra mile in fighting for him by his unwavering proclamations of innocence. They realized, however, that Medell needed more to prove his innocence than the lack of any physical evidence Victoria had a baby, including no hospital records, no doctor records, no one who ever saw a baby, and the fact that she had a tubal ligation in 1995. 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. The author of numerous articles for professional publications, and the Director of Reproductive Endocrinology and Fertility at the University of Alabama School of Medicine in Birmingham , Dr. Steinkampf conducted his examination of Victoria on July 12, 2001. What he found not only supported the innocence of all three defendants, but established it with a scientific certainty: Victoria ’s 1995 tubal ligation had been effective and it was physically impossible for her to have become pregnant. After the examination Dr. Steinkampf said Victoria was sterile and “it was impossible” for her to have naturally conceived a child. Medell had been proven right: all three defendants were the innocent victims of a wrongful prosecution for the killing of a child that never existed.

When interviewed, Dr. Roshdy Habib, the doctor that first examined Victoria Banks at the Choctaw County jail in February 1999, concurred with Dr. Steinkampf’s conclusion: “The evidence is very clear that she was not pregnant.” He also said that given her tubal ligation, she could only have been impregnated “by the Holy Spirit.”

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. During the evidentiary hearing that followed in August 2001, the doctor that had performed Victoria’s tubal ligation agreed with Dr. Steinkampf’s conclusions. He further testified that absent a reversal of the surgery, the only way she could become pregnant would be by vitro fertilization. The prosecutor did not even suggest that Victoria had undergone vitro fertilization.

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 claimed that the only basis for doing so would be if Medell had presented new evidence at the hearing that cast doubt on the veracity of the facts underlying his conviction (that was solely based on his guilty plea). 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. In making his ruling, the judge totally disregarded that the existence of the alleged child was not supported by any physical, medical, or scientific evidence.

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:


“Therefore, after evaluating the circumstances of this case in the Heaton framework and any other relevant information in the record that would indicate whether a manifest injustice had occurred in this case, we hold that a manifest injustice has occurred in this case.” Banks v. State, No. CR-01-0310 (Ala.Crim.App. 08/09/2002) (emphasis added).


In his concurring opinion, Justice Wise wrote: “In my opinion, the facts of this case present a classic example of a manifest injustice.” (emphasis added).

The Appeals Court’s order meant the prosecutor had the choices of taking Medell to trial, dropping the charges and releasing him, or appealing the ruling. Given the facts of the case it is remarkable that Choctaw County’s prosecutor not only chose to appeal, but he stated his intention to try Medell for murder in spite of admitting in an August 2002 interview with NY Times columnist Bob Herbert: “We have no physical evidence.” When asked by Mr. Herbert what evidence of any kind he had that Victoria Banks had a baby in June 1999, the prosecutor replied: “Well, they all told us that.” In other words, the prosecutor’s case against Medell hinges on confessions extracted after days of intense interrogations during which the three mentally retarded defendants were denied the benefit of consulting with lawyers. 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.”

So in spite of being innocent of committing any crime and having his prosecution described by the Alabama Court of Appeals as a “manifest injustice,” Medell Banks Jr. continues to be incarcerated in an Alabama prison because of the vindictiveness of a petty small town prosecutor luxuriating in the limelight of national press attention for the one and only time it will occur in his lifetime. 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. However, Medell inched closer to being freed on September 20th when the Alabama Court of Appeals refused to reconsider its decision of August 9, 2002. In another display of his megalomania, the prosecutor announced he will appeal the Court’s ruling to the Alabama Supreme Court.

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 misjustices 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.



Source: 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: .

3 in Prison for baby’s death – but did it exist?, Associated Press, Arizona Republic, March 1, 2002.