If you are going to charge three defendants with capital murder for killing a newborn, do you have an obligation to show that the baby really was killed?

Not in Alabama, you don’t.

Do you need to show, somehow, that the baby ever existed? Not in Alabama. Not if the defendants are poor, black and retarded.

That’s what Bob Herbert of the New York Times wrote in his column last week.

On August 9th, an Alabama Appeals court overturned the guilty plea of a mentally retarded man for killing a baby that may never have existed. Medell Banks Jr., his wife Victoria Banks, and her sister Dianne Tucker… all pled guilty to manslaughter for the death of Mrs. Banks’ alleged newborn. The police, however, never found a body.

The story goes like this: In 1999, Victoria Banks was in prison awaiting trial for a different case. She told the prison authorities she was pregnant, hoping to get out of jail until her trial began. One doctor examined Banks and said she was not pregnant. Another doctor later claimed a fetal heartbeat was detected. Eventually, she was released. And when no baby was ever seen, Tucker, Banks and Banks were arrested for capital murder. Prosecutors even obtained confessions from the three. But, here is where it gets complicated. In 1995, four years before this alleged murder of her newborn baby, Victoria Banks had a tubal ligation. And the examination of a fertility expert revealed that Victoria Banks could not have been pregnant. Prosecutors, subsequently argued that Banks could have become pregnant despite the procedure.

Guests:

• Joseph (Rick) Hutchinson, Medell Banks’ defense attorney.
• Christie Doss, Medell Banks’ sister.