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with capital murder, six additional pathologists examined the body and unanimously
concluded that neonatal pneumonia had killed the child—it was a classic stillbirth with very
common features. This new information led the prosecutor to drop the charges, sparing Ms.
Lee a capital trial and, potentially, the death penalty. The discredited pathologist left
Alabama but continues to serve as a practicing medical examiner in Texas.
In hundreds of other cases, falsely accused women never received the forensic help they
needed to avoid wrongful convictions. A few years earlier, before representing Marsha
Colbey, we took on the case of Diane Tucker and Victoria Banks. An intellectually disabled
black woman living in Choctaw County, Alabama, Ms. Banks was accused of killing her
newborn child even though police had no credible basis for believing she had ever been
pregnant. Banks had allegedly told a deputy sheriff that she was pregnant to avoid time in jail
for an unrelated matter. When she was seen months later with no child, police accused her of
killing her infant. Disabled and without adequate legal assistance, Ms. Banks was coerced into
pleading guilty to killing a child who had never existed along with her sister, Ms. Tucker.
Because she was facing capital murder charges and a potential death sentence, she made a
deal to accept a prison sentence of twenty years. Law enforcement officials refused to
investigate her claims of innocence prior to sending her to prison. We won her freedom after
establishing that she had had a tubal ligation five years prior to her arrest, which made it
biologically impossible for her to conceive, let alone give birth to, a child.
In addition to unexplained deaths of infants parented by poor women, other kinds of “bad
parenting” have also been criminalized. In 2006 , Alabama passed a law that made it a felony
to expose a child to a “dangerous environment” in which the child could encounter drugs.
This “child chemical endangerment statute” was ostensibly passed to protect children living
in households where there were meth labs or drug-trafficking operations. But the law was
applied much more broadly, and soon thousands of mothers with children living in poor,
marginalized communities where drugs and drug addiction are rampant were at risk of
prosecution.
In time, the Alabama Supreme Court interpreted the term environment to include the womb
and the term child to include a fetus. Pregnant women could now be criminally prosecuted
and sent to prison for decades if there was any evidence that they had used drugs at any point
during their pregnancy. Dozens of women have been sent to prison under this law in recent
years, rather than getting the help they needed.
The hysteria surrounding bad mothers made a fair trial for Marsha Colbey very difficult.
During jury selection, numerous jurors announced that they could not be impartial toward
Mrs. Colbey. Some jurors indicated that they found allegations of killing a child so disturbing
that they could not honor the presumption of innocence. Several revealed that they had such
a close relationship with one of the state investigators—a key State witness who had been
especially vocal about identifying bad mothers—that they would give him “instant
credibility” and would “believe everything [he] said was credible.” Another juror admitted
trusting law enforcement witnesses he knew to the point where he would “believe anything
they say.”
The trial court allowed almost all of these jurors to remain on the jury panel despite
defense objections. Ultimately, a jury who brought many presumptions and biases to the trial
of Marsha Colbey was selected to decide her fate.