‘Bygones Be Bygones’: The Unspeakable Injustice of the Brian Banks Case

Community of the Wrongly Accused

June 1, 2012

On July 8, 2002, Brian Banks, a 6-foot-3, 225-pound 16-year-old linebacker for Long Beach Poly High, felt like he was on “top of the world.” He was a star football player heavily recruited by a number of colleges, including USC, which verbally offered him a full scholarship. Before the day was over, Brian’s world would be turned upside down.

Just before noon, Brian was on his way to the school office to talk about his college applications when he bumped into a 15-year-old sophomore classmate named Wanetta Gibson. Brian had known Gibson since middle school. They decided to make out in a secluded alcove at the school. “[W]e kissed, we groped we touched, but we never had sex,” Brian said.

Brian made the mistake of saying something that upset Gibson, and they left on bad terms. Later that day, Brian knew something was wrong when he saw a number of police officers hanging around the school. Then, he saw Gibson coming out of a school office accompanied by police. Brian had never been in trouble with police, but now he felt his heart jumping out of his body.

The Lie

Gibson had told police that Brian raped her. It was a lie of vengeance. She claimed that she supposedly left history class at about 11:45 a.m. to use the restroom, and she passed Brian on the way. After Gibson exited the restroom, Brian allegedly grabbed her and pushed her into an elevator. The elevator supposedly went up one floor, then Brian allegedly forced Gibson out and dragged her down the hall and back down two flights of stairs to a secluded alcove where the purported assault was carried out for 15 to 20 minutes. Gibson claimed Banks ejaculated inside her.

Brian was arrested and charged as an adult on two counts of forcible rape and one count of sodomy by force, and he was taken into custody. “We believe this to be an isolated incident,” declared Long Beach Police Officer Jana Blair, both assuring a skittish public and giving credence to Gibson’s account at the same time.

From the outset, Brian claimed the encounter was consensual, and that there was no intercourse. Less than a month after Brian’s arrest, the co-principal at the school where he had only recently been a star declared that Brian “will not be returning to Poly regardless of the outcome of any judicial procedures.” Why? Even if he was cleared of wrongdoing, Long Beach Unified School District spokesman Dick Van Der Laan said Brian violated the district’s guidance and discipline code because he supposedly had consensual sex on school grounds. No one bothered to ask whether Gibson would receive the same punishment if if turned out her rape allegation was a lie.

Gibson’s Story Doesn’t Make Sense

As is common with rape claims, there were no witnesses, but this wasn’t a classic “he said/she said” claim, either. Gibson’s story didn’t add up. For example, Gibson said that Mr. Banks ejaculated inside her, but there was no semen in the rape kit — not a single molecule was recovered. Justin Brooks of the California Innocence Project explained: “[She] said she wiped it all off with a paper towel, but that’s impossible.” In fact, there was no physical evidence whatsoever to corroborate Gibson’s story.

In addition, Mr. Brooks went to the high school campus to examine the purported crime scene, confirming that Gibson’s tale didn’t make any sense. “For Brian to take [her] from the bathroom to the elevator, he would have had to take her past several classrooms. Someone would have seen or heard a struggle,” Brooks said. Brian’s story was, in Brooks’ words, “the only one that makes sense.”

“Brian never should have been charged,” Mr. Brooks concluded. “There was a lot of sloppy police work, and I don’t know what level of scrutiny the prosecution did.” A former Los Angeles County sex crimes prosecutor recently told a television reporter that “the DA never should have filed this case, and they should drop it now” due to the absence of DNA evidence and Gibson’s inconsistent statements about what happened.

A Tale of Two Mothers

In the aftermath of the rape claim, the news media sought out Gibson’s mother, who professed anger over the school’s lack of security: “It’s got me to the point where I don’t want to let the kids go to school at all,” she told a newspaper reporter. “There’s nowhere for them really to be safe. You would think school would be pretty safe, but it didn’t turn out that way.”

Gibson’s mother ended up suing the Long Beach school district over the supposed lax security that led to Wanetta’s alleged ordeal. The case settled, and the Gibsons were awarded $750,000.

Brian’s mother, on the other hand, was forced to sell her house and her car, and to borrow additional money from family, to pay for a lawyer to represent Brian.

Plea Deal Prompted By Vile Stereotypes

Brian’s case meandered toward trial. He was facing 41 years to life if convicted, but his lawyer worked out a plea deal, which she urged Brian to accept. The deal was that he would plead no contest to rape and kidnapping charges. She told Brian that the deal likely would result in just an additional 18 months in prison atop the year he had already served.

In a “he said/she said” case where the evidence didn’t support the accuser’s claim, Brian says his lawyer told him he would lose if he went to trial. Why? “If [you] go into that courtroom,” Brian remembers her telling him, “the jury [is] automatically going to see a big, black teenager and automatically assume [you are] guilty.”

Justin Brooks of the California Innocence Project would later say that racism surely played a part in what happened. Banks’ original lawyer, Brooks said, basically told the then-teenager that because he was a large, black, young man,
it would be his word against hers — and that he should take the deal.

A ‘Choice’ That Was No Choice

Brian also claims that his own lawyer denied his request to consult with his mother about the plea deal, and that he was given only ten minutes to decide. (We are not aware that the lawyer in question has addressed this allegation, which would be an unpardonable injustice if true.) Brian sat down and cried. He finally decided that 18 months sounded “way better than 41 years to life.”

“I was pretty much sold this dream,” he said. But Brian didn’t get the 18 months he had been told to expect.

He was sentenced to more than five years, followed by five years of probation, and then lifetime registration as a sex offender — the latter so that the community would feel safe knowing where Brian is at all times. Brian would be forced to wear a court-ordered tracking device on his ankle. “He got bad legal advice to take the plea,” said Justin Brooks of the California Innocence Project. “The attorney should have taken it to trial. I can’t imagine not taking this case to trial. [Gibson] had so many inconsistent statements.”

“The system failed Brian,” Brooks said plainly.

Brian quickly figured out the same thing. “My mom sold her house, her car and borrowed money from family for the lawyer who represented me in this case,” Brian said, “and all that got us was a plea bargain … and that plea bargain destroyed my life.”

With no money, Banks tried to appeal on his own with no luck. He then reached out to the California Innocence Project.

“Free”

Even after his release from incarceration, Brian was incapable of leading a normal life. “I’ve been unemployed since I’ve been out,” Banks said. “I’ve had one real job, working in a warehouse. I’ve had to live with my mom, then with my girlfriend and for the past seven or eight months with my brother, to survive.”

Then a remarkable thing occurred. In March 2011, Gibson contacted Brian from out of the blue through Facebook and said she wanted to reconcile their friendship. “She didn’t show any remorse,” Brian said.

She said: “I figured you and I could let bygones be bygones. I was immature then, but I’m much more mature now.”

Brian was stunned. He quickly closed his laptop. “What did I just see?” he asked himself.

Brian kept his wits about him. “I reached out to her and asked her to meet with me after receiving that Facebook friend request, and when we met, my sole purpose of meeting was to capture that recantation on tape.”

Gibson agreed to meet with a private investigator Brian retained, who secretly videotaped Gibson recanting her accusations against him.

‘No, He Did Not Rape Me’

Gibson was asked if Brian raped her, and she said, “No, he did not rape me.” She “felt bad and guilty about what happened to Brian,” Brooks said.

But she was also concerned that she would have to return the $750,000 payment from a civil suit brought by her mother against Long Beach schools. She told Brian: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.” In addition, Gibson feared how a recantation would affect her relationship with her children.

As a measure of how badly she really felt, and of the maturity Gibson claims to have found, Gibson later claimed that her recantation was, itself, a lie. She claimed that Brian offered her a $10,000 bribe to say she had not been raped. This latest accusation, like the earlier one, lacked plausibility because Brian has no money. “It was disgusting,” Brian told a television reporter.

Really Free

Armed with her video recantation, and the absence of any physical evidence to support her tale, Justin Brooks convinced the district attorney to take a look at the case. “I told them, ‘Talk to Brian and you will believe he is telling the truth and that she is lying,'” Brooks said. “She had no credibility. They did their own investigation.”

At a hearing on May 24, 2012 before Judge Mark C. Kim, who had presided over the original case, the district attorney agreed with Brooks and convinced the judge that Brian’s conviction should be reversed. Brian bowed his head. Tears didn’t just stream down his face, they cascaded from it.

And now, Brian Banks — the kid who was arrested and whose world was turned upside down at the age of 16 on the basis of a lie; the kid who was told he wouldn’t be allowed to return to his high school even if he was innocent; the kid who was pressured into a plea deal because, as a black male teenager, no one would believe he was innocent; the kid who spent more than five years behind bars and then was forced to wear the kind of tracking device they put on animals; the kid who couldn’t get a job after he got out and had to rely on the kindness of friends and family — that kid — has a tryout to play in the NFL with the Seattle Seahawks.

That’s not all. The Washington Redskins, the Kansas City Chiefs and the Miami Dolphins have also expressed interest. Mike Shanahan, coach of the Redskins, called Brian personally. “I talked to him on the phone,” the coach said. “I think when somebody goes through the situation that he went through, he deserves an opportunity to try out for somebody. Considering what he went through, just reading about — I don’t know him personally — I called him up and said, ‘We’d love to have you out.’ We’re going to have him out sometime next week, and then he’ll work out and we’ll see what type of shape he’s in,” Shanahan went on. “This kid deserves a chance.” And if that doesn’t work out, Brian can switch to baseball — he’s received an uncolicited offer from the president and CEO of Arizona Diamondbacks.

“[J]ustice,” declared one newspaper, “eventually was served.”

But was it?

After the Storm

Brian, now 26, has stayed incredibly positive despite his ordeal and says he wants to put it behind him. He has not considered any legal action against Gibson. “I remained unbroken throughout this situation and I know that if I can get through this and get my life back, I’ll be able to get through the rest.” “With this newfound freedom, I promise to you and I swear to you I’m going to do great things,” he said.

L.A. prosecutors have also said they have no plans to charge Gibson for making false accusations, saying it would be a tough case to prove.

Brian Banks will seek $100 from the state for every day he was wrongfully incarcerated — that works out to about $200,000. That’s all he’d be entitled to receive under current law.

For her part, Gibson likely will keep the monies paid out by the school district for the alleged rape. Even if there were no legal hurdles for the school district to get it’s money back, Gibson is essentially judgment-proof. She received public assistance for a time and her children, ages 4 and 5, still do. Gibson was ordered initially to pay a $600 a month toward their support. But in the last year, county officials said she didn’t have to pay anything, citing a lack of income and employment.

Lessons

The Brian Banks case exposes systemic problems that pose unreasonable risks of punishing the innocent. The problems are not isolated, and if Brian Banks can serve five years in prison on false accusations, the same can happen to any man.

“There are a lot of guys out there in that situation,” Justin Brooks told CNN. The tragedy, Mr. Brooks said, was that “if we hadn’t got that recantation, Brian would have gone through this the rest of his life.”

The Innocence Project has helped overturn numerous cases where the the same patterns are present: prosecutors who rely too heavily on the testimony of a dubious witness; there is little or no physical evidence to support the charges; the severity of the counts pressure a young and vulnerable defendant to accept a plea deal rather than risk incarceration for decades or even life if a jury found him guilty; the accused had limited financial means with which to mount a strong legal defense.

(1) Prosecutors roll the dice on long shots, hoping for plea deals:

The principal problem exposed by the Brian Banks case is that because so many defendants accept plea bargains rather than risk sentences that will keep them behind bars for life, some, and perhaps many, prosecutors are emboldened to charge defendants based on doubtful evidence with the expectation that the a significant number of them will accept a plea deal to avoid the possibility of much lengthier incarceration. Young men presented with “choices” such as the one Brian was given really have no “choice.”

Dr. Boyce Watkins says the problem is one all too familiar to black America: “The story of Brian Banks is, unfortunately, quite common, particularly among young Black males. It has even happened in my own family and the scenario is usually the same: Someone gets into trouble and can’t afford a good attorney. The overworked public defender, without seriously considering the evidence, tries to get the defendant to take a plea deal. Even if he is actually innocent and fights for his/her right to a fair trial, the defendant is then told that not succumbing to jail or prison time will result in a much harsher sentence. The person doesn’t go to prison because they are proven guilty beyond a reasonable doubt; they are incarcerated because public officials are too lazy to actually carry out their commitment to pursuing justice.”

“As a result of this farcical form of justice being administered all throughout America,” said Dr. Watkins, “millions of Black men can’t get jobs and Black families have been destroyed to no end.”

(2) Black males presumed guilty:

Perhaps the most disturbing aspect of the case is that in a he said/she said scenario where the physical evidence didn’t support the accusation, it was taken as a given, even by Brian’s own attorney, that the jury would not believe him.

It is certain that at least some, and probably most, prosecutors play on race and gender stereotypes in deciding whether to charge a defendant. If the accuser in a rape case appears to be an angelic, vulnerable young woman, and the accused is a large, black teenage male, there is little doubt that at least a fair number of prosecutors would seek to capitalize on the vile stereotype of young black men as sexual predators. The answer, of course, is to hold prosecutors accountable to charge only when he or she is confident, to a moral certainty, of the false accuser’s guilt in the absence of improper considerations of race and gender. All things being equal, and in the absence of supporting evidence, he said/she said rape claims should not be charged because the prosecutor could not reasonably believe to a moral certainty of the accused’s guilt beyond a reasonable doubt. Criminal justice should not be Russian Roulette where a prosecutor happily bets on a long shot in the hopes of “getting lucky” with a young man’s life.

(3) False accusers need to be deterred.

The evidence to charge Wanetta Gibson for making a false police report is, by any measure, appreciably stronger than was the evidence to charge Brian Banks for rape ten years ago. To deter other false accusers, Gibson needs to be charged, and failing to do so undermines the public’s confidence in the way rape cases are handled. If jurors believe that the system allows men like Brian Banks to be so easily be destroyed by a lie, they will be reluctant to convict even in cases where the evidence is clear. That is no one’s interest.

(4) Compensation for wrongly accused persons needs to be greater.

The fact that the false accuser walked away with $750,000 and the falsely accused has to fight to get $200,000 is the kind of topsy turvy “justice” that engenders disrepute of our legal system. Of course the school district should sue to recover the money Gibson has been unjustly enriched, even if the school district can’t collect on the judgment. That payment was procured by fraud. Failure to pursue the money only invites other scam artists to seek similar paydays at the taxpayers’ expense. And, of course, Brian Banks deserves much more than $200,000.

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