A Lawyer’s Choice: Brian Banks

The  60 Minutes story on the tragedy of Brian Banks’ wrongful conviction for rape and kidnapping provided another breathtaking example of the inability of the criminal justice system to discern the guilty from the innocent, and followed a high school football star’s life destroyed for nothing, while the “victim” got away with $1.5 million.  It was a moving and revealing piece, but with a mostly happy ending.

While the core of the wrongdoing falls on Waneda Gibson, who lied about being raped and kidnapped and was paid well for her lie, there is another person tacitly blamed in the story, Banks’ original lawyer who advised him to cop out to a plea bargain, even though he proclaimed his innocence.  He faced 41 years if he lost at trial, and was sentenced to six years, the max, under the plea, after which he was required to wear an ankle monitor and suffer the indignities expected of a convicted rapist in perpetuity.

Initially, Brian’s prospects appeared to be looking up: DNA samples from the L.A. County Sheriff’s Office came back negative – as he insisted they would. Unable to make a million dollar bail, Brian waited for a trial for a year behind bars.


As his day in court approached, Brian says that his lawyer feared that he wouldn’t get a fair trial, based on his age, size & race. So she, an African-American herself, convinced Brian to plead no contest to a crime he insisted he didn’t commit.



His plea meant he’d avoid a possible 41 years in jail, but he was agreeing to a deal that included a sentence of anywhere from 18 months to five years, and Brian received the maximum.

Wasn’t it her fault too? Didn’t Banks’ original lawyer fail him as well? 

Justin Brooks of the California Innocence Projects says so.


“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.”
There is no question that the system failed Brian, but whether his original lawyer did so isn’t nearly as easy to conclude.  To argue, after the fact, that he “can’t imagine not taking this case to trial” is the sort of overly simplistic statement that one would expect of a lawyer who has never tried a case.  What makes this surprising is that the Innocence Project has engaged in more than its share of post-conviction exonerations where the defendant went to trial, did anywhere from a yeoman’s to brilliant job defending an innocent person, and still lost.  Despite fighting, an innocent defendant was found guilty.

That’s guilty. As in a potential 41 years worth of guilty.

Had Brian Banks been convicted after trial, he might not have been sentenced to the full possible term of imprisonment, but he most assuredly would have been sentenced to decades, plural, in prison. If that happened, Waneda Gibson would never have Facebook friended him, and he would never have been able to capture her recantation on videotape.

And today, he would remain in a prison cell as a convicted rapist.  And ten years from now, he would still be in that cell. And maybe even twenty years from now. And nobody would know his name, as he was just another convicted rapist dying a slow death in prison instead of having his story told on 60 Minutes.

It certainly sounds like the case was triable, and that a different lawyer might have sought to try the case rather than advise Brian Banks to plea.  Then again, it’s easy to reach such conclusions after an exoneration, particularly one that was incredibly fortuitous as this. Had any duck not gotten in line here, Banks would still be a guilty rapist. Not everybody is so lucky.

And so a lawyer, having pondered every bit of evidence, every detail, but also having given up sleepless nights to the jurisprudential aspect of this case, from Banks’ physical appearance to the judge’s proclivities to the way jurors just fawn at the testimony of a young girl, a high school girl, who gets teary eyed as she talks about how the big, strong, sexually charged and arrogant high school football star physically overwhelmed her and stole her control of her body when he forced himself upon her, a reality was faced.

Was taking a no contest plea to rape and kidnapping the right decision? Not when viewed through the prism of a subsequent exoneration.  But to reach the conclusion looking backwards is to engage in facile fantasy.  The lawyer had to look at the risk going forward, not knowing that Waneda Gibson would recant ten years after.  If one plays the odds, what are the chances that was going to happen?  Slim. Really slim. It did, but is it enough to risk a person’s life on?

This isn’t to say that Brian Banks’ lawyer made the right choice or the wrong choice.  Not having the information in front of me that she had at the time, it’s impossible to piece together the risks that had to be weighed in deciding whether, as Justin Brooks says, he “can’t imagine not taking this case to trial.”  Every trial lawyer knows that a trial is a crapshoot, no matter how strong the defense or weak the prosecution. To suggest otherwise is naïve and foolish.  Nobody, but nobody, knows what a jury will do. Nobody.

While the system failed by definition, as an innocent person went to prison, the need to lay blame needs to be tempered by reality.  Had Brian Banks gone to trial and been convicted, the system would still have failed but nobody would know or believe his pleas of innocence.  That he was ultimately exonerating, despite the affect on his life, makes it a happier ending than it might have been, but it doesn’t make the lawyer’s choice any easier, or the advice to cop out necessarily wrong.

16 comments on “A Lawyer’s Choice: Brian Banks

  1. DJC

    If the case was one that was so clearly a not guilty, why was the prosecutor extracting a guilty plea. The problem in the United States is that we permit these plea offers that are so lenient compared to a potential conviction, that it almost forces the defendant to take the plea. Other countries cap the difference between plea and and what can be gotten by being found guilty. This theoretically prevents coerced pleas.

  2. Ken Mackenzie

    Ultimately, the plea is not the lawyer’s decision. The defendant can always take their chances.

  3. Ken Mackenzie

    Even where the differential is not so great the effect is still coercive. Go home now or next year? Next month? Stay out to care for your disabled wife/child/mother or risk going in?

  4. SHG

    You’re attributing a view by the post-conviction defense lawyer to the pre-conviction prosecutor. You can’t do that. The case was never “clearly a not guilty” before the plea, and the six year offer pre-trial was a huge benefit to the defendant compared to the post-conviction sentence for rape and kidnapping.  Few people would be outraged by a stiff sentence for rape and kidnapping, so this is a bad example of your argument.

  5. SHG

    Some lawyers advise as to whether a plea is a good idea. Some lawyers manipulate defendants into taking a plea. The latter are wrong to do so, as the choice must always belong to the defendant after being advised of all the relevant considerations.

  6. DJC

    That was what you might call a rhetorical question. My point is that ex ante it was obviously NOT a case of innocence. But my point was more to the point given that the prosecutor or his/her cops had the ability to Interview the “victim” and judge her credibility, they were better placed to than the defense lawyer who is facing a guy possibly getting decades.

  7. SHG

    And what makes you assume that the witness didn’t appear credible to the police and prosecution? Though she turned out to be a liar, there is no reason to assume that the prosecution knew, or should have known, that at the time the prosecution was initiated. Sometimes, they are fooled just like everyone else. 

  8. Public Defender

    Brian Bank’s first lawyer failed him. There was no DNA evidence. That alone would be good enough for reasonable doubt, given the nature of the allegation. While it’s true that it is often unfair to judge a lawyer in retrospect without viewing the same information that they have before them, it is also my experience that there are two types of crim defence lawyers: those who are ready to take a matter to trial, and those who push for plea bargains. The problem is when lawyers are the latter, because they fear the former. Trials are difficult. This is why lawyers who aren’t ready to competently meet that challenge on a regular basis should not be trial lawyers. A judge can be forgiven for sending an innocent person to jail. But a lawyer should never be forgiven for being unwilling or unable to fight for a wrongly accused’s innocence, risks notwithstanding.

    In Bank’s case, I’d hazard a guess that this is what happened, given that the lawyer advised him he wouldn’t get a fair trial based on his age, race, and size. Did she really think he get a fair break when it came to sentencing, even after an early guilty plea?

  9. SHG

    You must be right, since no one has ever been convicted of rape without DNA evidence, and any lawyer who doesn’t take a case to trial in the absence of DNA evidence must be one of those lawyers incompetent to meet the challenge. Or your argument is absurdly naïve and utterly ridiculous, because there aren’t prisons filled with people convicted of rape in the absence of DNA evidence conclusively proving that you’re wrong. 

    It’s not that simple.

  10. Public Defender

    This is the problem with many lawyers: they are hopelessly risk averse. They would rather go with the devil they know than with the devil they don’t. This was the difference between Shapiro and Cochran in 1994. The former wanted the easy out. The latter used his wits and hustle to win an almost airtight case.

    Trial lawyers are warriors. It’s no coincidence that the motto of the SAS is “who dares, wins.”

    That’s all I was implying. But do you really disagree with my premise that it’s not a good thing that many (usually mediocre at best) lawyers plead out defensible cases, throwing away a good chance of vindication to make someone serve time for a crime they didn’t commit?

    Are you so willing to disregard the sentiments of the most important person in this matter, the wrongly convicted CLIENT, who himself expresses as much in a statement quoted in your own post, that he did not get adequate representation in the circumstances?

    How exactly do your examples prove that I’m “wrong”? Did I say that “EVERY case without conclusive DNA evidence must unequivocally be taken to trial notwithstanding the facts?”

    How many more wrongly accused would be filling prisons if most defense lawyers were to gutlessly plea bargain the many fake rape allegations that come before the courts?

  11. SHG

    My issue with your premise is that it’s a grossly simplistic assessment of a very complex decision. I have no more tolerance of lawyers afraid to try a case than you do, but you make wild assumptions in this case. The absence of DNA evidence alone is reasonable doubt? Absurd. Clients feel “buyer’s remorse” after taking a plea all the time, and then claim they really wanted to go to trial, but at the time they took the plea, they couldn’t bear the idea of going to trial. 

    It’s a spectrum, not polar extremes. If a lawyer is afraid of trial, then the client loses the other end of the spectrum. But if the lawyer is willing to try the case, it doesn’t mean the decision of whether to go to trial or plead is simple. By reducing it to such a black and white absurdity, you miss the depth of sophistication needed to give the best advice as much as the lawyer who counsel’s plea because he’s afraid to try the case.

  12. Public Defender

    I agree with your sentiments, but I disagree with their application in this particular case. Unfortunately, the medium of an internet msg board makes nuanced and fully reasoned arguments difficult when people such as you and I have other priorities at play. I also read Bank’s subsequent lawyer mentioning numerous inconsistent statements. The complainant, as I saw her in the 60 minutes case did not seem credible or sophisticated. There is not much to suggest that this was any other than a winnable case in the hands of a competent and courageous defence lawyer.

    I agree with you that it is dangerous to second guess. But from what I’ve seen and heard of this case, I can’t help but agree with the tone and tenor of the 60 minutes piece.

    I am just recently out of school. It never ceases to amaze me that, even at this early stage, how often my clients put all of their power and faith in me to decide the outcome of criminal cases for them. I constantly remind myself that all I can do is give the client an honest appraisal of the evidence and their options, with the attendant risks and consequences. I emphasize that they must make the final decision, and that I will not act until they are fully prepared to do so. If they say they are not guilty, I will run a trial whether I believe in their case or not. In cases that are above my head, I refer them elsewhere. That’s me as a public defender. Worse is the lawyer who apparently took not an insignificant fee for the service rendered in Banks’ case.

  13. SHG

    You watched a report ten years later. It offers little insight into what would have happened at the time of trial, and your view was tainted by the intro, content and nature of TV.  I am not recently out of school, and make no mistake about the impact of a high school girl telling a jury she’s been raped. They will forgive a lot of her. They will not be so forgiving of a defendant.  You’re very cavalier about other people’s lives. Be careful about that, as you can do an awful lot of harm with that attitude.

    Try a hundred cases or get a decade under your belt and let me know if you still think the same of all the things that seem so clear and simple now. 

  14. T-BaggersAreTraitors

    Here’s what I honestly believe. Brian Banks should belong in prison *even* if he is innocent. We have a lot of issues with rapists getting off for their crimes, and I would prefer that an innocent person like Banks remain in prison that to perpetuate the bogus stereotype that women lie about being raped.

    I realize that my position isn’t popular, but its what it is.

  15. SHG

    Popularity isn’t your problem. Your first problem is that your “honest belief” is irrelevant, as you don’t use your name. No one cares what some anonymous douche on the internet believes, so your opinion is meaningless.

    Second is your premise, that “women lie about being raped” is a bogus stereotype is belied by definition, meaning you’re not only too much of a coward to make your opinion count by putting your name behind it, but a stupid coward.  And that’s without getting into the whole issue of not wrongfully convicting people because that’s the nature of what the law isn’t supposed to do, or the issue of your willingness to sacrifice a life that doesn’t happen to be you.

    Now if you used your name and volunteered to serve the sentence for a wrongfully convicted man because of a woman who lied about being raped, well, then your opinion would matter. Instead, it’s only good for a laugh.

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