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