Friday, December 28, 2012

'Bygones Be Bygones': The Unspeakable Injustice to Brian Banks

Brian Banks suffered an unspeakable injustice. He was falsely accused of rape and spent years in prison for something he didn't do. His story is a chilling case study in the byzantine ways our culture tolerates the harsh treatment of innocents as the price of battling serious sex crimes. It is a somber warning that the witch-hunt hysteria fomented by self-anointed rape avengers of yesteryear is alive and well in 21st Century America, a nation punch drunk on law and order and building prisons to quench its pathological fear of young minority men. 

The story has a triumphant ending. After a wrongful conviction, five years of prison and then five years of parole when he was forced to register as a sex offender and wear a tracking device like an animal, on April 3, 2013, Brian Banks signed a contract to play for the Atlanta Falcons of the National Football League. It was a testament to Brian Banks' fortitude and determination, but the decade before that triumph would have crushed almost anyone else. This is the story of how a false accuser, and a system that didn't give a damn, snatched a decade from a young man. 

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 were not in a relationship, but 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.

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. Brian would later say she didn't want her family to know she was sexually active. 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 over the course of 15 to 20 minutes.  Gibson claimed Brian 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 of its safety 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

There were no witnesses to the alleged rape, and 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.

Mr. Brooks explained that the logistics of 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 -- that the encounter was consensual --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.

$1.5 million for Gibson; Brian's Mother Sells Her House and Car and Borrows to Pay Brian's Lawyer 

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 Gibson was awarded $1.5 million (they split half with their attorney and kept $750,000).

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

Gibson Tries to Come Clean

Gibson said she tried to "come clean" and admit her lie to her civil attorney in the suit against the school district, but the attorney told her, "Don't say nothing. Like don't talk at all. Let them do what they gonna do."

Plea Deal Prompted By Vile Stereotypes

Brian sat in jail for a year while his case meandered toward trial. He was facing 41 years to life if convicted, but his lawyer was trying to get him to plead to a deal. Finally, she told him she'd worked out a very favorable 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, 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, then 17, claims that his own lawyer denied his request to consult with his parents about the plea deal, and that he was given only ten minutes to decide. 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 six 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 GPS tracking device on his ankle. He was not allowed to live within 2,000 feet of a school or a park; he had a midnight curfew; he couldn't leave the county without permission; he couldn't leave the state under any circumstances. 

"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."

Brian spent more than five years behind bars for a crime he didn't commit. Five years, in the prime of his life, when he might have been playing college and professional football.

“When I was in prison, for five years and two months," he told reporters in April 2013, "I spent that time educating myself. Any book I could get my hands on, I read. I opened up the thesaurus, I opened up the dictionary. I wanted to understand words, learn words, I worked on my penmanship, and I worked on my public speaking. I wanted to be better than the label that was given to me. I had no clue that I would have an opportunity to clear my name and get my life back and so what I did was study and learn and grow as a man, so that this one situation that I was wrongfully accused of wouldn’t define me for the rest of my life."

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


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.  He thought it was someone else playing a sick joke on him.

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 Brian and a private investigator, Freddie Parish.  Why did Gibson meet with Banks? Banks thinks Gibson was hoping to reconcile. "You read the texts and that's the only conclusion you come to," says a source who worked on the case. "She seems absolutely clue-free about what she did to him."

Brian told her about his ordeal; oblivious to his suffering, she tried to match what he said by relating what she had been through.

Mr. Parish, the private investigator, came up with the plan to secretly videotape Gibson, and to get her to recant her accusations against Brian. He rigged a pen with a camera.

'No, He Did Not Rape Me' 

Gibson was asked if Brian raped her, and she said, "No, he did not rape me." Mr. Parish said to himself, "Wow! I got it!"  But she also admitted that was concerned she would have to return the $750,000 payment from the civil suit 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.

After it was all over, Brian related her "let bygones be bygones" comment on Jay Leno's Tonight Show, and the audience audibly groaned.

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, the jurist 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. 

Within days, Brian Banks -- the kid who was arrested and whose world was turned upside down at the age of 16 because 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, when he got out, couldn’t live within 2000 feet of any school or park because he was a convicted sex offender, couldn't get a job and had to rely on the kindness of friends and family, and couldn't leave the county under any circumstances -- that kid -- was given a tryout to play in the NFL with the Seattle Seahawks, the San Francisco 49ers, the San Diego Chargers, and the Kansas City Chiefs.

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."  He also received an unsolicited offer from the president and CEO of Arizona Diamondbacks. In 2012, no NFL team would sign him so he signed with the Las Vegas Locomotives of the United Football League over the summer. He played four games at linebacker before financial problems forced the league to cancel the remainder of the season.

But then, On April 3, 2013, Brian Banks landed an NFL contract when he signed with the Atlanta Falcons. He admitted to reporters that he had given up his dream of playing football when he went to prison and had to adjust to that "life of violence."

Brian remains chronically optimistic. Just as he said he was "on top of the world" on the morning of July 8, 2002, when Brian went on Jay Leno's Tonight Show, the first thing he said was, "I'm on top of the world."

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

But was it?

After the Storm

Brian, now 27, 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."  He said: "With this newfound freedom, I promise to you and I swear to you I'm going to do great things."

Superstar sports writer Rick Reilly wrote: "I don't know about you, but I can't remember another story that made me want to alternately punch something and hug something like this one. The way Banks has handled himself, without bitterness or bile, with grace and guts, makes you wish he were running the U.S. Senate. If it were me, I'd be stomping around, waving lawsuits and screaming, I TOLD you I didn't do it!!!'"

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.  There are reports that she and her family spent most of it on things like cars, so 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 young children 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.


The Brian Banks case exposes systemic problems that create unreasonable risks of punishing the innocent. If Brian Banks can serve five years in prison on false accusations unsupported by any evidence, 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 many defendants accept plea bargains they shouldn't be asked to accept 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 these defendants will accept a plea deal to avoid 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 rape 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 because he was black teen male.

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 they are confident, to a moral certainty, of the accused'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 cannot reasonably believe to a moral certainty that the accused is guilty beyond a reasonable doubt. Criminal justice should not be a game of Russian Roulette where a prosecutor hopes to "get lucky" with a young man's life. The prosecutor's job is to do justice, not to nail as many young black men and boys as possible.

(3) False accusers need to be punished and deterred. In this case, the false accuser has been rewarded monetarily. Her rape lie both had its intended effect and did not jeopardize her liberty. What does that tell people who might be thinking of telling similar lies?  That they can do so with impunity, of course.

The evidence to charge Wanetta Gibson for making a false police report is, by any measure, appreciably stronger than the evidence to charge Brian Banks for rape ten years ago.  The failure to charge her only undermines confidence in the way rape trials are handled. If the public believes that the system doesn't provide adequate safeguards for the innocent -- and clearly here it did not -- jurors will be all the more wary of convicting accused criminals even when the evidence is compelling. The failure to charge Gibson signals that what happened to Brian Banks is somehow acceptable.  She needs to be charged to help restore faith in the system.

(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 have sued 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.

(5) The need for better lawyering.  Everyone makes mistakes, but the news reports about this case suggest a possible absence of diligence on the part of the prosecution. It also suggests a defense that was too quick to exact a plea from a callow and scared young man without even allowing him to consult with his parents. Moreover, if it is true that Gibson's civil attorney wouldn't allow Gibson to tell the truth, he or she should be severely punished.

(6) False rape claims are products of a culture. Feminist gadfly Amanda Marcotte once wrote that "the idea that it's shameful to just have sex because you want to" is "the reason that you have false rape accusations in the first place." Marcotte noted that "women who aren't ashamed of having sexual adventures like group sex-even ones that go bad-don't use rape accusations to cover up their choices. It's the women who are afraid they'll be called sluts if it gets out that make up these rape stories." Amanda Hess similarly talked about women who make false claims to defend their "femininity."

There is much truth in what they say. Without excusing the false accuser (who, like a rapist, must be held accountable for her actions), false rape claims are largely culturally induced. Men and women view casual sex differently, and women feel remorse more than men following one-night stands. A study shows how common remorse is for women following one-night stands: "Overall women’s feelings were more negative than men’s [about one-night stand casual sex]. Eighty per cent of men had overall positive feelings about the experience compared to 54 per cent of women. . . . . The predominant negative feeling reported by women was regret at having been 'used'. Women were also more likely to feel that they had let themselves down and were worried about the potential damage to their reputation if other people found out. Women found the experience less sexually satisfying and, contrary to popular belief, they did not seem to view taking part in casual sex as a prelude to long-term relationships."  See here:

Similarly, last year in Ohio State University's student newspaper The Lantern, Amy Bonomi, a professor of human sexuality at OSU specializing in domestic violence and assault, said: "Women tend to feel bad after having a "random hook up," she said. Typically men are not upset by these occurrences. Bonomi attributed this situation to society's "gender double standard" that men are expected to be more sexually forward than women.

In addition, it is well to note that one of the common motives cited by experts for false rape claims is "remorse after an impulsive sexual fling . . . ." Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson at 375 (2007).

To insure that things like this are truly rare, we will need to change the culture that allows false rape claims.


The system let Brian Banks down. It is no stretch to suspect that even people who should have known better were too quick to stereotype Brian Banks in the worst possible way. It comes with the territory of being a young black male in America.

Brian Banks never should have been arrested for this claim, much less had his life destroyed over it. It's too easy to place all the blame for the gross injustice that occurred on a selfish lie told by a teenage girl, although blamed she must be. There's blame enough to go around.

The real danger is telling ourselves this was an isolated failure -- "just one of those things" that rarely happens -- and forget about it. Then, some of the blame will be on all of us the next time it happens to an innocent young man.

Brian Banks is attempting to secure funding to make a documentary about his life. It's a story everyone should know:

California Innocence Project Site