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This is the story of Brian Banks
May 25, 2012 12:18 AM   Subscribe

In 2002, Brian Banks was a sought-after high school football phenom until he was accused of kidnapping and raping a female student. On the advice of his lawyers, he pleaded no contest and served 6 years in prison. Then his accuser recanted. That's when the Innocence Project stepped in to help exonerate Brian Banks. CA Innocence Project filing here; informative if you skip right to the "Statement of Facts" part.
posted by lalex (146 comments total) 13 users marked this as a favorite

 
It will be interesting to see what he does with his life. He is not too old to attempt to capitalize on his athletic gifts again if he finds someone to help him train. He deserves another chance, even if it is a tremendous long shot.
posted by furiousxgeorge at 12:26 AM on May 25, 2012 [3 favorites]


I'm actually curious about that - he's 26 now, is that too old to get back into professional sports?
posted by lalex at 12:28 AM on May 25, 2012


According to documents in the case, she met with Banks and said she had lied; there had been was no kidnap and no rape and she offered to help him clear his record. But she subsequently refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

She was quoted as telling Banks: “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.”


Unbelievable.
posted by phaedon at 12:30 AM on May 25, 2012 [14 favorites]


I'm not one to usually hop on the vengeance train...but god DAMN.
posted by ZaneJ. at 12:31 AM on May 25, 2012 [1 favorite]


If he sues her and looses that is one unsympathetic jury.
posted by ZaneJ. at 12:32 AM on May 25, 2012 [3 favorites]


I'm actually curious about that - he's 26 now, is that too old to get back into professional sports?

Danny Watkins was a first round draft pick for the Eagles last year at 26 years old. He had no high school experience and started playing football when he was 22. He had a considerably less difficult road to get to the NFL than Banks did, but age alone isn't a definite barrier.
posted by furiousxgeorge at 12:34 AM on May 25, 2012 [1 favorite]


(And Brandon Weeden was drafted this year at 28, the college experience was a big difference with Banks though for both of these guys)
posted by furiousxgeorge at 12:37 AM on May 25, 2012


Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.

Well, it was definitely not a safe environment for Mr. Banks. Why shouldn't Banks he have a go at the taxpayers of California as well?
posted by three blind mice at 12:41 AM on May 25, 2012 [8 favorites]


Wanetta Gibson explained she wanted to “let bygones be bygones.”

How ... nice for her.

because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools..

I... I have no words.
I might go and and try and process why his lawyer suggested be plead No Contest some more.
Or I might ponder just how much harder Wanetta Gibson (and people like her) make it to prosecute actual rape cases.

Also, fair warning: the CA Innocence Project filing is a PDF.
posted by Mezentian at 12:43 AM on May 25, 2012 [2 favorites]


There aren't many attorneys general who have a sense of humor about the criminal justice system being abused in this way, nor do I expect that Long Beach Schools is just going to say "oh well, the money's gone", especially not with public funding in California being the way it is. This isn't over for the accuser. At least, I hope it isn't.
posted by George_Spiggott at 12:45 AM on May 25, 2012 [7 favorites]


I'm not familiar with the US/California court system. If he had been tried in an age appropriate court, what would have happened?
posted by Mezentian at 12:52 AM on May 25, 2012


This isn't over for the accuser.

It's not a slam dunk case against her. And probably the cost to the state in legal would exceed 1.5mm.
posted by stbalbach at 12:54 AM on May 25, 2012


Something tells me the mom of the accuser is behind this.
posted by quazichimp at 1:02 AM on May 25, 2012 [2 favorites]


Something tells me the mom of the accuser is behind this.

I get the same feeling.
posted by molecicco at 1:08 AM on May 25, 2012


stbalbach: It's not a slam dunk case against her. And probably the cost to the state in legal would exceed 1.5mm.
How is not a slamdunk case? Sounds like "he said, she said"- and we've already seen- that's a guaranteed conviction! And this is the kind of case where the cost exceeding $1.5M should not be a deterrent to a clawback/criminal penalty against Gibson; such behavior much be strenuously discouraged.

I'd root for a penalty up to and including the death penalty in this case- for the accuser, and potentially her attorney as well, as it sounds like he/she was well aware that this was a fraudulent case but urged Gibson to not recant because it would meaning losing out on the money the attorney would get. I very strongly feel that gaming the justice system, especially for mere money, is terribly "Meta" and thus one of the highest forms of treason. It's right up there with fraudulent voting machines on the "You are actually breaking the system through your actions" scale. Then again, how on earth did they get a conviction with only the testimony of a sociopathic teenager? Major jury fail on that one.

I know "the plural of anecdote is data", but this case is evidence that "he said, she said" is simply not sufficient for a conviction. Whether it pains you personally or not, simply going by someone's singular claim simply isn't valid in any way, in any court case, civil or criminal. It's no more plausible that someone would be a rapist than that someone would be a liar- probably less so, since lying is something everyone does every day to more or less a degree. And as this case shows, yes indeed you can get caught in a lie and feel compelled to ride it out, or have ulterior motives.

Does it mean all reports of rape are not valid? Of course not, but it does mean that any claim that "no woman would lie about rape" is simply not true. Which itself underscores that the wheels of justice shouldn't function based on probability clouds about the likelihood of "a typical man" being guilty of the accusations. Either they have concrete evidence, or they don't- and if not, people shouldn't go to prison simply because a plea bargain is a "safer" bet over life in prison for a fraudulent charge that you can't disprove. The latter choice is positively Kafka-esque.
posted by hincandenza at 1:10 AM on May 25, 2012 [11 favorites]


This isn't over for the accuser. At least, I hope it isn't.

They should just drop it -- otherwise, other false accusers will be afraid to recant, and getting innocent people out of prison is a lot more important than putting new ones in.
posted by Malor at 1:11 AM on May 25, 2012 [42 favorites]


I went to Poly during this time frame. It was a huge story at the time and I've been talking about it all day today with my friends from home. I'm glad to see Brian finally exonerated and I hope he can still be successful in football if that's what he wants to do.

Thanks for posting this. I'll be following the story closely, as will all my friends.
posted by Arbac at 1:14 AM on May 25, 2012 [1 favorite]


lalex, thanks for making the better post about this.

Sexual Assault is something the legal system is really, really bad about handling. Like, we say that there are things that Metafilter "doesn't do well"? Well, rape is something the justice system doesn't do well.

But, sadly, most of the reasons for that, in my opinion, come back to us citizens. Or at least us Americans, I can't speak for anyone else. Because we simply cannot yet discuss sex without making it scandalous, salacious, what have you.

My old criminal defense supervisor had a story from her Public Defender days, when she was waiting to try her theft case and waiting through a rape trial. This being pre-rape-shield, the defense attorney in this preceding case called the victim's prior sexual history up. When my former supervisor tried her case, she reportedly asked the theft victim if he'd ever given money to charity, or to a beggar, or to a friend. "Objection! Relevance!"

"Well, your honor," she said, "it was apparently relevant in your last case."

Rape goes unreported, and unprosecuted, to a far greater degree than incidents of false accusation occur. But I think there is a key similarity in the two. First, obviously, incidents of false accusation help to make prosecution of actual rapes that much more hellish for the victims. But as this story shows, they are actually two sides of the same coin. And that coin is a screwed-up sense of shame where sex is involved.

Public shaming keeps many rape victims from stepping forward for fear of humiliation. That is the same fear which led Gibson as a teenager to make her accusations. And then lawyers got involved and coerced her.

I don't hate Gibson, myself. She made a mistake as a child, and to her credit is trying to reconcile it in some way which doesn't destroy her. What I hate is our societal mentality.

We're bad at legally handling sexual assault. Rape-shield helps a lot but is far from perfect. Than again, no law is perfect. There will always be bad verdicts in any subject.

The problem isn't really legal. The problem is our desperate need to come to the understanding that women are in full and complete ownership of their own bodies, and that there should be no shame attached to whatever decisions they choose or don't choose to make with them. Only then can all rape victims be free to step forward, and false accusers be brushed away, if they even feel the need to come forward at all.
posted by Navelgazer at 1:14 AM on May 25, 2012 [56 favorites]


Malor: They should just drop it -- otherwise, other false accusers will be afraid to recant, and getting innocent people out of prison is a lot more important than putting new ones in.

I'm kind of split on this; you might be right, but this was a serious, heinous crime that needs to be punished.

However, when a false accuser doesn't recant but is instead caught via evidence (usually because they can't keep their mouth shut), the justice system should absolutely be dropped on them like a ton of bricks. And this doesn't usually happen, from what I've seen. There's no reason not to fix that.
posted by Mitrovarr at 1:16 AM on May 25, 2012 [1 favorite]


Navelgazer: I don't hate Gibson, myself. She made a mistake as a child, and to her credit is trying to reconcile it in some way which doesn't destroy her.
Well again, from the exonerate link, she apparently hesitated largely because she didn't want to give the money back- or give it to Banks. This doesn't sound like she's trying to reconcile much of anything.
posted by hincandenza at 1:26 AM on May 25, 2012 [9 favorites]


Hincadenza, I'm pretty sure pleading no contest means that the case never went to trial and no jury saw it, so a big chunk of your argument is not relevant to this particular case, though it may be to other cases.

Poor, poor guy. I have no idea how you go about putting your life back together in a situation like this, and I hope that he's got some good support from the state as well as family. As for accuser, that's a tricky one because you do want to leave options open to encourage for recantation, but there has to be some consequences for what she did. The death penalty seems a bit over the top, but then I'm not a fan of killing people in the name of justice.
posted by lesbiassparrow at 1:35 AM on May 25, 2012 [3 favorites]


I'd root for a penalty up to and including the death penalty in this case- for the accuser, and potentially her attorney as well, as it sounds like he/she was well aware that this was a fraudulent case but urged Gibson to not recant because it would meaning losing out on the money the attorney would get.

This is insane.
posted by ominous_paws at 1:53 AM on May 25, 2012 [65 favorites]


She really ought to do some time in prison and have to pay back the money in cash or community service (maybe helping actual rape victims). I doubt that any of that will happen, but that's what sounds fair to me.

Punishing her may indeed make other false accusers afraid to recant, but it may also make potential false accusers afraid to make false accusations in the first place and, with fewer liars messing things up, make actual rape victims more likely to be believed and free up some resources for investigating and prosecuting actual rapes. Not punishing her may have the opposite effects: others may be more likely to make false accusations (no punishment and lots of money? where do I sign up?), and more resources may be wasted investigating and prosecuting non-rapes while real rape investigations and prosecutions crawl along.
posted by pracowity at 1:54 AM on May 25, 2012 [6 favorites]


I don't hate Gibson, myself. She made a mistake as a child

That's real easy for you or me to say, but then neither of us spent 6 years in the slammer for something we didn't do.

Speaking personally, if this had happened to me at that age, it would have ruined my career. I wouldn't be anywhere near where I am today, and I'd have a hell of a time just trying to be a normal citizen and getting a normal job 6+ years later. Suffice to say, it would have put a serious professional damper on the rest of my life, if not fully ruining it, for all regular intents and purposes.

So yeah, screw that shit. I don't hate Gibson either, but I don't think you'd be saying Banks "made a mistake as a child" if he had actually committed the rape. She should pay for what she's done, and not just in dollars, but in hard time.
posted by allkindsoftime at 1:57 AM on May 25, 2012 [35 favorites]


So yeah, screw that shit. I don't hate Gibson either, but I don't think you'd be saying Banks "made a mistake as a child" if he had actually committed the rape. She should pay for what she's done, and not just in dollars, but in hard time.

As long as her lawyer, who allegedly pressured her into this, is serving alongside her.
posted by MartinWisse at 2:33 AM on May 25, 2012 [6 favorites]


A big part of the problem here is the plea deal system. The whole point of a plea deal is that it's supposedly in your best interests to take it, rather than risk a trial. But the problem is the risk:reward ratio is exactly the same whether you're guilty or innocent. Sure, you could argue that an innocent person is more likely to win at trial, but if you have a public defender who seems incompetent and is bugging you to just take the deal it's hardly going to seem like a sure thing.

I remember hearing about a crooked cop in NYC who was planting drugs on people. The plea deal people were getting was pretty lenient, and who would risk going to jail for a long time over some drugs, especially when the trial would be their word vs. a cop? Well, it ended up being an immigrant woman who could barely speak English who was probably a goody-two-shoes who had a totally naïve belief in the justice system. And she almost certainly lucked out. They ended up discovering the cop and others had done this hundreds of times.

One reform I would call for would be for an independent board to review cases that prosecutors want to plead out, that would disallow them in cases where they thought there was enough reasonable doubt that they might not get convicted.
It's not a slam dunk case against her. And probably the cost to the state in legal would exceed 1.5mm.
I'm sure prosecuting him in the first place wasn't profitable either. But it's an interesting problem. If the state goes after her, it's going to make other people who falsely accuse people of rape from ever coming forward and recanting.

On the other hand, if you think about it -- in some states the states are required to pay you hundreds of thousands of dollars for each year of false imprisonment. So if there was a dude who felt like he couldn't find work and was desperate, he could conspire to have a woman falsely accuse him of rape, then recant. She could sue, and get millions, then 'spend' all the money. Then, she could recant, and the guy would get out of jail with his name cleared and millions of dollars. Seems unlikely a scenario enough that it would never happen, and, I guess since the punishment would be jail time anyway they guy would still end up spending several years in jail. But I think a lot of people would chose to spend X years in prison for $X*800k.
We're bad at legally handling sexual assault. Rape-shield helps a lot but is far from perfect. Than again, no law is perfect. There will always be bad verdicts in any subject.
The problem, though is if you only view it through the prism of getting convictions from women's testimony. In that case, rape shield is obviously an improvement. But at the same time, it does seem like there could be issues that might be relevant about a person's sexual history. It seems like the argument is that a rape accuser should never have their integrity questioned. But if the case is just based on their testimony, then evaluating someone's credibility as a witness seems like it's something that's necessary in order to properly evaluate the situation.

On the other hand, if you wanted to rape someone, and knew a woman whose history would make her a less credible witness, you would know that you would almost certainly not be convicted. That was one thing that bugged me about the DSK threads. People were attacking the maid: not for her sexual history but just because she knew some people who were in jail and happened to have had an unusually amount of money in the bank.
But, now that we know more about DSK's sexual history, including all the other times he's been accused of rape, and other sex crimes, I think most people would agree it seems much more likely he's guilty.

But if we were being fair, should the accused's sexual history also be shielded? Because the trial is supposed to be about fairness and finding the truth, including fairness to the defendant.
Hincadenza, I'm pretty sure pleading no contest means that the case never went to trial and no jury saw it, so a big chunk of your argument is not relevant to this particular case, though it may be to other cases.
Except it would have been included when trying to figure out what your risk of conviction was. If you're thinking "I know I'm innocent, and everyone who knows her knows she's the kind of person who would do that, but the jury will never hear any of that, so I will probably be convicted if I got trial. So I should take the plea"
posted by delmoi at 2:39 AM on May 25, 2012 [4 favorites]


Speaking personally, if this had happened to me at that age, it would have ruined my career. I wouldn't be anywhere near where I am today, and I'd have a hell of a time just trying to be a normal citizen and getting a normal job 6+ years later. Suffice to say, it would have put a serious professional damper on the rest of my life, if not fully ruining it, for all regular intents and purposes.
In some states you do get a cash payout from the state if you are exonerated. It's really high in texas because they had so many exonerations in the past.

On the other hand I saw a thing about a guy on CNN who was sentenced to 20 years in prison for rape, mainly because he looked like a really shitty police sketch that happened to be haniging up in a bar. He'd never even met the victim or had any idea who she was. He was freed on DNA evidence after like 16 years. In Texas he'd get like $12 million dollars. But, because this was in WA, he got nothing instead.
posted by delmoi at 2:42 AM on May 25, 2012 [2 favorites]


There are no specific punishments for bearing false witness in this country. You can be accused by anyone of anything at any time, and then it's your job to convince the law and the court that you didn't do it. If you do prove you didn't do it, then nothing happens to the accuser. Nothing at all. Even if they lie under oath in a court of law - and many do - the penalties for perjury under normal circumstances are a pittance.
posted by halfbuckaroo at 2:44 AM on May 25, 2012


A big part of the problem here is the plea deal system. The whole point of a plea deal is that it's supposedly in your best interests to take it, rather than risk a trial. But the problem is the risk:reward ratio is exactly the same whether you're guilty or innocent. Sure, you could argue that an innocent person is more likely to win at trial, but if you have a public defender who seems incompetent and is bugging you to just take the deal it's hardly going to seem like a sure thing.

It's the scale of the difference offered by the American system of plea-bargaining that I find scary. Here you had a sixteen-year old offered a choice between a plea bargain for 6 years, and a possible sentence of 41 years to life in prison: the pressure on the innocent to plead guilty in such circumstances must be enormous.

And if an innocent person gambles on taking the case to trial and loses, they then get the double whammy of not being eligible for parole if they still insist they're innocent.
posted by Azara at 2:47 AM on May 25, 2012 [3 favorites]


"On the other hand, if you wanted to rape someone, and knew a woman whose history would make her a less credible witness, you would know that you would almost certainly not be convicted. That was one thing that bugged me about the DSK threads. People were attacking the maid: not for her sexual history but just because she knew some people who were in jail and happened to have had an unusually amount of money in the bank."

We were pointing out that it made her a problematic witness, not a bad person. No value judgements are implied. One could apply this logic of handily unreliable witnesses to any crime; someone who is a problematic witness is more likely to lose in a alleged victim #1 said/defendant said case. Are you suggesting that witnesses should not be examined for reliability by the defence?
posted by jaduncan at 3:04 AM on May 25, 2012


Considering the evidence that seems to have been available before the conviction, my first thought is it may well be Banks' original lawyers who end up facing the suit. I appears there was, strongly arguably at least, insufficient evidence to satisfy a properly directed jury beyond reasonable doubt. Of course, this all rather depends on what the nature of the advice given to Banks in relation to his plea was. Am I missing that in the links?
posted by howfar at 3:06 AM on May 25, 2012


This is to say you would probably have to weigh up two drawbacks; firstly the witnesses are under attack, but secondly (for example) if someone has a history of fraud it would seem very unfair to the defendant not to be able to examine that in a case where financial settlement was sought.

Who wins, delmoi?
posted by jaduncan at 3:06 AM on May 25, 2012


[Hincandenza, you are starting off on the wrong foot here with some more wildly over-the-top histrionic commentary. If you want to participate in this discussion, you need to dial it back or step away. Everyone: as always, let's not make it about one person; you guys can do this thing.]
posted by taz at 3:22 AM on May 25, 2012 [9 favorites]


This article from the LA Times says, "Also, the classmate Gibson first told about the alleged attack — via the note — said Gibson later admitted to making up the story so her mother wouldn't find out she was sexually active, attorneys said."

What she did was wrong, wrong, wrong. Also wrong: A fear in younger people that is so strong they would send a man to prison to hide sexual activity. I now wonder how old her children are.
posted by Houstonian at 3:37 AM on May 25, 2012 [6 favorites]


There are no specific punishments for bearing false witness in this country.
Uh, yes there are. Perjury, in court and false reporting to the police. She is obviously guilty of both.
We were pointing out that it made her a problematic witness, not a bad person. No value judgements are implied.
You obviously haven't actually read the threads. There were obviously people who thought he was actually innocent, or likely to be -- meaning that the maid was actually guilty of trying to frame him. They couldn't both be innocent: one must have committed a crime.

And here's the thing: with DSK, without knowing his sexual history, lots of people were willing to write the accuser off on the basis of things that had nothing to do with her sexual history at all. But, now he's facing prosecution in two other countries for various antics, including aggravated pimping and gang rape.

But, imagine how a his trial would go if a jury never heard about any of that? Or about the other accusations that (so far) haven't been charged? It seems like it would be more difficult to convict.

But on the flipside, why should the accused's sexual history be fair game, while the accuser's isn't? Obviously, part of the problem is that defense attorneys will try to make 'ordinary' sexual behavior sound salacious to the jury.

It seems to me that for a lot of feminists who write about this kind of thing, it seems that false accusations just never happen, or if they do happen they are rare enough that they can just be ignored as collateral damage or something (!?)

Anyway, it seems like in many cases there is just never going be any way to know for sure what happened. If you make the woman's credibility an issue, then essentially it would be 'legal' to rape any women who wouldn't make a credible witness at her own rape trial. On the other hand, women, such as the one in this case might falsely accuse someone of rape in order to make money via lawsuit, or for some other malicious reason.
This is to say you would probably have to weigh up two drawbacks; firstly the witnesses are under attack, but secondly (for example) if someone has a history of fraud it would seem very unfair to the defendant not to be able to examine that in a case where financial settlement was sought.

Who wins, delmoi?
Well, the nice thing is I'm not on a jury. But the problem is that there doesn't seem to be any solution to this problem.
posted by delmoi at 3:39 AM on May 25, 2012 [6 favorites]


Then again, how on earth did they get a conviction with only the testimony of a sociopathic teenager? Major jury fail on that one.

The conviction was aided by Mr. Banks' lawyer. I didn't read every one of the links, but none of the ones I did read identified that lawyer, or say whether he was a public defender, or what. I think that's a real failure of reporting. The lawyer's career ought to suffer, since his efforts were clearly not in Banks' best interest. I'm not ready to say it was legal malpractice, but I damned sure wouldn't hire that lawyer if I knew who he or she was.
posted by Kirth Gerson at 3:58 AM on May 25, 2012 [4 favorites]


Delmoi: I know we have laws on the books. This is part of the Florida law:

Are there any Defenses to False Police Report charges?

Defenses against false police report charges usually involve the elements mentioned above, especially those regarding “intent” and “knowledge”. That is, it may be a defense if the defendant lacked the required intent to disrupt criminal investigations, or if they lacked knowledge that the report was false.

Also, any conditions that negate the intention requirement, such as intoxication or insanity may also serve as a defense. A criminal lawyer may also be able to investigate other possible defenses based on the facts of the case.


With the right lawyer, they just say they were, "upset" or, "not thinking clearly at the time." The charges go away. In this case, the groundwork is already laid: She said she didn't want this to happen, but the grown-ups got involved and it got blown all out of proportion.

I don't think we'll ever see her successfully prosecuted. However, the attorney who advised her not to speak up should lose a license at the very least.
posted by halfbuckaroo at 4:12 AM on May 25, 2012


In the US, "justice" is letters in a row with no particular meaning.
posted by tommasz at 4:50 AM on May 25, 2012 [1 favorite]


If the state goes after her, it's going to make other people who falsely accuse people of rape from ever coming forward and recanting.

This wasn't just a false accusation; it was a false accusation and then a million-dollar settlement with someone else. I think it might be possible to undo the settlement while emphasizing that her recanting is the only thing working to ameliorate the anger of the justice system at her.
posted by mediareport at 4:51 AM on May 25, 2012 [1 favorite]


I might go and and try and process why his lawyer suggested be plead No Contest some more.

I think it's quite simple: The job of his lawyer is to get the best result possible, which means, as few years in jail as possible.
His lawyer presumably looked at the evidence and made a prediction on how the case will go under the two conditions:
1. Plead no contest: 6 years
2. Plead innocent: 41 years to life

This is not about "the truth". It's about minimizing jail time.
There is no evidence that the lawyer didn't make the right decision here.
posted by sour cream at 4:52 AM on May 25, 2012 [5 favorites]


With the right lawyer, they just say they were, "upset" or, "not thinking clearly at the time." The charges go away.
Only if by "go away" you mean, "you can make this argument in court and if you can convince a jury that it's true, then they may vote to acquit". That's what "Defense" means, something you can bring up in court and maybe convince a jury of.

And does not mean "If I was thinking right, I would not do this." but rather "I did not intend to do this at the time" In other words, if you have some 'crazy' thought and then decide to act on it, you are still intending to do it, even if you will regret it later.

Otherwise, no one could ever be convicted for a crime they committed drunk or on drugs. People go to jail for things they do on PCP, which clearly prevents them from "thinking right".

In fact, I'm pretty sure the vast majority of laws require intent. Including rape, and certainly murder. I can't imagine "I wasn't thinking right" could ever work as an actual defense, like, ever. They would have to be completely certifiably insane and get an insanity deal.

Intent is usually stuff like, you were cleaning your gun and it went off and shot your spouse. Intent in this case would basically amount to not knowing that something was false - or maybe a situation where you're talking to an undercover cop or something like that.

Plus, as far as intent goes, she clearly made the statements in order to change the outcome of the investigation: specifically she clearly intended the police to think he was guilty of raping her, and she clearly had the knowledge that it was false.

Anyway, though, the problem is that if you charge her, you discourage other people from coming forward.
This is not about "the truth". It's about minimizing jail time.
There is no evidence that the lawyer didn't make the right decision here.
Right, this is exactly the problem with the plea system in the U.S. It can be entirely rational to plead guilty when you're in fact innocent.
posted by delmoi at 4:54 AM on May 25, 2012


The lesson here is: if you didn't do it, don't take a plea and FIGHT LIKE HELL.
posted by Renoroc at 5:04 AM on May 25, 2012


The lesson here is: if you didn't do it, don't take a plea and FIGHT LIKE HELL.

I don't know about that. If he were in prison for 40 years he certainly wouldn't be playing football competitively upon release. There's no guarantee he would have won the case.
posted by snofoam at 5:15 AM on May 25, 2012 [2 favorites]


There is no evidence that the lawyer didn't make the right decision here.

I'm not sure that's entirely accurate, on the facts as presented to us. There was apparently no forensic evidence of intercourse, on account of the fact that there was no intercourse. As I said, I'm not sure how a properly directed jury can do anything but acquit where all you have is an essentially unsupported claim of rape opposed by a denial. The criminal standard of proof is beyond reasonable doubt.

There may, of course, be information that has not been presented that casts the advice given to Mr Banks in a different light.
posted by howfar at 5:16 AM on May 25, 2012


Plea bargaining is a rotten system.
posted by pracowity at 5:19 AM on May 25, 2012 [1 favorite]


Is there precedent for reversing civil suits like this when the plaintiff has been deceptive? Or will the school district have to file a new suit to get (some of) its money back?
posted by audi alteram partem at 5:20 AM on May 25, 2012


NOTE: I say this not out of disrespect to the case itself, but out of a desire to give anyone who may be feeling heated or tense a bit of a chuckle --


...So, who wants to take bets on how long before this gets turned into an episode of Law And Order SVU?
posted by EmpressCallipygos at 5:23 AM on May 25, 2012 [2 favorites]


There's the old saying that hard cases make bad law. In other words, if you start trying to massage the CJ system to produce better outcomes in certain kinds of difficult cases, you end up screwing the pooch on a greater number of less difficult cases.

In this case, the false-accuser needs to face negative consequences commensurate with depriving a man of six years of freedom. Just 'giving back the money' doesn't do that. That just takes her back to the home plate where she started.

The argument that she should be left alone because to do otherwise would dissuade actual rape victims from coming forward is one of those 'hard cases make bad law' examples. For a start, the only people who should be put off would be people making provably false allegations. But more importantly the victim and accuser should be on a level playing field. This case absolultely shows that false allegations of rape do happen, and for that reason it's a crime which should be tried using the same standards of evidence we use in any other case, even if that means that the ratio of successful prosecutions to guilty men is lower than it might be otherwise. Because the alternative is Brian Banks.
posted by unSane at 5:26 AM on May 25, 2012 [5 favorites]


And plea bargaining is indeed a horrible fucking system. It corrupts both ends of the deal: encourages prosecutors to over-charge (or threaten to) and defendants to cop to stuff they didn't do.
posted by unSane at 5:28 AM on May 25, 2012 [1 favorite]


Guys, the moral hazard argument works both ways. If she isn't punished for her false accusation, it sends a message that you can safely send someone to jail on false testimony with no chance of harm to yourself if you change your mind later. On the other hand, sending her to the big house would be a deterrent against making a false accusation in the first place--which is what we really out to be stopping. Better to prevent a false imprisonment than to easily correct it.

Plus, if we punish her, someone who did a horrible thing pays a penalty for it. To me, the moral hazard angle is a wash at best, so let's take the route that ends in her being held responsible.

I would love a law that says if you are responsible for knowingly sending an innocent person to prison, your minimum penalty is the amount of time that person served before release.
posted by Pater Aletheias at 5:42 AM on May 25, 2012 [13 favorites]


As I said, I'm not sure how a properly directed jury can do anything but acquit where all you have is an essentially unsupported claim of rape opposed by a denial.

Ok, I'm not a lawyer, but how did this ever reach the stage where a plea gets entered? Is the testimony of one witness with some (documented in the PDF) pretty glaring inconsistencies and total lack of physical evidence really enough to convince a DA to pursue charges?
posted by adamdschneider at 5:43 AM on May 25, 2012 [1 favorite]


This isn't over for the accuser.

It's not a slam dunk case against her. And probably the cost to the state in legal would exceed 1.5mm.
posted by stbalbach at 12:54 AM on May 25


The state should go after her and the settlement even if that's the case
posted by knoyers at 5:59 AM on May 25, 2012 [2 favorites]


It's not a slam dunk case against her.

Why? The civil case against the state involved lying about physical and mental harms for pecuniary gain; quite aside from the issue of perjury it is straight up fraud.
posted by jaduncan at 6:09 AM on May 25, 2012


There is no evidence that the lawyer didn't make the right decision here.

There isn't? Your definition of "the right decision" certainly is different from mine.
posted by Kirth Gerson at 6:14 AM on May 25, 2012


Cripes, what a nightmare---I mean, imagine spending your years from 17 to 25 in jail. How much life you'd miss out on! How much growing up!

Whether his lawyer was incompetent is harder to say---if it really was just a he said/she said with no hard evidence (or rather, with the only hard evidence being evidence that some sexual contact happened), then he may well have made the right call given the awful circumstances.
posted by ThatFuzzyBastard at 6:14 AM on May 25, 2012


Gibson should go to jail and be personally liable for triple damages. She is a lying POS.
posted by spitbull at 6:18 AM on May 25, 2012


One of the other problems here is that the mechanisms of punishment outside the judicial system aren't necessarily appropriate in this case.

For example, severe ostracism of persons wbo falsely report crimes seems appropriate to me in many cases: think of attempts to collect on insurance policies via false reports of theft or arson. Sex crimes offenders are (rightly, IMO) ostracized in many instances.

Rape and sexual assault cases, like domestic violence cases, are not a good target for this sort of response because the harms to actual victims who cannot meet evidentiary standards (another problem unique in scale to this area of the law) are hugely disproportionate. The harm done may actually be worse in terms of an undesirable deterrent effect than the harm produced by judicially administered punishments.

I'm sort of conflicted about the whole thing - no doubt the false accuser owes her victim, morally, an astronomical sum of money and whatever else can compensate for years taken away. On the other hand, going hammer-and-tongs on this one will only compound the harm already done.

In conclusion, fuck people.
posted by Inspector.Gadget at 6:25 AM on May 25, 2012 [1 favorite]


I'd root for a penalty up to and including the death penalty...
...This is insane.
...the penalties for perjury under normal circumstances are a pittance.


I don't ever root for the death penalty, but effectively this is a kind of kidnapping by proxie. Kidnapping is a capital offence. Yes, kidnapping by definition does not involve legal authority, but here the legal authority was manipulated by a third party as a weapon, to obtain money. This is more than just perjury -- at least conspiracy.
posted by StickyCarpet at 6:27 AM on May 25, 2012 [3 favorites]


Two things occur to me:

1. Still, false rape accusations are incredibly rare. It's worth saying that, because one documented false accusation is perpetually used to undercut any number of stories of sexual assault.

2. How much of the readiness to prosecute and imprison on dodgy evidence has to do with the fact that the guy is black? And a big strong guy? I once had a student who was a tall, strong African-American kid, and he got regular racism plus an extra dose. He was actually a very sweet-natured kid, but white people looked at him and saw a big, dangerous criminal. It was horrible to realize how much that was shaping his life and his perceptions of himself.

I suppose it's a depressing truth that as it becomes less acceptable to slut-shame rape victims, and it becomes less acceptable to assume that they are always lying, it becomes more possible and likely that people will lie about having been assaulted and then get away with lying. Which then means that we're back to square one, with the MRAs and so on talking about how women always lie about rape, etc etc.
posted by Frowner at 6:38 AM on May 25, 2012 [8 favorites]


Brian Banks is never going to play professional football, BTW.
posted by weinbot at 6:39 AM on May 25, 2012 [1 favorite]


false rape accusations are incredibly rare.

Don't want to be fighty or anything, but how do we know that? I'm assuming there's been research done on this. Does anyone have a handy and easily digestible link?
posted by (Arsenio) Hall and (Warren) Oates at 6:50 AM on May 25, 2012 [4 favorites]


And, just to clarify, I'm not disputing the claim. I just don't like the ambiguity of "incredibly rare". Can we quantify that?
posted by (Arsenio) Hall and (Warren) Oates at 6:51 AM on May 25, 2012


Something tells me the mom of the accuser is behind this.

Could it be this:

“‘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.’”

Still, false rape accusations are incredibly rare.

"Incredibly rare" is synonymous with "I just like to make shit up that supposrts what I believe in".

No matter how rare, they're not as rare as innocent convicted rapists being exonerated.
posted by You Should See the Other Guy at 7:08 AM on May 25, 2012 [5 favorites]


But on the flipside, why should the accused's sexual history be fair game, while the accuser's isn't? Obviously, part of the problem is that defense attorneys will try to make 'ordinary' sexual behavior sound salacious to the jury.

Because a history of rape is not the same as their sexual history - that's apples and oranges. Having a history of the crime a person is accused of is absolutely relevant - having a history of consensual sex is not.

false rape accusations are incredibly rare.

Don't want to be fighty or anything, but how do we know that? I'm assuming there's been research done on this. Does anyone have a handy and easily digestible link?


This wikipedia entry seems pretty good.
posted by lunasol at 7:08 AM on May 25, 2012 [6 favorites]


This wikipedia entry seems pretty good.

Indeed, thanks.
posted by (Arsenio) Hall and (Warren) Oates at 7:12 AM on May 25, 2012


This wikipedia entry seems pretty good.

Yep, I was just about to link to that too.

Summary: somewhere between 2% and 8%, although some (possibly flawed) studies put the occurrence much higher.
posted by unSane at 7:12 AM on May 25, 2012


The problem is our desperate need to come to the understanding that women are in full and complete ownership of their own bodies, and that there should be no shame attached to whatever decisions they choose or don't choose to make with them.

Well, she used her body to falsely convict an innocent man and then extract a large settlement from an innocent third party.

Maybe there could be some shame for that ?
posted by Pogo_Fuzzybutt at 7:12 AM on May 25, 2012


I wouldn't call 8% "incredibly rare". Yes, I am aware that is the high bound.
posted by adamdschneider at 7:14 AM on May 25, 2012 [1 favorite]


I wouldn't call 2% incredibly rare, either.
posted by Kirth Gerson at 7:27 AM on May 25, 2012 [2 favorites]


... she used her body to falsely convict an innocent man ...

This doesn't make any sense at all, Pogo. Did you read the links at all, or the habeas petition? You seem to be imagining some kind of scenario that's totally different from what they're describing, which is ordinary perjury, not some kind of entrapment.
posted by nangar at 7:28 AM on May 25, 2012 [1 favorite]


From the Wikipedia article:

He argues, for instance, that in addition to their small sample size the studies by Maclean (1979) and Stewart (1981) used questionable criteria to judge an allegation to be false. MacLean deemed reports "false" if, for instance, the victim did not appear "dishevelled" and Stewart, in one instance, considered a case disproved, stating that "it was totally impossible to have removed her extremely tight undergarments from her extremely large body against her will".

This is insane, and probably why the two studies placed the frequency of false reports at 47% and 90%. How did the MacLean and Stewart papers ever get published? Can some knowledgable mefite fill me in on how law journals review submissions?
posted by compartment at 7:40 AM on May 25, 2012 [3 favorites]


There's a bit more information in the LA Times blog.
posted by rdr at 7:42 AM on May 25, 2012



This doesn't make any sense at all, Pogo. Did you read the links at all, or the habeas petition? You seem to be imagining some kind of scenario that's totally different from what they're describing, which is ordinary perjury, not some kind of entrapment.

I'm sorry, I don't understand.

She used her body - and more to the point, the (false) claim of violation of same - to imprison an innocent man. Then for the bonus round she obtained a large sum of money form a school district that didn't actually have anything to do with it.

Should she feel shame for that ? I think she should.
posted by Pogo_Fuzzybutt at 7:44 AM on May 25, 2012


It's a shame that this woman will suffer no legal consequences for her crimes. However, it is not surprising. The woman who falsely accused members of the Duke lacrosse team of raping her was never charged for her crimes in that matter.
posted by DWRoelands at 7:46 AM on May 25, 2012


I wouldn't call 2% incredibly rare, either.

I wonder what the false report rates are for other violent crimes, but my google-fu is failing me. Anyone?

Also, keep in mind that only 9% of rape cases are prosecuted (according to RAINN, who also say that only 46% are reported). Please note that I am not saying false reporting isn't a problem (and the case here is absolutely horrific), but it must be looked at in the context of the fact that vast majority of rape cases are never even prosecuted.
posted by lunasol at 7:46 AM on May 25, 2012 [3 favorites]


The lesson here is: if you didn't do it, don't take a plea and FIGHT LIKE HELL.
How is that "the lesson"? Do you think that, just because he was actually innocent, he would have won the case if it had gone to trial?

Because there are lots of cases where the innocence project has gotten people out of jail who had trials.
posted by delmoi at 7:52 AM on May 25, 2012 [1 favorite]


Please note that I am not saying false reporting isn't a problem (and the case here is absolutely horrific), but it must be looked at in the context of the fact that vast majority of rape cases are never even prosecuted.

Can you be more explicit about what you are saying?
posted by unSane at 7:54 AM on May 25, 2012


Saying false accusations are "incredibly rare" is as hyperbolic as saying that they happen often. While it's obviously very difficult to quantify false accusations, as opposed to merely "unfounded" accusations, two to eight percent sounds about right.

This interesting study from the journal Violence Against Women, as discussed in this decidedly anti-rape, pro-feminist blog, found that 5.9% of rape accusations at a university police station were false. That's a small percentage, but it's hardly "incredible".

By way of contrast, Jews (like myself) are about 2% of the US. It would be comically inaccurate to say that Jews are "incredibly rare" in the US. Asian-Americans (like my SO) are about 5% of the US. That's even less "incredibly rare."

...

What happened here was terrible. It's not indicative of any epidemic of false rape accusations, because there is no such epidemic, but it is terrible.

I'm not sure what broader lesson we can take from cases like these. If someone wants to lie in court, then they'll lie in court, whether they're lying about rape or anything else.

Realistically speaking, I'm not sure how likely it is that anyone will get into actual trouble for this. What could you actually prove?
posted by Sticherbeast at 8:02 AM on May 25, 2012 [4 favorites]


I wonder what the false report rates are for other violent crimes

From that same Wikipedia article: "The average rate of unfounded reports for Index crimes is 2%."

So even the lowest instance of false accusations of rape makes it no more rare than for all violent crimes*.

* From the report referenced in the Wiki:
The Crime Index is composed of selected offenses used to gauge fluctuations in the overall volume and rate of crime reported to law enforcement. The offenses included are the violent crimes of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault and the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.
posted by Kirth Gerson at 8:02 AM on May 25, 2012


Pogo, I think people are reacting more to your choice of words than anything else -- the expression "she used her body to convict an innocent man" is rather disconcerting.

I mean, I know what you're getting at, but that word choice is leading people to think that you think that she deliberately seduced him because she had the idea of making a quick buck off him all along, like she sees sex as some sort of weird ATM machine. And people are pointing out to you that the actual facts are more complicated and subtle than that.
posted by EmpressCallipygos at 8:12 AM on May 25, 2012 [2 favorites]


Can you be more explicit about what you are saying?

I'm saying that it's a serious problem that so few rape cases are reported or prosecuted, and this is partially caused by victims feeling that they won't be believed.


From that same Wikipedia article: "The average rate of unfounded reports for Index crimes is 2%."

Ah, thanks!
posted by lunasol at 8:17 AM on May 25, 2012


the actual facts are more complicated and subtle than that.

I would argue that while they are more complicated, there's nothing very much subtle about them - she was greedy and she was selfish and she was afraid and she let those emotions out-weigh what was right - and I don't see much subtle about that.
posted by kbanas at 8:18 AM on May 25, 2012


Man, I have to wonder about this girl's home life, if she was so afraid to tell her mother she'd been making out with a guy that she'd invent a rape story. Reading over the legal document, there's such emphasis placed on how she was a virgin before this "rape." Ugh. Sad.
posted by PhoBWanKenobi at 8:20 AM on May 25, 2012 [1 favorite]


I'm saying that it's a serious problem that so few rape cases are reported or prosecuted, and this is partially caused by victims feeling that they won't be believed.

Sure. And that is not helped by actual false allegations, is it? It's arguable that if the penalties for provably false allegations were more strictly enforced, then there would be less suspicion that people who came forward to make allegations were lying.
posted by unSane at 8:22 AM on May 25, 2012 [1 favorite]


* not just for rape, I mean, for all false allegations, consistently
posted by unSane at 8:23 AM on May 25, 2012 [1 favorite]


Man, I have to wonder about this girl's home life, if she was so afraid to tell her mother she'd been making out with a guy that she'd invent a rape story. Reading over the legal document, there's such emphasis placed on how she was a virgin before this "rape." Ugh. Sad.

I think Brian Banks would emphatically agree with you.
posted by kbanas at 8:25 AM on May 25, 2012 [1 favorite]


From that same Wikipedia article: "The average rate of unfounded reports for Index crimes is 2%."

So even the lowest instance of false accusations of rape makes it no more rare than for all violent crimes*.


Not all unfounded accusations are necessarily false accusations. If someone had misremembered important details about their attack and/or misidentified their attacker, then that could wind up an unfounded accusation, despite the fact that the accuser was not lying. If someone had fully recanted their accusation and the State chose to not go forward with the charges, then that could be considered an unfounded accusation, even if the incident had actually occurred.

On the other hand, a false accusation can wind up falling outside the "unfounded" category. Banks' case certainly would have, except for the fact that the accuser has unofficially recanted. Officially, it's still very much a conviction.

Quantifying false accusations is very difficult. It's like the graph from Brass Eye charting "CRIMES WE KNOW NOTHING ABOUT."
posted by Sticherbeast at 8:29 AM on May 25, 2012 [6 favorites]


Okay, "Subtle" was a bad word choice. Not sure what a better counterargument for the "she used her body to get money" accusation would be, though.
posted by EmpressCallipygos at 8:29 AM on May 25, 2012


Okay, "Subtle" was a bad word choice. Not sure what a better counterargument for the "she used her body to get money" accusation would be, though.

Yeah, I agree with you in that regard. That idea suggests some sort of malice and forethought - like, I don't get the sense she had plotted some sort of trap... I get the sense that the situation just got the better of her, and she did what some of us do every day (to a much lesser degree) - she took the path of least resistance. Obviously, it was the wrong thing to do - I have to imagine that she had opportunity after opportunity to stand up and do the right thing.. and it's heartbreaking that she didn't have the gumption to do so.. but no, I don't think she was like, out to get him.
posted by kbanas at 8:35 AM on May 25, 2012


Sure. And that is not helped by actual false allegations, is it? It's arguable that if the penalties for provably false allegations were more strictly enforced, then there would be less suspicion that people who came forward to make allegations were lying.

It certainly is not helped by false accusations - but it's also not helped by the fact that, just by the nature of the two beasts, false accusations get so much attention, but virtually no one knows about cases that are not reported.

It's arguable that if the penalties for provably false allegations were more strictly enforced, then there would be less suspicion that people who came forward to make allegations were lying.

Well, here's the problem with that - it's very common for rape victims to have a lot of doubt about what happened in the immediate aftermath. And often, there's not a lot of evidence to prove that it was rape and not simply consensual sex. So if a victim is already uncertain, plus they fear that being found to have brought a false claim could lead to jail time, I imagine that many would just decide it wasn't worth it.
posted by lunasol at 8:38 AM on May 25, 2012 [4 favorites]


By way of contrast, Jews (like myself) are about 2% of the US. It would be comically inaccurate to say that Jews are "incredibly rare" in the US.

Your profile says you live in Brooklyn, so maybe you have a skewed view of this. Take it from a Jewish guy in Wisconsin; Jews are incredibly rare in the US. But of course you still try not to schedule an important meeting on Yom Kippur, because while Jews are incredibly rare, you dont get to make policy that assumes that Jewish people literally don't exist.
posted by escabeche at 8:39 AM on May 25, 2012 [2 favorites]


That idea suggests some sort of malice and forethought - like, I don't get the sense she had plotted some sort of trap... I get the sense that the situation just got the better of her, and she did what some of us do every day (to a much lesser degree) - she took the path of least resistance.

Yeah, that's my sense, too. I can imagine being absolutely terrified and desperate to let my parent know at 15 that I'm no longer a virgin, and concocting an elaborate story to cover up the truth. But then your mother wants to sue the school. And you have to throw an innocent boy under the bus, but there's a huge amount of money on the line, like lottery levels. Is it greedy? Is it wrong? Of course it is. But it's also the kind of lie that can quickly snowball out of the control of a ninth grader.
posted by PhoBWanKenobi at 8:41 AM on May 25, 2012 [1 favorite]


it's very common for rape victims to have a lot of doubt about what happened in the immediate aftermath.

I can absolutely understand this. Because rape is such a horrific violation, I'm sure there are all sorts of mental checks and protections that go into place by way of coping mechanisms to help people deal with the immediate aftermath of such a terrible event. I can't even imagine.

But, so, really, in most cases, two people know if a woman was raped - the attacker and the victim. I guess my honest question is, like, if a woman is unsure - if there's some sort of sexual encounter and after that event she has that question in her mind, and she has that doubt - what is the thing to do? Doubt suggests that she could be wrong. Doubt also suggests that she could be right, but she's letting social pressures or other factors dissuade her from the truth.. what should she do? She could send an innocent person to jail. Or she could put a dangerous person behind bars. How do you deal with that doubt that often accompanies the event, I guess?
posted by kbanas at 8:47 AM on May 25, 2012


Hmm. I thought they were both a bit older. Now I realize that Wanetta Gibson was just 15 (and Banks was just 16). I don't know how hard you can come down on a teenager who got in over her head and didn't know how to back out, especially after her mother sued for and won a big pile of money thanks to her lie. And when she was old enough to know better (she's about 21 now?), she did eventually turn things around. She didn't hand back the money, of course, but how is she supposed to do that? Write a check to the school system with a "Sorry!"on the memo line? She fears being told to pay back the money because (I'm guessing) she can't pay back the money--it's long, long gone, maybe mostly to mama.

I'd still give her five years and two months of community service just to make sure something good comes out of this shit (and to make sure she knows what five years and two months feels like), but what else can you do to her for something she did when she was a 15-year-old schoolgirl?
posted by pracowity at 8:50 AM on May 25, 2012 [4 favorites]


Ok, I'm not a lawyer, but how did this ever reach the stage where a plea gets entered? Is the testimony of one witness with some (documented in the PDF) pretty glaring inconsistencies and total lack of physical evidence really enough to convince a DA to pursue charges?

Look at some of the other cases covered by the Innocence Project and you'll have no trouble believing it.

Here in Illinois we've had a staggering number of people let off death row since DNA testing became available. When you read about what sent these people to prison, it is mind-blowing. The eyewitness testimony that turns out to be wrong; the coerced confessions, the list goes on.
posted by BibiRose at 8:52 AM on May 25, 2012


I'm really interested in all of the competing cultural narratives this case brings up, and how they're changing my perception of it.

First there's a case of a young woman accusing a high school football player of raping her. A lot of times in the US, these cases end up as a horrific smear campaign against the young woman, even in cases (unlike this one) where there is a lot of evidence against the man. Take the case where a young woman was required to continue as cheerleader, cheering for the man who raped her.

So I hear a lot about these cases, and how the women are assumed to be lying, because of certain parts of our culture's love of football.

Then of course you have the truth, that in this case, there was no evidence, and the football player was in fact innocent.

Then you have the racist narratives of black men as rapists. The racist narratives of all young black men as criminals.

There's also the narrative of USians as litigious, greedy people. Which ties into the narratives of women as gold-diggers, or using rape allegations just to "ruin" a good man, a good athlete, or to extort money and public sympathy. Competing with this is the truth that even in cases with lots of evidence pointing to rape, (alleged) rape victims are still assumed to be lying, greedy whores.

Then you have our culture's creepy preoccupation with women's chastity and virginity.

And most interesting to me, there's the tendency, on both extremes, to take shocking exceptions as proof of a rule - my tendency to assume that this story, while chilling and sad, is an exception to the rule that rape is under-reported, that many rapists get away scot-free, that many rape victims are blamed and ostracized, and that false accusations are rare - while others are taking this as evidence that false accusations are rife, ruin the lives of many men, and so on.

Fascinating all around.
posted by fireflies at 8:53 AM on May 25, 2012 [14 favorites]


I don't really think the frequency of false rape allegations, whether 2 or 5 or 8 percent, is really the most interesting part of this story, in terms of the larger importance for the criminal justice system (and I agree with the above poster who pointed out the problem with these studies, that cases like this would have been classified as "not false"...until it wasn't). The much bigger issue, it seems to me, is the incredibly powerful incentive massive American sentences create for people to plead guilty to crimes they didn't commit or to invent false testimony as part of a plea deal. It's understandable that a criminal justice system would want to offer some benefit to pleading guilty, both because it might show genuine remorse but also so it doesn't put the state and the complaining witness through the burden of a trial. But it's hard to imagine how someone could view '41 to life' as an appropriate sentence but turn around and then offer 5 years as also appropriate.

This isn't exclusively, or even primarily, an issue in rape cases. Look at this recent case from Doug Berman's excellent sentencing policy blog:
Within days of a drug-related slaying in suburban Cleveland, six men were indicted on charges that carried the possibility of a death sentence. Six months later, all had been allowed to plead to lesser charges, including four who received probation and never went to prison.
I mean, that's an unusual case along these lines, but the mere fact that it was possible to threaten someone with the death penalty and then offer probation indicates a serious, serious problem in the criminal justice system. I have zero confidence that these people who pleaded guilty in this case did anything wrong--how could I? This is particularly acute when prosecutors can manufacture enormous mandatory sentences, such as in federal drug cases. In doing this, Americans have let power shift from judges to prosecutors (often elected, and certainly ambitious), and it's shameful.

Unfortunately, I guess I'm saying there isn't really an easy solution. We'd like to believe we can identify the 'bad people' and lock them away forever but not capture any innocents. We can't, and until we recognize that it's possible to overpunish for even serious crimes--and we do it frequently in America--we should not have much confidence that even people who plead guilty to a crime really are guilty.
posted by dsfan at 8:53 AM on May 25, 2012 [18 favorites]


The lesson here is: if you didn't do it, don't take a plea and FIGHT LIKE HELL.

I don't know about that. If he were in prison for 40 years he certainly wouldn't be playing football competitively upon release. There's no guarantee he would have won the case

Yeah, The West Memphis Three is only one horrific example of how not taking a plea can result in innocent people spending years behind bars, too.

The girl who did this acted abominably, no question. And I think there should at least be a civil suit brought against the person who sued the school, which is her Mom. I feel that is fair, and justified.

I have teenagers. They're good kids, but they aren't perfect; they've made mistakes and we've worked through them. I cannot imagine raising children so afraid of my reaction they would make up a story of kidnapping and physical assault to cover up their behavior. This girl, morally bankrupt as the damning statements she made show her to be, did not grow up in a bubble.

We know that an abusive childhood increases the likelihood of a child becoming an abuser. For those that don't, the lives they lead are nonetheless seriously affected by that abuse--some perfectly good people end up with years of therapy, serious relationship problems, and a fear of ever becoming parents themselves because of the childhood abuse they suffered.

I don't think it's out of line to suggest that if a minor does something as awful as this girl did, there is something seriously dysfunctional going on in that household. It could simply be a system of enabling (I feel that's what happened in the Casey Anthony situation, where a sociopathic compulsive liar was enabled by her mother). That's at least somewhat understandable in that loving parents' first inclination is generally to protect their kids.

But this Mother went one step further and, after the supposed kidnapper/rapist had already been sentenced, sued the school for a huge monetary judgment. And I may be a suspicious bastard, but I'd be willing to bet that money was not all put in a trust for the daughter's education.

So I'd like to see a civil case against Mom for the monetary settlement. And while I'm wishing, I want that young woman and her mother to be sentenced to court-mandated therapy sessions, too, individually and together, because I do NOT want to see this cycle repeating itself when the accuser's kids come of age.
posted by misha at 8:54 AM on May 25, 2012 [10 favorites]


Take the case where a young woman was required to continue as cheerleader, cheering for the man who raped her.

Wow, what? The law can force you to be a cheerleader?
posted by Hoopo at 9:28 AM on May 25, 2012


my tendency to assume that this story, while chilling and sad, is an exception to the rule that rape is under-reported, that many rapists get away scot-free, that many rape victims are blamed and ostracized, and that false accusations are rare - while others are taking this as evidence that false accusations are rife, ruin the lives of many men, and so on.

Thanks, fireflies, for speaking a few of my own thoughts for me (and more eloquently than I would have). Fact is, this is a tragically complicated and fucked up situation, and all the more so because the root of it is the emotional, moral, sexual confusion of a fifteen year old. And here I'm already betraying my own "tendency".

Speaking of which. This, from houstonion, is the heart of the issue as far as I'm concerned:

Also wrong: A fear in younger people that is so strong they would send a man to prison to hide sexual activity.

A fear so strong that nothing true can grow from it but confusion, deception, tragedy, injustice.
posted by philip-random at 9:31 AM on May 25, 2012 [2 favorites]


Wow, what? The law can force you to be a cheerleader?

Heh, yeah, I phrased that awkwardly. The young woman was already a cheerleader, and refused to cheer for the man who raped her. She was told otherwise she would be kicked off the squad and withdrawn from Homecoming activities. More info here and here.

Also, correction from what my previous comment implied, he played basketball, not football.
posted by fireflies at 9:38 AM on May 25, 2012 [2 favorites]


I have no sympathy at all for Gibson. I hope she gets taken to the cleaners, and then to jail, even if it costs more than the state would win back in a settlement. Yes, she probably had a seriously messed-up childhood. But it took her how long to come clean on this? How much of that time did she spend as an adult?

She was old enough to decide to have sex with this guy at the time, and was old enough to decide to destroy his life rather than come clean on it. She had years to think about it afterward. I feel awful for him.
posted by scaryblackdeath at 9:42 AM on May 25, 2012 [2 favorites]


How much of that time did she spend as an adult?

Three years. She's only 21 now. Also "old enough to decide to have sex" only means "old enough to be sexually active". If that somehow implies maturity and wisdom, then we would call children as young as twelve "adults". Which is absurd.
posted by oneirodynia at 9:57 AM on May 25, 2012 [2 favorites]


She was old enough to decide to have sex with this guy at the time, and was old enough to decide to destroy his life rather than come clean on it. She had years to think about it afterward. I feel awful for him.

She didn't have sex with him--they made out in a stairwell. So she wasn't "old enough to decide to have sex with this guy at the time." Did you read the article? She also talks pretty extensively about why she lied.
60. Gibson said that she and Banks were “making out pretty heavy” on the day of the alleged rape. Gibson said that Banks did not force her to have intercourse or “anything like that.” (Exhibit Y, p. 4.) Gibson said that they were just playing around, being curious about sexuality, and that the adults got involved and blew it all out of proportion. (Exhibit Y, pp. 6-7, 11.) She said the adults “put stuff in [her] head.” (Exhibit BB, pp. 8-9.) The accusations she made that led to Banks’ conviction was “really honestly not true . . . it wasn’t true at all.” (Exhibit BB, p. 4.)

61. When asked if Banks raped her, Gibson said, “no, he did not rape me.” (Exhibit Y, p. 15.) When asked if Banks kidnaped her, Gibson said, “no.” (Exhibit Y, p. 5.) Gibson said that a lot of the accusations made against Banks were false. (Exhibit Y, p. 5.) However, when Gibson tried to voice her concerns to her civil attorney, the attorney told her, “Don’t say nothing. Like don’t talk at all. Let them do what they gonna do.” (Exhibit Y, p. 11.) By that time, Gibson said that the money was the real issue. (Exhibit Y, p. 15.)
posted by PhoBWanKenobi at 10:02 AM on May 25, 2012 [5 favorites]


I don't hate Gibson, myself. She made a mistake as a child, and to her credit is trying to reconcile it in some way which doesn't destroy her.

Leaving the milk out overnight is a mistake. Not locking the front door when you leave is a mistake. Putting a child (your definition) into prison for years is not a mistake, it's a heinous crime, on par with committing the rape itself.
posted by Justinian at 10:04 AM on May 25, 2012 [8 favorites]


Also it seems she's recanted her story before she was even legally an adult: "Approximately two years after the alleged rape, Gibson also recanted her testimony to Sharell Washington. " So she would have been 17 at the time.
posted by PhoBWanKenobi at 10:04 AM on May 25, 2012 [4 favorites]


Heh, yeah, I phrased that awkwardly.

Phew! Thanks, for a minute I thought the American legal system was even stranger than I ever imagined.
posted by Hoopo at 10:15 AM on May 25, 2012


I read the Statement of Facts, and even at the time the girl not only contradicted her earlier accounts in court several times, she also first denied Banks had done some things and then, after a break, came back and said yes, actually he had. She also told her attorney things were getting blown out of proprtion, etc.

I think she was scared, and did something really stupid, and did not realize how hurtful this was to Brian Banks until it was too late. I don't excuse her for any of that, but I am disturbed that the adults pushing her to prosecute led her down that path. What is their excuse for such poor judgment?

More recently, Gibson has backed off her recantation, Brooks said. Nevertheless, when presented with the Innocence Project's findings, Los Angeles County prosecutors agreed that the case should be thrown out.

"It's not our job to maintain a conviction at any cost," Deputy Dist. Atty. Brentford Ferreira said. "It's our job to do justice."


Thank goodness they didn't lose sight of what really mattered here!
posted by misha at 10:19 AM on May 25, 2012 [1 favorite]


I was recently called to serve on a jury, dismissed with a peremptory challenge, but the facts of that case so far as I could suss out from the things said during voire dire were that: There are a whole bunch of narratives we can write given these premises. I'm super sympathetic to the notion that rape is under-reported, for one thing because I've heard "I felt uncomfortable and unsafe, so I gave him a blow job to get rid of him". I'm also sympathetic to the notion that regrets get reported as rape far too often. I like the idea that people have the right to consent to sex when they're drunk, but I also think it's possible to take advantage of that. This could be "predator takes advantage of a situation", but even if the facts are exactly as reported it could also be "drunk girl pissed off that the taxi fare costs what it did takes a swing at the driver and stumbles into him, and he catches her and keeps her from hurting herself further".

So I have really mixed feelings about being tossed off the jury, on the one hand I'm glad to not be the one who tosses an innocent man in jail, or who ignores the testimony of a wronged woman, on the other hand I hope my peers gave the case the deep thought and investigation it deserved.

The prosecutor can't back down and say "your case has holes", because then the next DA election cycle is going to be full of "doesn't care about rape victims" rhetoric, in fact he (in this case) has to do his best to make sure that the accuser keeps accusing, because if she withdraws her complaint and then waffles that election cycle is even worse. The defendant has to see it through, because... well... the topic of this thread.

But I also came away from that case thinking really hard about what, aside from stopping the "slut shaming" aspects of our culture that make consent an even more gray area than already is, I can do to encourage society to evolve in a way that lets us make better decisions in such cases.

And I haven't come up with any better answers.
posted by straw at 10:20 AM on May 25, 2012 [2 favorites]


This interesting study from the journal Violence Against Women, as discussed in this decidedly anti-rape, pro-feminist blog, found that 5.9% of rape accusations at a university police station were false. That's a small percentage, but it's hardly "incredible".

By way of contrast, Jews (like myself) are about 2% of the US. It would be comically inaccurate to say that Jews are "incredibly rare" in the US. Asian-Americans (like my SO) are about 5% of the US. That's even less "incredibly rare."
Yeah. The problem is that it bumps up against the sort of uncomfortable idea of actually quantifying reasonable doubt. You have the expression "Better to let 10 guilty men go free then send one innocent man to prison". The problem there is that even if you knew for sure that 8% of rape claims were false, you could still convict everyone accused of rape without violating that guideline.

But even though we would be sure of each specific conviction beyond "reasonable doubt", we would also know, for sure, that 8 out of 100 people in prison for rape would be innocent. People like to think that trials are certain, when clearly they're not.
Here in Illinois we've had a staggering number of people let off death row since DNA testing became available. When you read about what sent these people to prison, it is mind-blowing. The eyewitness testimony that turns out to be wrong; the coerced confessions, the list goes on.
I believe the number was 50%
Sure. And that is not helped by actual false allegations, is it? It's arguable that if the penalties for provably false allegations were more strictly enforced, then there would be less suspicion that people who came forward to make allegations were lying.
Yeah, but you also have the obvious problem of false false rape accusation accusations. Someone could be raped, report it, and then be mistakenly charged with making a false rape accusation, and be convicted by mistake.

It's the same problem with the plea deal thing: If reporting a rape means risking going to jail then that really alters the risk/reward ratio for the victim.


Here's one idea: You could create a little audio recording device for people to carry on their person. If they are going to be in a situation where they think they might be date raped, or just have consensual sex. Now, part of the problem with that is that right now it's also illegal in a lot of places to record people without their consent either. (You probably don't want to make it legal for guys to record their sexual exploits without their partners knowledge)

But you can solve that secondary problem by encrypting the recording with a double key. If you report a crime both you and the police (or a court) would need to agree to decrypt the recording. This gets into all kinds of big-brother issues, though. Another legal only solution might simply be to just make it legal for people to record situations like this, or maybe require them to never copy it and delete it after a certain period. You could even make it as an smartphone app.

That doesn't solve the problem for people who aren't carrying something like that, though.
posted by delmoi at 10:23 AM on May 25, 2012 [1 favorite]


I am disturbed that the adults pushing her to prosecute led her down that path. What is their excuse for such poor judgment?

Among many reasons, one could be:

"Oh, I know my daughter says she wanted to have sex, but she's only a child, she doesn't know what she's thinking! She's not mature enough to think like that, she's my dear little girl, he must have forced her...."
posted by EmpressCallipygos at 10:26 AM on May 25, 2012 [7 favorites]


Your profile says you live in Brooklyn, so maybe you have a skewed view of this. Take it from a Jewish guy in Wisconsin; Jews are incredibly rare in the US. But of course you still try not to schedule an important meeting on Yom Kippur, because while Jews are incredibly rare, you dont get to make policy that assumes that Jewish people literally don't exist.

I'm sorry, and I don't say this often, on this site or anywhere else, but you are simply wrong. Jews are not "incredibly rare" in the US. That is ridiculous.

The most basic reason that you are wrong is that Jews are geographically clustered in ways that reported sexual assaults are not. 2% of the nation is still six million people. Not incredibly rare, unless we redefine "incredibly rare" to mean something other than what it already does.

If Jews were as prevalent nationwide as they are in your specific area, then perhaps you would be right, but they aren't, so you're not.

(By the way, I'm not originally from Brooklyn. I'm originally from a rural area with almost no Jews whatsoever. I was always late to Hebrew school, because it was physically impossible for my mom to drive me from my school to where the nearest Hebrew school was. Uphill both ways in the driving snow under the blazing sun, etc.)
posted by Sticherbeast at 10:29 AM on May 25, 2012


Man, I have to wonder about this girl's home life, if she was so afraid to tell her mother she'd been making out with a guy that she'd invent a rape story.

My impression is that she'd probably had sex with someone at an earlier time and then she decided to turn the makeout session into a rape to cover the fact that she was no longer a virgin (thus the pathetic attempt to pin the time down with the note "I was a virgin, now I'm not"). Maybe she was terrified of pregnancy and felt she needed a cover story. She was examined, and the nurse said the evidence was consistent with sex having occurred--there just was no evidence it had been rape or with Banks.

At 15, she really may have had no idea when she made up the story how bad this would be for Banks, or even that she would be expected to press charges. And once those wheels started turning, she may have felt like it was too late to recant. It pretty much looks like self-protection was her motive from start to finish, which isn't atypical of a 15yo... you'd just hope that more enlightened values would kick in before another person's life was ruined.

I wonder about her home life, too, and have to feel like her mother bears a lot of responsibility for the whole thing. So sad.
posted by torticat at 10:33 AM on May 25, 2012 [1 favorite]


But even though we would be sure of each specific conviction beyond "reasonable doubt"

That's not how it works, as you undoubtedly know. For example, if it could be shown that 92% of people arrested for crimes were actually guilty of those crimes this logic would inexorably lead to the idea that being arrested for a crime would by itself constitute proof beyond reasonable doubt and thus lead to conviction. Besides, a 92% chance of guilt isn't close to being beyond a reasonable doubt.
posted by Justinian at 10:33 AM on May 25, 2012


You could create a little audio recording device for people to carry on their person.

Well, it might help sometimes. But rape is not always, probably not even very often, the sort of crime one sees in advance. People, often because of drink and drugs, but also because the line between consensual sexual activity and rape is one that can be crossed very quickly in some circumstances, do find themselves being raped without the opportunity to think about things like recording the situation. They may also have voluntarily removed clothing that contains the recording device before realising that rape was any kind of possibility.

That's not to say that your suggestion couldn't be useful in some circumstances, but rather that rape is a crime committed in a variety of circumstances that are frequently chaotic and unpredictable. It's unlikely that we will ever be able to produce approaches that do more that tackle certain aspects of certain types of offences.
posted by howfar at 10:35 AM on May 25, 2012


I was recently called to serve on a jury, dismissed with a peremptory challenge, but the facts of that case so far as I could suss out from the things said during voire dire were that:
Did they say what the reasons for dismissal were? The stereotype is that they get rid of everyone with an education, a lot of the time.
The prosecutor can't back down and say "your case has holes", because then the next DA election cycle is going to be full of "doesn't care about rape victims" rhetoric, in fact he (in this case) has to do his best to make sure that the accuser keeps accusing, because if she withdraws her complaint and then waffles that election cycle is even worse. The defendant has to see it through, because... well... the topic of this thread.
That reminds me of a campaign ad that thoroughly disgusted me in the last election cycle. For the first 15-20 seconds i actually thought it was a PSA about child-abuse. Then it pivoted to attacking the current state attorney general over two or three people where people accused of child molestation were released for technical reasons. Or something. It wasn't all that clear.

For a long time, I didn't see any ads from the current AG. Finally he comes out and his ad is basically points out that this was a woman who spent most of her career as a lobbyist in California, and had never even tried a case in court. He also had another add where he just talked about himself into the camera, and seemed like a totally reasonable guy. Oddly, neither of them mentioned their party affiliation in their campaign ads. I had no idea which was which until I got to the voting booth. Turns out she was the republican and he was a democrat.

I'd bet her campaign was funded in large part by the banks that were under investigation in various states (including mine) for the widespread mortgage fraud in the run up to the meltdown.
posted by delmoi at 10:36 AM on May 25, 2012 [1 favorite]


Just to be clear, the "Statement of Facts" everyone is referring to may not be actual facts. No one other than Banks and the girl who accused him know what actually happened in the stairwell, vis-a-vis intent and coersion; note that she has already recanted her recantation.

If you want to assign blame in this mess, look to the DDA (and his/her filing deputy) in Long Beach, who decided to charge this up, without physical evidence or witnesses, and knowing that the two kids had a habit of making out in the stairwell during school. And at Banks' attorney at the time, who recommended taking a deal rather than putting the girl on the stand, where her story would most likely fall apart.

Then again, there's Occam's Razor, which says that the original defense attorney (and his/her superiors, if they were a Public Defender) and DDA (and his/her superiors) were all competent, compassionate, and interested in seeing justice done. Which would imply that there was something very specific that told them all that (1) a crime occurred, and (2) the deal was better than a trial, at which Banks would most likely be found guilty.

(Also note that it's no skin off the DA's nose to exonerate Banks after he's served his debt to society. There's only good PR to be had, and L.A. DA Steve Cooley is retiring anyway.)
posted by turducken at 10:37 AM on May 25, 2012


Did they say what the reasons for dismissal were? The stereotype is that they get rid of everyone with an education, a lot of the time.

This is patently not true, especially in DNA cases, where logic and a functional knowledge of science (or at least a belief in it) helps both sides.
posted by turducken at 10:43 AM on May 25, 2012


Which would imply that there was something very specific that told them all that (1) a crime occurred, and (2) the deal was better than a trial, at which Banks would most likely be found guilty.

Again, though, #2 just isn't right. Look at the discrepancy between the possible sentence (life!) and what he actually got (5 years I believe). That massively skews the incentives. How confident do you need to be in an acquittal before you are willing to risk life in prison? Even if I were 95% sure I'd be acquitted (because I'm innocent), the sure-thing 5 years is awfully tempting--I'd still have most of my adult life ahead of me.
posted by dsfan at 10:48 AM on May 25, 2012 [1 favorite]


That's not really been my experience in the Los Angeles jury system. I've seen a lot of jury selection and there has been a strong correlation between level of education and peremptory challenges. Correlation isn't causation and so on, but the correlation was definitely there.
posted by Justinian at 10:48 AM on May 25, 2012 [1 favorite]


All jokes aside, they're not necessarily looking for the least educated jurors possible. Lawyers often want people who are used to making snap judgments, such as teachers and middle managers, and those are not uneducated people.

Incidentally, I understand that one of the professors at my old law school had to serve on a jury somewhat recently. She was as initially astonished as anyone else. You usually hear that attorneys at voir dire are treated like crosses at a vampire prom. However, it turns out that attorneys sometimes actually like jurors with legal education for certain cases, especially since they know that fellow attorneys will be especially vigilant about not overstepping their bounds as jurors. (IIRC, the parties settled before the actual trial, or before the trial got very far, so it wound up being moot.)
posted by Sticherbeast at 10:51 AM on May 25, 2012 [2 favorites]


delmoi: "Did they say what the reasons for dismissal were?"

The prosecutor came right out and said that he wanted to get rid of engineer types because their standards for "reasonable doubt" were unreasonably high.

I'm one of those people who has all of the questions nailed by the time they put me in the hot seat, so I answered all of those without prompting and without referring to the board they were written on, and then I made the mistake of reaffirming that I don't think the defendant needs to testify and then, in response to a question, allowing as how reasonable doubt would be a very difficult thing to decide if this were a case of "he said, she said". Since he likely wasn't going to say (totally reasonable, he's innocent until proven guilty, was using a translator, and that prosecutor was slick), it was probably "she said and she was drunk".

If I was the prosecutor, I would have booted me off too. When you've got a computer geek who's used to spending his life looking at details and logic and correlating lots of disparate data, or a chance at a retired civil servant, definitely go for the latter. Heck, if he hadn't booted me, I'd be looking more closely at the DA come the next election.
posted by straw at 10:54 AM on May 25, 2012


If reporting a rape means risking going to jail then that really alters the risk/reward ratio for the victim.

Yes. A bit like in this case.
posted by Summer at 11:02 AM on May 25, 2012 [1 favorite]


Again, though, #2 just isn't right. Look at the discrepancy between the possible sentence (life!) and what he actually got (5 years I believe). That massively skews the incentives. How confident do you need to be in an acquittal before you are willing to risk life in prison?

I think it was 6 years (the deal) vs. 41 to life (maximum possible of all charges). Very unlikely the max would be doled out, unless the crime was truly heinous. Again, none of us know the true circumstances of the incident, or the plea bargain. I would, however, go out on a limb and say that a competent attorney with a high-profile client whom he/she believed to be truly innocent would not agree to such a deal, at least not in 2002 Los Angeles. (Other states and times, not so much.) So for me, the two possibilities still remain: incompetent defense counsel + venal prosecution, vs. some truth to the charges. Either are a possibility, and I'd love to learn more -- but so far there has been little news reporting about the original prosecution, and the journalism is so weak in this town that I'm not holding my breath.

I've seen a lot of jury selection and there has been a strong correlation between level of education and peremptory challenges.

I've had exactly the opposite experience in L.A., but it depends on the case. Absolutely true that some attorneys will kick educated people when the case requires an appeal to emotions vs. reason.

Lawyers often want people who are used to making snap judgments, such as teachers and middle managers, and those are not uneducated people.

This is true, though I would say that they're looking for reasonable people who want to do their duty and go home, vs. crazy/emotional/nitpickers who might find the jury room the perfect arena to let their freak flag fly. (Though putting a couple of loons on there who might hang the jury is a reasonable, if desperate, defense tactic.) Also keep in mind that teachers and middle managers often get paid by their employers for jury service, which makes them very attractive candidates.
posted by turducken at 11:57 AM on May 25, 2012


> I have to wonder about this girl's home life, if she was so afraid to tell her mother she'd been making out with a guy that she'd invent a rape story. Reading over the legal document, there's such emphasis placed on how she was a virgin before this "rape." Ugh. Sad.

> I can imagine being absolutely terrified and desperate to let my parent know at 15 that I'm no longer a virgin, and concocting an elaborate story to cover up the truth. But then your mother wants to sue the school. And you have to throw an innocent boy under the bus, but there's a huge amount of money on the line ... it's also the kind of lie that can quickly snowball out of the control of a ninth grader.

Yep. I totally agree with this. She apparently tried to talk her (family's) lawyer about this at the time, and was told to shut up. Ten years later, married, with her own family, and no longer dependent on her parents or living with them, her conscience was bothering her and she tried apologize. I'm not sure throwing the book at her would do anything to deter people from being placed in that situation in the future.


According to the LA Weekly article, Banks' lawyer told him:
"When you go into that courtroom the jury is going to see a big black teenager and you're automatically going to be assumed guilty."
This really pisses me off. And, yes, I know this happens all the time. (I used to be a court reporter.) What kind of representation did he have? Did his lawyer even ask him what his side of the story was? Did they even listen to it if they did? Did they even bother looking at looking at the prosecution's evidence? This sounds like typical public defender bullshit. If his family paid for his representation, that's even worse.

I'm not at all sure it's true that "the jury is going to see a big black teenager and you're automatically going to be assumed guilty." We're talking about California ten years ago, not the South in the Jim Crow era. The forensic evidence came back negative, which is consistent with defendant's version of story? A witness saw them chatting amicably about the same time he was supposedly forcibly dragging her off to the elevator? She seemed totally nonchalant after the alleged rape, with numerous witness including a teacher? The plaintiff's own statements were inconsistent, and she couldn't seem to remember if she'd been anally raped or not?

What jury would convict him with this kind of evidence? From the quote from his lawyer in LA Weekly, I'm not so much geting 'California juries are racist, and there's no hope' as 'I'm a racist, I don't care if you're guilty or not and I don't give a shit'.

What people need is a meaningful right to fair and speedy trial, with real representation from lawyers who actual bother to understand their case. Poor people and lower middle class people aren't getting that, and everybody involved in the American Criminal Justice system knows that it's a joke.


(I'm aware that there are a lot of people in the US court system who are aware of just how broken it is and wish it wasn't like that, but their awareness by itself doesn't fix it.)
posted by nangar at 12:12 PM on May 25, 2012 [7 favorites]


Another example from today's news of how the prosecution can play on the idea that women are always making false rape accusations.
posted by Summer at 12:13 PM on May 25, 2012


Seriously, dude's attorney needs to be disbarred. Nolo contendre and the Client didn't do it?

Wow.
posted by Ironmouth at 12:19 PM on May 25, 2012 [1 favorite]


If I was the prosecutor, I would have booted me off too. When you've got a computer geek who's used to spending his life looking at details and logic and correlating lots of disparate data, or a chance at a retired civil servant, definitely go for the latter. Heck, if he hadn't booted me, I'd be looking more closely at the DA come the next election.

This is confusing; surely the end point of your logic is that you effectively support DAs who attempt to procure jurors who are unskilled at logic and thus produce bad outcomes? How does that work?
posted by jaduncan at 12:38 PM on May 25, 2012


Another example from today's news of how the prosecution can play on the idea that women are always making false rape accusations.

Wow, that's certainly execrable, though I'm a little confused as to how it pertains to this case or what point you're trying to make.
posted by (Arsenio) Hall and (Warren) Oates at 1:04 PM on May 25, 2012


Someone above said something about this guy's life being ruined--even if he is now free and now officially innocent. Which is absolutely true. Because, you know, the US does fuck-all for people it convicts, whether it's a minor drug possession offense, an armed robbery, an assault, a murder. We don't treat their addictions; we don't train them; we don't rehabilitate them. But we release lots of them. Eventually. And it's hard to get people to care that they formerly incarcerated are unemployable; that they can't support themselves; that they spent 2, 5, 10, 20 years unlearning what few skills they had, what little social acumen they had, destroying the fragile social structures which might have assisted them. It's hard to get people to care about how ruined the lives of former convicts really are.

But you know, the US locks up a lot of arguably or completely innocent people as well. Hell, we execute the innocent and most-likely innocent. And those people are also eventually released sometimes, the ones we don't execute. They also have spent the last 2, 5, 10 years losing all their social and economic value along with whatever social and economic skills they had.

And that screws everyone over. Everyone. The guilty. The wrongfully convicted. Their families. Their neighbors. The citizens 100% disconnected from them and their cases who bear part of the social burden of these people's ruined lives.

There are so many problems with the US system of justice, from investigation to prosecution, to incarceration, to release. It's intractable. I think we need to start by changing what Americans think about ex-convicts. I think we need to change what Americans think the purpose of incarceration is. It won't undo the injustice of wrongful imprisonment, but it will undo a lot of other injustice.
posted by crush-onastick at 1:17 PM on May 25, 2012 [5 favorites]


According to one of the links above, Banks' original attorney was Elizabeth Harris, who is now a commissioner (judge). She was in private practice at the time, and had represented numerous high-profile clients. It would be interesting to hear her side of the story.
posted by turducken at 1:29 PM on May 25, 2012


The prosecutor came right out and said that he wanted to get rid of engineer types because their standards for "reasonable doubt" were unreasonably high.

Try working for a liability insurer--it's like a "Get Out of Jury Duty Free" card
posted by Hoopo at 1:58 PM on May 25, 2012


jaduncan: "This is confusing; surely the end point of your logic is that you effectively support DAs who attempt to procure jurors who are unskilled at logic and thus produce bad outcomes?"

The prosecutor, and the DA, isn't rewarded for justice done. The prosecutor is rewarded for winning cases. The prosecutor's job is to represent the state in pursuing the claims of the victim. For all the reasons I previously mentioned, the prosecutor can't go to the victim and say "ya know, your story is consistent and kinda weak", the prosecutor has to take that accusation seriously and be an advocate.

Just as the defense attorney's job isn't to determine whether or not the defendant did what they actually did, the defense attorney's job is to minimize the damage done by the state to their client.

As jurors, we get the luxury of not taking sides. The defense attorney can also at least fire the defendant. The only thing the prosecutor can do is to resign the job. He's the grunt who's been given the hill to take, stopping to worry about why is a good way to lose.

Not that I'm encouraging some of the unethical behavior we've seen reported from prosecutors, but in that trial, that guy's job was to take the concerns of the accuser seriously, and part of doing that is to stack the jury.

If he stopped to play judge and juror too, well, we'd have a completely different system from the one we have. And I don't know whether that'd be better or worse, because what if the accuser is right?
posted by straw at 2:15 PM on May 25, 2012


Unbelievable. The court should make the woman pay the money she got to Banks and then she should go to jail for 6 years.
posted by Rashomon at 2:21 PM on May 25, 2012


Seriously, dude's attorney needs to be disbarred. Nolo contendre and the Client didn't do it?

I simply cannot understand how the prosecution, the defense, or the judge supervising the plea bargain were able to ignore the complete absence of DNA evidence showing that accused and accuser even had sex, or the continually-shifting testimony of the accuser. I can understand Banks being arrested, as the initial medical exam showed evidence of sexual activity (that is, accuser was not a virgin). But when the subsequent DNA tests failed to yield any result on any of the 3 samples, that seems like a big, big problem.

Besides the plea bargain and other procedural shortcomings, one thing that bothers me about this case is that the school basically expelled banks as soon as the accusation was brought, and stated that the decision was final regardless of the outcome of any judicial proceedings. It's quite worrying that merely being charged can wreck someone's future so comprehensively. As I've said before, this problem starts with the US practice of perp walks and publication of mugshots, and continues with the (IMHO) dangerously lax rules for media reporting of legal proceedings.

This is confusing; surely the end point of your logic is that you effectively support DAs who attempt to procure jurors who are unskilled at logic and thus produce bad outcomes? How does that work?

I'd say a retired civil servant isn't necessarily unskilled in logic, but that s/he may also be skilled in probability. Many people, and ISTM especially people like programmers, often interpret 'beyond a reasonable doubt' as 'beyond any imaginable possibility.' A wildly improbably explanation for an otherwise damning set of facts has to be considered in terms of both possibility and plausibility.

For example, I happen to have a doppelganger who lives only a few miles from me. The person looks so like me that when I first saw his webpage I thought he had ripped off a picture of me! So if I were arrested on the basis of a visual ID - eg a security camera photo - and nothing more, I'd say 'hey, I am not the only 40-ish white guy with red hair, a beard and glasses that lives within 10 miles of this crime you're investigating.' (Of course, a single item of evidence is usually insufficient for conviction anyway, but you get the point.) But if my doppelganger lives on another continent, the possibility of mistaken identity is much, much lower. It's still a possibility because the other person may have visited this area, committed the crime in question, and departed again - but that slim possibility would be a very weak defense to rely on. I would do better to produce an alibi or else to gather evidence supporting the argument that the crime was committed by another person.

I mean, you don't want jurors who think all accused criminals are probably guilty, but neither do you want jurors who think that all judicial proceedings are epistemologically meaningless or that government prosecutions are inherently tyrannical.
posted by anigbrowl at 4:20 PM on May 25, 2012 [3 favorites]


I too think his plea is strange. I can understand why he did it but not his lawyer's decision to prompt him to do it. Usually the guy says it was just sex and the gal says it was rape, but in this case, he was claiming they never had sex at all. It's hard for me to believe there would have been a conviction with no physical evidence of intercourse.
posted by Danila at 6:37 PM on May 25, 2012


There probably was physical evidence of intercourse; the intercourse just wasn't with Banks.
posted by Justinian at 7:08 PM on May 25, 2012


There was no evidence that she had had intercourse with anyone on the day in question. The medical exam was conducted within hours of the alleged encounter. I'm no forensic tech but there doesn't appear to be any dispute from the DA's office about the meaning of these findings.

From the Habeas Corpus petition (p 27):
F. DNA testing

The Long Beach Police Department sent the SART kit and samples from Gibson’s underwear to the Los Angeles Sheriff’s Department [LASD] for testing. Sean Yoshii [Yoshii] of the LASD Crime Lab microscopically examined the slides obtained from the genital swabs, vaginal swabs, and rectal swabs for the presence of semen and did not find any. (Exhibit W, p. 32.) Yoshii then did a P30 test on the swabs, which would detect any sperm, and the results came back negative. (Exhibit W, pp. 35-37.) Using an alternative light source, Yoshii examined Gibson’s clothes for several hours. (Exhibit W, pp. 39-40.) Several stains fluoresced under the alternative light source. (Exhibit W, pp. 41-42.) Yoshii then applied acid phosphatase (chemical that detects seminal fluid) to the stains and concluded that there was no seminal fluid on the jeans, belt, shirt, or bra. (Exhibit W, 42.)

However, there was a possible indication of seminal fluid on the stained crotch area of Gibson’s underwear. (Exhibit W, p. 44.)
Yoshii took cuttings from the area of Gibson’s underwear that tested positive for seminal fluid and sent the cuttings for DNA analysis. (Exhibit W, p. 48.) Flynn Lamas [Lamas] conducted the DNA analysis. Only Gibson’s DNA was detected on the extractions from the underwear and no male DNA was detected. This meant that either there was insufficient male DNA to detect or there was no male DNA present at all. (Exhibit W, p. 31.)

posted by anigbrowl at 10:04 PM on May 25, 2012


Thanks, I missed that! Yes, that makes the decision to plead nolo contendre extremely surprising. If she didn't have sex with anyone he couldn't have raped her.
posted by Justinian at 3:36 PM on May 26, 2012


If she didn't have sex with anyone he couldn't have raped her.

Obviously I do not think that the following happened in this case, but it is entirely possible to be sexually assaulted in ways that don't involve penetrative sex and/or leave obvious physical signs: rape with foreign objects, forced (giving/receiving) handjobs or oral sex with a condom, sexual fondling, etc. Criminals who don't want to get caught can get creative.
posted by nicebookrack at 11:11 PM on May 26, 2012


But we're not talking about a hypothetical case, we're talking about this one. And that's not what she originally claimed.
posted by Justinian at 1:14 PM on May 27, 2012 [1 favorite]


The Redemption of Brian Banks -- a good new article from ESPN. Banks appears to be doing well, he is training and has four workouts scheduled with NFL teams.

The article is good on the terrible 'scarlet letter' treatment the American justice system gives to even released sex offenders:

When he got out, he had to wear a GPS ankle bracelet at all times. He had to register as a convicted sex felon. Couldn't go near schools, parks or zoos. Couldn't get a job. He was lucky to get a few hours a week unloading docks.

And Banks himself seems to have a great attitude:

"I know my story makes people angry at first," Banks says. "That's where I was, too, at first. But where would it have gotten me to stay mad for 10 years? It's like when you're a little kid and you cry about having to clean your room. You can cry and cry, but it doesn't get your room cleaned."
posted by zipadee at 11:47 AM on May 30, 2012


Awesome! He deserves his shot and I'm glad the NFL is giving it to him.
posted by furiousxgeorge at 12:11 PM on May 30, 2012


Seahawks are giving him a tryout.
posted by nathancaswell at 5:26 PM on June 6, 2012 [1 favorite]


Apparently the tryout went well. Brian Banks gets invite to Seahawks minicamp.
posted by nathancaswell at 12:28 PM on June 7, 2012


He was on Jay Leno last night, giving a first-hand account of his experience and the insanely coercive situation he was in - as trial approached, his lawyer appeared with a plea offer which he had 10 minutes to decide upon, without being allowed to talk to his parents or anyone else. I hope that his lawyer, the girl's mother's lawyer, and the prosecutor all have to defend their law licenses. Utter travesty.
posted by anigbrowl at 2:02 PM on June 7, 2012 [1 favorite]


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