Today in Innocence

Thursday, May 24th, 2012

Just, wow.

A former high school football star whose dreams of a pro career were shattered by a rape conviction burst into tears Thursday as a judge threw out the charge that sent him to prison for more than five years.

Brian Banks, now 26, pleaded no contest 10 years ago on the advice of his lawyer after a childhood friend falsely accused him of attacking her on their high school campus.

In a strange turn of events, the woman, Wanetta Gibson, friended him on Facebook when he got out of prison.

In an initial meeting with him, she said she had lied; there had been no kidnap and no rape and she offered to help him clear his record, court records state.

But she 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.

During a second meeting that was secretly videotaped, she told 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,” according to a defense investigator who was at the meeting.

It was uncertain Thursday whether Gibson will have to return the money.

Uncertain. Jesus. In a just world, she’d be forced to sign what’s left of it over to Banks. Along with half her paycheck for the rest of her life. And that would be only once she gets out of prison.

Let’s not overlook that Gibson hurt a hell of a lot more people than Banks, here. It’s stories like hers that make it more difficult for women to come forward when they actually have been raped. And that make it more difficult for authorities to charge and convict their assailants.

What a nightmare.

Digg it |  reddit | |  Fark

75 Responses to “Today in Innocence”

  1. #1 |  StrangeOne | 

    One theme I’ve noticed here and elsewhere is that public defenders push for confessions to get lighter sentences for their clients. So that somehow gives them a pass to do it when they talk someone into a false confession.

    But here’s the thing; I can understand a confession if evidence is overwhelming. If your client was discovered standing over a brutalized body by two good witnesses who personally knew them and the victim, and the police photographed the obvious signs of assault and doctors documented the violation, then yeah there is no sense going to trial. Your client will be crucified.

    But why would you apply that exact same logic to a case where it is one teenagers word against another’s? I keep hearing how “we all know how juries are”, but time and time again I see the worst of these wrongful rape charges are the result of confessions. Not juries. I know juries are emotional, but they’re not all complete rubes; when faced with a woman who changes her story and constantly misstates important details it’s fairly simple for an effective lawyer to build reasonable doubt, especially in the complete absence of physical evidence.

    Not only that by pushing for trial you force the prosecutors to make a better case, and the quicker they realize their only witness to a crime is a teenager that can’t keep her story straight, the more likely they are to drop the charges all together.

    I just don’t buy this “encouraging confessions to reduce sentences” shtick as an excuse for bad public defenders. It doesn’t match up with my experiences; I’ve seen far more false confessions than bad jury decisions. I understand a lot of cases are decided by confession because most people, after the fact, are willing to confess to minor crimes that they committed just to get everything over with. But when your client denies guilt, that’s the assumption you have to move forward with as a lawyer. If somewhere down the road your client proves to be delusional, only then should you consider talking them into a confession, but it should never be your first instinct in a case.

  2. #2 |  Reluctant to recant rape accusation - Overlawyered | 

    […] via Balko, […]

  3. #3 |  Burgers Allday | 

    Not only that by pushing for trial you force the prosecutors to make a better case, and the quicker they realize their only witness to a crime is a teenager that can’t keep her story straight, the more likely they are to drop the charges all together.

    The problem is that the accused usually can’t tell his story because then they will allow anything in that impacts his credibility. Kind of like how we all know that Trayvon Martin was a dopesmoker. let’s say he lived and was on trial for smashing Z.’s hed. He really wouldn’t be able to testify in his own defense (eg, I was worried about this weirdo following me) because then the jury would be treated to a long question and answer session on his dopesmoking. So people like that don’t testify.

    Mehserle only testified because he got the prosecutor to agree not to make him tell the story of why he initially said he shot Grant.

    Now I don’t know why the defense atty didn’t want Banks testifying, but there probably was something. Maybe some fist fights, shoplifting, angry ex-girlfriends, doesn’t matter.

    Now, you might ask “If the prosecutor would dig up all that on Banks then couldn’t the defense atty dig up all that on Banks’ accuser?”

    The answer is that the prosecutor has money and the defense atty doesn’t. So these cases are not really he-said-she-said. Instead, they are simply she-said (with “she” being whoever in on Team Prosecutor).

  4. #4 |  FullyAgitated | 

    I suppose I am getting tired of the refrain about “how hard this makes it on women who are raped.” When confronted with false or overblown charges for any other crime, do we say this? I had an argument with a girlfriend about false accusations and she couldn’t be more clear that she didn’t care about them, because the ‘real’ (which is exaggerated) crimes were more important to her. Let’s say her “personal examples” of friends who were raped, sounded a great deal like “buyer’s remorse” than real incidents of assault. And it’s the very seriousness and unique way in which we handle and process sexual crimes and the approach that “women/children” don’t lie about such things, that empowers the Wanettas of the world to manufacture these cases and ruin lives.

    We just are going to have to admit that women and men are different and women often use rape as a way to get back at someone, avoid being seen as a cheater or slut, or because they really do feel guilt over the act for some other reason. And it’s not men who are enforcing the “slut” shaming, it’s women.

  5. #5 |  Juice | 

    I know juries are emotional, but they’re not all complete rubes…

    I don’t know about that.

  6. #6 |  Judi | 


  7. #7 |  Bob | 

    This post does not refer to this actual case… as it appears to be a case of the false report of a crime that never occurred. But rather about the crime of ‘rape’ in general.

    My problem with the crime of ‘rape’ has always been the fact that the majority of rape victims offer no physical resistance at all. If some guy I knew (The majority of rape cases are by men known to the victim.) suddenly started to kiss me or grab my junk… rest assured I would resist physically. A lot. in fact, the few times a fellow male tried to make me do something I didn’t want to do (Nothing sexual, just bullying.)… I did just that. Win or lose the fight, that ended the bullying fast.

    I read this PDF today:

    FASCINATING stuff into the psychology of rape victims. The very first case study:

    Dissociation: Commonwealth v. Berkowitz

    Is a must read. It so explains the phenomenon of “Date Rape”.

    You have to understand that there are 2 kinds of men… men who are sexually aggressive and will try to have sex, and men who are essentially celibate. Men are not like women, they can’t get sex just by looking pretty. (Well, usually.) They must be proactive and try to “Get into her pants.” as it were.

    Combine that aspect of men with the statistical possibility of a woman being incapable of resisting an unwanted advance (As per the psychology revealed in the PDF.) and you have “Date Rape”. A furtive sexual encounter that quickly got out of control and is just as quickly over. (Note that in Dissociation: Commonwealth v. Berkowitz the encounter only lasted 90 seconds.)

    Was a crime committed in “Dissociation: Commonwealth v. Berkowitz”? Yes. but the velocity of it’s acceleration and the expectations and reactions of each participant (aggressor and victim) clashed in a way that should have reduced the actual crime to a misdemeanor.

    I’m open for discussion! This is a very interesting subject for me.

  8. #8 |  Bob | 

    Oh! And I also want to add… you can’t blame the woman who issues a false rape report either. Rape is not routine, the majority of women are never raped. As such, the experience that makes rape bad is only available to women that have actually been raped.

  9. #9 |  Weird Willy | 

    “I know juries are emotional, but they’re not all complete rubes; when faced with a woman who changes her story and constantly misstates important details it’s fairly simple for an effective lawyer to build reasonable doubt, especially in the complete absence of physical evidence.”

    If Banks had not pleaded guilty to a lesser charge, he would almost certainly have been convicted and sentenced to 50-to-life with an earliest possible release in 41 years. As my Trial Ad I professor was fond of saying back in law school, “Always remember, there are thousands of men sitting in prison on the basis of nothing more than a sobbing, inconsistent accusation of a woman.” Banks attorney did her client an enormous service by negotiating a plea deal with a recommended sentence of only 3-6, and if she had not done so Banks would still be rotting in prison, never having had the opportunity to covertly record his false accuser.

  10. #10 |  Weird Willy | 

    “The very first case study:

    Dissociation: Commonwealth v. Berkowitz

    Is a must read. It so explains the phenomenon of “Date Rape”.

    My god, that article is a POS. I would modify your post to read, “The actual trial record of Commonwealth v. Berkowitz is a must read. It will infuriate you to the point of making you want to eliminate the very legal capacity to charge someone with date rape and place a bounty on the head of any prosecutor who wishes to try someone for it.”

  11. #11 |  Bob | 

    Weird Willy,

    Explain, please.

    How is that article a POS? Do you disagree with my assessment of it? I can’t read your mind, dude.

    In no way did I suggest that a crime was not committed there. Just that it might not be a felony.

  12. #12 |  Rob | 

    Worst part is, the feminist movement has repeatedly pushed for making rape convictions easier to obtain, and has been extremely critical of any efforts to prosecute women who make false accusations. Rape is a serious crime. Ruining a man’s life like this should be, too.

  13. #13 |  Weird Willy | 

    Bob, the article is a POS because it is a slanted, biased piece of feminist propaganda meant to precondition the reader to accept the positions of people who are impelled by an animus against ‘those filthy, penis-possessing scum.’ It was written by the director of the legal propaganda unit of N.O.W. (presently known as Legal Momentum), and was published as part of an advocacy campaign advancing an agenda of “re-education” in pursuit of the long-term goals of establishing de facto credibility of all rape accusers (like Wanetta Gibson) and expanding rape prosecutions. I find all such purposely biased and distorted propaganda to be shit, and would label any piece of it a POS.

    My essential point is that if you read the actual case, and not just rely upon Schafran’s deliberately slanted and excerpted misrepresentation of it, you will likely develop a very different understanding of what happened. The jury in the lower court was essentially instructed to find Berkowitz guilty, but if I had been seated on that jury there is absolutely no way that I would have convicted Berkowitz based on the facts. Ordinarily, I abhor people who consort with organized criminal figures, but if Berkowitz’ appeal had not been successful, well…let’s just say that I would be able to understand and forgive his actions if some illicit ‘friends’ of his would have paid a visit to his accuser and the prosecutor who sought to victimize him.

    BTW, I met Schafran when she visited my Crim Law I class in law school. She is a close associate of the author of a garbage tome we were required to read, who in turn is a close associate of the ideologue who taught the class. The ideologue had arranged for the two of them to give a presentation at the school, and they visited our class for a discussion while they were there. We discussed Berkowitz during their presentation (the class had previously read the full records from both the lower and appellate proceedings), and while there Schafran recruited a number of ‘student associates’ for her cause, one of whom I opposed in a public debate several years later. The basic focus of our debate was whether innocent men should be castrated as a means of reducing the potential for rape in society. I argued the con position, which caused me to be roundly derided and heckled by the feminists who were present.

    I feel a very personal stake in the issue of false rape accusations. I personally have been falsely accused of rape and attempted rape three times, and consider myself extremely lucky never to have been imprisoned. It is only by pure, dumb luck that each time my accusers recanted their stories, each one confessing a different motive for her actions. The scariest of these was the one where I was accused not just of date rape, but also kidnapping. The police had come looking for me later in the morning after our date ended, but a friend of the accuser learned of the complaint and called the police before they even came looking for me. Her friend advised the police of the fact that this accuser had already discussed the situation with her and confessed that she had contrived her actions in order “to fix” me for being “too seductive,” “making [her] want to have sex,” and having “gotten in [her] pants before it was time.” Her friend made one additional disclosure; my accuser was a former mental patient who had previously fabricated similar charges against three other men while living in Illinois. Fortunately, oh so fortunately, the cops reinterviewed my accuser before filing charges, and when confronted with her friend’s disclosures she cracked and changed her story to include such incredibly irrational and readily falsifiable details that the cops told her they were not going to charge me. She then admitted her motives and left the state.

    This accuser, like the other two, said and did a number of things that Schafran pretends actually comprise the pure indicia of rape. She adopted the fetal position when initially interviewed, made frantic phone calls to friends shortly after the ‘kidnapping’ and ‘assault,’ said that she had feared for her life and was convinced I would kill her, the whole thing was “just a blur” that she had witnessed in detachment, etc. Had her friend not called the police, or if the cops had chosen to forego a second interview with the complainant and charge me notwithstanding her friend’s disclosures, I would have been sunk. I would have been charged, tried, and likely convicted. The application of rape shield laws likely would have prevented me from introducing any evidence of her past history of false accusation during my trial, and (feeling bolstered by her sponsorship by the system) my accuser never would have cracked and admitted the truth. The end result would have been that I would be writing a vastly different message to you today from behind bars.

    If Schafran were to have her way, I never would have remained free after any of these three accusations. I never would have gone to law school, never met Schafran in class, never debated her protege, never taken a single breath of free air, never had a life worth living. While I strongly hasten you to rely on real data and honest representations when analyzing any situation, eschewing the slanted missives of any propagandist, I realize that you may find their tracts too tempting to resist. If you do insist upon being led around by your nose, I think you should still at least find less destructive, less distortive, less obfuscating folks to influence you than the Lynn Schafrans of the world.

  14. #14 |  Bob | 


    All writing is slanted. Especially in a heated area like rape. I ignored the majority of that piece, and only focused on the crucial element… that the ‘victim’ was incapable of being anything but physically compliant to the sexual advances.

    The take away here is that men need to be seductive and sexually aggressive to get sex. If she’s compliant to that, I don’t see how a felony is being committed.

    As such, “Date Rape” is bullshit and should be wholly separated from violent rape, which is an actual crime.

    Let’s apply the same principal to the guy that sells Kirby Vacuum cleaners door to door. Let’s face it, no one in their right mind would spend 1,900 to 3,600 dollars on a vacuum cleaner when a really good one can be had at Sears for 400 bucks. Hell, the 70 dollar one at Wallmart will even do a decent job.

    1,900 to 3,600 dollars? That’s felony money! By Schafran’s logic, that guy is committing a felony by selling you that vacuum cleaner that you willingly bought.

    See how ridiculous it sounds when put like that? You don’t want to buy a Kirby? Tell the guy no and don’t let him in the house. You don’t want to be “Date raped”? don’t comply with sexual advances. It’s pretty simple.

    What’s not simple is defending yourself from false charges.

  15. #15 |  UCrawford | 

    @32…the part about him getting 10 minutes to decide was in the video clip. That was what Brian Banks said he was told.

  16. #16 |  UCrawford | 

    @51…It’s also important to note in this case there was no physical evidence. No evidence of either rape nor sexual intercourse. None…because the kid apparently didn’t even have sex with her (they “fooled around”). The video interviewed a former LA DA who worked in sex crimes saying that there shouldn’t even have been enough evidence to charge. So people can come up with all the excuses they want for how the PD is overworked, or how they don’t hire enough PDs, or how the standard procedure is to make snap judgments about a client without bothering to even look at his file…it still boils down to the PD not doing her job of representing her client. And you’re going to have an extremely tough time of convincing me that walking into a case completely ignorant of the facts and giving her teenaged client (who had no criminal history) 10 minute ultimatum to make a decision is doing anything remotely resembling her job. I don’t care if she had 1000 other clients…her obligation when she dealt with Brian Banks was to represent Brian Banks. Instead she ruined his life over something that never happened.

    And my thought on the broken system of public defenders is that if you actually start punishing public defenders who half-ass their cases you’ll give the lawyers an incentive to actually fix the system. This wink-wink “that’s just the way it is and you can’t expect more” mentality is half the problem.

  17. #17 |  UCrawford | 

    @59…that is an idiotic rationalization. That’s like Gwyneth Paltrow claiming she saved someone’s life on 9/11 because she hit someone who was on the way to the Twin Towers with her car. The PD’s actions had nothing to do with Banks’ accuser’s confession. Banks’ own attorney said absent that private investigator taping the conversation, Banks would have been stuck. Not to mention he’s still on a sex offender list even though the charges have been thrown out…so the consequences of his PD’s incompetence/half-assing still continues.

  18. #18 |  Weird Willy | 

    UCrawford, you win the Densest Poster of the Year Award! While judges for the Poster Least Capable of Offering an Intelligent Analogy Award are still in conference, it appears you are a strong candidate for that one as well! In making your acceptance speech, could you please tell us, how Gwyneth Paltrow hitting someone with her car would enable anyone to leave prison more than 35 years sooner than he otherwise would have? You are right that the “PD’s actions had nothing to do with Banks’ accusers confession [directly],” but that is obviously irrelevant to the point I made. The only outcome of the PD’s conduct that relates to the confession is circumstantial, in that Banks would not have been in any position to record his accuser’s confession had he not taken the plea deal. He would have been in prison, without any ability to meet with his accuser in private and record a confession she was not otherwise willing to share publicly.

    While I realize it might make your acceptances speeches run a bit long, could you also please tell us what advantage Mr. Banks would find in still being in prison and destined to spend the balance of his post-release existence (if any) as a registered sex offender? Why is that a superior outcome to the one he presently has, in which he walks the streets freely and may remove himself from the sex offenders registry? Others may find such a speech prolix, but others would undoubtedly find such explanations helpful, so please enlighten us, Genius.

  19. #19 |  Weird Willy | 


    “[I]f you actually start punishing public defenders who half-ass their cases you’ll give the lawyers an incentive to actually fix the system.”

    Genius, could you also explain how punishing public defenders for the constraints of the system would possibly help defendants? Last year I assisted on a case where the prosecutor was allowed to outspend us at a rate of 130:1, based on actual expenditures. Since we would not have enjoyed the benefit of having state employees contribute their services at salaried rates, but would have been forced to spend our paltry allowance in the market, the real ratio was probably at least 220:1. Due to this imbalance, the prosecution was able to lead a parade of forensic witnesses and consulting MDs whose time and contributions were funded by the public payroll, while my colleague was confined to obtaining a cursory letter from an expert that was ultimately inadmissible on the grounds that the expert would not appear (because we could not pay him to do so). Thus, the state’s “expert” case went without expert challenge in court, and a man who was likely innocent was sent to prison for a “shaken baby” death that I believe is more reasonably attributable to non-violent causes. It is unlikely that this guy will breathe free air again for well over another decade.

    No plea deal was offered in this case, because they knew we were utterly helpless and they had us by the balls. But if my colleague had been able to negotiate a plea, and perhaps receive a recommended sentence of only 1/10 the time he otherwise faced (as was offered to Banks), do you think his client would have been better or worse off? Should my colleague have been punished if he were able to negotiate such a deal? Should I have been punished for volunteering my time and services to the defense, either as a direct actor or as an accomplice to some evil deed?

    The average APD in Los Angeles County is responsible for well over 1,000 cases , with more than a dozen of those in open proceedings at any given time. PDs face prosecution teams that are able to outspend and out-resource them by massive amounts, and whose workloads are generally much lighter. Under the most favorable circumstances a PD may be able to share a public resource with the prosecution, but even then things are usually postured to favor the DA. Please tell us, Genius, how punishing PDs for being forced to “half-ass” it (whatever that means) under these circumstances would help ANYONE? Do you really think that defendants would be better off with NO representation, since no one would be willing to work as an ADA if they were to be punished for attempting to help in such a severely imbalanced and unjust system. Pray, Genius, enlighten us once again!

    I agree with the “former LA DA who worked in sex crimes” in that “there shouldn’t even have been enough evidence to charge.” That is completely irrelevant, however, in that Banks actually WAS charged, and almost certainly would have been convicted at trial. I can think of countless cases where a man has been convicted of rape without ANY physical evidence whatsoever. In the McCaffrey case, a rape kit was conducted within an hour after the alleged assault. It not only came back negative, but the clinician testified that in her professional opinion there was a zero probability that the accuser had had any sexual contact within the preceding 24 hours. Yet, McCaffrey was still convicted and spent nearly 4 1/2 years in prison before his accuser decided to recant. In the Gonzales case, the rape kit results were not only completely negative but the defendant had a nearly air-tight alibi. Please tell us, Genius, why professional observations that “there are thousands of men sitting in prison on the basis of nothing more than a sobbing, inconsistent accusation of a woman” should be ignored, when such observations are thoroughly supported by case evidence?

  20. #20 |  Weird Willy | 


    Parse, in his NPR interview Banks stated that his PD’s disclosures were much fuller than that. He said the she intimated to him the factors that would work against him, which included the fact that he was black male attending Long Beach Poly (an institution of predominately black enrollment heralded for its attendance by thugs), he was of large and intimidating stature, he could be portrayed as being full of himself and exhibiting Big Man on Campus syndrome, etc. He was also being tried as an adult for the abduction and rape of a 15-year old “child,” who was to be given extreme accommodation in her testimony. The only thing he had going for him was the absence of physical evidence, which often means next to nothing in a rape case, especially where (as here) the particulars of the report prevent a SAFE/SANE examination from being conducted. This case was nearly a slam-dunk for the prosecution, and he was fortunate that his PD was able to negotiate a plea that avoided a conviction for child rape and kidnapping with a sentence of 50-to-life.

  21. #21 |  UCrawford | 

    @Willy…Great, the lawyer told him he’s a black football player accused of rape in a case so he should give up even though the cops have no physical evidence and no, he doesn’t get to consult with his parents about it before making a decison. You’re absolutely right in that she did a stellar job as his attorney. He should thank her for only getting him sent to prison for six years for a crime that he not only didn’t commit but that didn’t even happen.

    If that’s what you find acceptable from a defense attorney, I feel sorry for anyone stuck with you and your standards of professional conduct representing them.

  22. #22 |  Weird Willy | 

    Idiot, your continued insistence on ignoring and distorting the facts and the scope of what is being asserted does not stand you in good stead. As I clearly stated, Banks’ attorney told him far more than that he was a Black football player, and far more than that he was accused of rape. She never prohibited him from discussing the deal with anyone, but he was operating under a time constraint imposed by the court and the DA that only allowed him 10 minutes to consider the plea. His attorney did not get him sent to prison for six years, the prosecution did that (along with a judge who sentenced him to the upper limit of the recommendation because Banks failed to show sufficient remorse for a crime he did not commit).

    I have asked you repeatedly to explain your position, but you steadfastly refuse to do so. Let me ask you again, why would Banks be better served by receiving a longer prison sentence? Why should ADAs be specially punished for advocating their clients’ interests under prohibitively disadvantaged circumstances? How could Banks’ have recorded his accuser’s confession if he were still in prison? Why is it better to be permanently listed on a sex offenders registry than to be able to remove oneself from it? Either provide answers, or just shut up!

    As for what inspires you to feel sorry, please know that since your sympathies are those of a dishonest imbecile, they really don’t matter much.

  23. #23 |  UCrawford | 

    Judging by your lack of tact and inability to control your temper, I now feel even sorrier for anyone you represent.

  24. #24 |  Weird Willy | 

    LOL…in fact, ROARING with laughter! This abject Moron has not only shown a consistent incapacity to maintain an even temper, but ACTUALLY INITIATED THIS EXCHANGE by calling me idiotic and then continued to purposely offend at every instance. Now, to find that this buffoon is so incredibly obtuse and insensible as to accuse *anyone* else of lacking tact or the ability to control his temper, is high comedy indeed! Perhaps even funnier is that this low-minded jackass continues to recourse to his sympathies, which no intelligent person on the planet would ever value in the least. They say that mental defectives, especially those deranged, anti-social sorts who have no sensibility for their own actions, often suffer diminished prospects for employment. Not this guy, however; this fool is so spontaneously laughable that he would have a rosy future as a skit writer for SNL! My goodness, what a funny little pea-brain!

  25. #25 |  Brain Banks, Victim Of A False Rape Accusation | | 

    […] This story is interesting.  Brain Banks was a star high school football player.  While in high school, he was the victim of a false rape accusation by Wanetta Gibson, after making out with her but not having sex. […]