The Bystander attended a very interesting event in London on 30th July 2019. The main speaker was none other than Justin Brooks, co founder and director of the California Innocence Project (#XONR8). By a video link was Brian Banks, their most famous exoneree.
Everyone was excited about a forthcoming movie which tells the Brian Banks story, it also features Justin Brooks both as a character and as an actor. The twitter account for the movie is @brianbanksmovie . Brian Banks Movie
The event was at CAPA London. I had not heard of this location before, I mainly go to tech meetups around Old Street, it was very good. CAPA is based in Boston but facilitates Study Abroad programs for mainly American Students and has locations around the globe. Justin taught a summer school at CAPA London.
The best way to learn about Brian Banks is go see the movie, it is due out in the US in a few weeks and in the UK a bit later.
Brian was arrested when he was a high school student, just 16 or 17 years old, and accused of raping and kidnapping a woman he knew (a student at the same school). Brian was an exceptional athlete at the time and was scouted for an athletics (Football) scholarship at USC (ranked 11th in the Country as a linebacker). He had spoken to Pete Carroll who at the time was a coach for USC but eventually the Seattle Seahawks NFL Team. I had heard of Pete when he was the coach of the New England Patriots some years before. In no time at all Brian went from having a possible future in the NFL to being a victim of the Californian justice system.
I had been following the case for some time but it was one of many, it was a great honor to be able to talk to the key players in person.
There was an interesting introduction and welcome by CAPA. She mentioned that John Christian, the CEO of CAPA, would have liked to have been there but it was a long way to come for one meeting. Looking at the syllabus it was quite intense and not obvious to me why such a detailed course would be at a summer school. It turns out John Christian is on the board of the California Innocence Project.
Justin explained that the US justice system is very heavily based around a system of “Plea Bargains” in which you trade a reduced sentence in return for admitting guilt. For the Innocent this is a very perverse system of justice. Justin has a few anecdotes that powerfully explain some aspect of the legal system. I already knew that the US has a very high incarceration rate but did not have a feeling for how high exactly. Justin points out that the US has more prisons and inmates than China. China has a population more than one billion greater than the US. Yet the US has a higher prison population, it is just stunning.
In the US more than 95 % of cases are plead out and there never is a trial. A favorite American saying is that you should “have your day in court”. In fact Brian did get multiple days in court, it took 9 months to go from arrest to Trial. His Lawyer said it was in his best interest to plea “no contest” (Nolo contendere). [This plea is now only available in the US but it was probably in the UK at one point]. Although still a child he was not allowed to talk to his Mother, who was waiting outside.
Brian was eventually offered a 6 year sentence if he admitted guilt but the prosecutor would go for a 41 years to life sentence at trial. He had just 10 minutes to make a life changing decision. He was only 17 and should never have been in adult court in the first place. He took the plea and began the 6 year sentence as a sex offender.
Part of the reason he took the Plea was that the prosecutors kept piling on charges. Although the alleged rape took place in a well known area at school where students were known to go to for some privacy, by the time he was offered his plea he had suddenly been charged with multiple counts of rape and worse. For men, what he was accused of would have been physically impossible in one brief encounter. That didn’t bother the prosecutors, they just wanted their win.
There were some steps to the 6 year sentence. As a part of the Plea Deal he was examined by psychiatrists, they decided he was innocent but cold only offer Felony Probation. It meant he would be heading home albeit under strict supervision. Although Brian thought this was a part of the plea deal it turns the judge thought otherwise.
Brian had tried to get involved with the California Innocence Project and was successful on his third attempt. The first time was from prison and the second time when he started parole. This was a bit of a revelation for me and it brings up the question as to what are the criteria are for being taken on as a client? A bit of background to this is that Common Law Jurisdictions really only give you one shot at proving your innocence. You may take a plea to negotiate a shorter sentence but once you have done that your plea becomes evidence. The courts zealously pursue a concept called “finality”. Common Law courts offer the chance of an Appeal but that is not what you think it is – unless you are a lawyer of course! Think of the law as a game, the Appeal is a way you can claim that the prosecutors broke the rules. However if you are viewed as having lost your trial but the prosecutors obeyed the rules – then you are trapped, they don’t really care if you did it or not. The Innocence Projects will accordingly only take you on if the very narrow criteria for an Appeal are met. I have been following Innocence Projects for a while and the first one I studied was Cardozo Law School. Even today, if you follow that link, they only take cases where Post-conviction DNA testing proves your innocence. As an Innocent person Brian was not able to do this. If I recall correctly this was because once evidence is considered “used” you can’t use it again. Brian discovered something else about his case that would reverse his conviction but go and see the movie to find out what!
One reason the California Innocence Project are so proud of this exoneration is that it was achieved while he was still a relatively young man and he was able to put his life back together again. Often when an Innocence Project obtains an exoneration it is only after the client has spent decades in prison. One example case is the Angola 3 that Clive Stafford Smith worked on.
There were questions after Brian gave his talk. The obvious one is what happened to his accuser? To this day he doesn’t know why she did that. We may never know because there is a Statute of Limitations on perjury by making a false statement about someone. Someone who accuses you has over 50 years. Justin added that because this was a plea deal the accuser was never questioned in court. Justin spoke to her eventually and formed the opinion, as did the DA, that she was not a credible witness.
Brian liked the book by James Allen: As a man thinketh. A great help that teaches you can really only control how you think about yourself.
Asked about how this affected his mother, Brian answered that it did affect her but it also affected his friends and other family. It affected his school and community.
Brian’s mother sold her house and sold her car to hire a private attorney. It didn’t matter though, the best the attorney could do was a get a plea deal.
Justin’s wife Heidi was in the audience, Brian recognized her as it was a two-way video link. She asked for a Ryan update – Brian has a six-month old son!
Brian ended with an appeal to all the prospective attorneys in the audience to keep on with their careers as there is a need around the world to help innocent people. Letting a bit on about the movie, it is dedicated to the young attorneys who make up the Innocence Projects.
Notes
Brian Banks has written a book what set me free
The book is available in England.
There is an interesting story here that covers the case, including naming his accuser [which Brian did not do at this event].