At the Legal Ethics Forum (LEF), John Steele has a post on the Brian Banks story in the news the last couple of days. First, we’ll introduce the basics of the story, courtesy of the Los Angeles Times (May 25, 2012). What follows are the comments to date at LEF, where John asks, “The focus should be on Brian Banks, but I can’t help but wonder: what is it like for a lawyer to advise an innocent client to plead guilty?”
Brian Banks spent years in prison, branded a rapist. Then his accuser provided the key to getting his conviction dismissed.
By Ashley Powers
“Brian Banks logged onto Facebook last year, and a new friend request startled him. It was the woman who, nearly a decade ago, accused him of rape when they were both students at Long Beach Poly High School. Banks had served five years in prison for the alleged rape, and now he was unemployed and weary. So he replied to Wanetta Gibson with a question: Would she meet with him and a private investigator? She agreed.
At the meeting, which was secretly recorded, Gibson said she had lied. ‘No,’ she was quoted as saying, ‘he did not rape me.’ That admission set off an extraordinary chain of events that culminated Thursday morning. A Los Angeles County Superior Court judge dismissed Banks’ conviction, ending 10 years of turmoil in a hearing that lasted less than a minute. [….]
In the summer of 2002, Banks was considered a top college football prospect. A 6-foot-4, 225-pound middle linebacker at Long Beach Poly High, Banks said he had been courted by USC, UCLA, and other football powerhouses. He was attending summer school, and asked his teacher for permission to leave class so he could make a phone call, according to court papers. Then Banks, a senior, ran into Gibson, a sophomore. Banks said they fooled around, but that their sexual contact was consensual. His mother, Leomia Myers, believed him, and said she sold her condo and her car to pay for his defense. ‘I knew I didn’t raise my son to do something so horrendous,’ she said.
Gibson’s version shifted over the years. She could not be reached Thursday for comment. [….] But when she testified during Banks’ preliminary hearing, Gibson faced the rigorous questioning typical in sexual assault cases. She changed some details and added others, Banks’ attorneys alleged in court documents.
Banks had a choice: He could take the he said-she said case to trial and, if convicted, risk being sentenced to 41 years to life in prison. Or, as his lawyer advised, he could accept a plea deal.
Banks pleaded no contest to one count of forcible rape, spent five years in prison and, upon his release, was forced to register as a sex offender and wear an electronic monitoring bracelet. At one point, he begged the California Innocence Project in San Diego for help, but he was told that without new evidence, there was nothing its attorneys could do. [….]
Meanwhile Gibson and her family sued the Long Beach schools. They settled the case for $1.5 million. Gibson’s mother, Wanda Rhodes, could not be reached Thursday for comment. [….]
According to Banks and his private investigator, Gibson refused to tell prosecutors that she had lied, so that she wouldn’t have to return the money she and her family had won in court. She also said she feared it would affect her relationship with her children, Banks’ attorney alleged in court papers. But her taped admission was enough to interest the Innocence Project attorneys, who said they had never before taken the case of someone already released from prison. When they reexamined Banks’ case, said Innocence Project attorney Justin Brooks, investigators also found other evidence to back up his claims.
After the alleged rape, no male DNA had been detected on Gibson’s underwear, his attorneys said. 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. 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. [….]
Yours truly begins the comments at LEF (hyperlinks added):
“I can’t answer the question, but I suspect this occurs more often than we’d care to admit, especially for indigent defendants,* and given both the case loads of public defenders (including their wish to maintain a decent or working relationship with the prosecutor) and the nature and degree of the discretionary power of the prosecutor during the (largely invisible) plea bargaining process. For example,
‘Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.’ Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (1991)
William J. Stuntz provides us with another explanation in The Collapse of American Criminal Justice (2011), ‘In the inevitably selective business of criminal punishment, selections are often made on perverse criteria. The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit. And within the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.’ As Stuntz also notes, plea bargains ‘are no longer a means of settling easy cases, which is their proper role.’Two examples that are perhaps representative and at least illustrative: See the case of Emma Faye Stewart as told in Angela J. Davis’s Arbitrary Justice: The Power of the American Prosecutor (2007): 50-52, as well as the 2008 film, American Violet. The latter
‘tells the story of Dee Roberts (Nicole Beharie), a 24 year-old African-American single mother of four, living in a small Texas town (based after Hearne, Texas where the real incident took place). One day, while Dee is working a shift at the local diner, the powerful local district attorney (Michael O’Keefe) leads a drug bust, sweeping Dee’s housing project. Police drag Dee from work in handcuffs, dumping her in the women’s county prison. Indicted based on the uncorroborated word of a single and dubious police informant facing his own drug charges, Dee soon discovers she has been charged as a drug dealer.
Even though Dee has no prior drug record and no drugs were found on her in the raid or any subsequent searches, she is offered a hellish choice: plead guilty and go home as a convicted felon or remain in prison and fight the charges thus, jeopardizing her custody and risking a long prison sentence.’
Dee’s public defender counsels her to take the deal, and it appears he knew the charges were likely false: ‘In the film, the public defender urges the character named Dee Roberts to accept a plea bargain. The actual public defender claims he never tells innocent clients to take a plea.’ Of course not, what public defender would publicly confess to such behavior?”
* Keep in mind that even “grossly incompetent lawyering,” as Monroe Freedman reminds us, “is not enough to establish ineffective counsel,”and that the current criminal justice system—especially for poor people—is, in Freedman’s pithy characterization, “unethical, unconstitutional, and intolerably cruel.”
Monroe Freedman: “I agree with Patrick about the evils of plea bargaining, which are heightened by prosecutors’ overcharging for bargaining purposes, and by incompetent defense lawyers.
However, the defendant is entitled to know how the system works (i.e., coercing pleas to avoid the expense to society of honoring the right to trial by jury) and to be counseled to take a plea to a lesser offense rather than taking the substantial risk of spending the rest of is life in prison, or being executed. The issue is discussed in Understanding Lawyers’ Ethics (4th ed., 2010): 58-62, including a discussion of the dilemma of the lawyers representing the Unabomber, who was refusing to take the plea that would have saved his life.”
John Steele: “Patrick, thanks. There is also a well-done scene in the movie Criminal Justice where the lawyer and client discuss the pros/cons of pleading guilty to a crime that they know the client didn’t commit.”
Alice Woolley: “I think this is one of the most difficult ethical dilemmas for defense lawyers, and it is heightened by criminal justice systems which make the consequences of conviction so extreme. In Canada it is unethical for a lawyer to counsel a client to accept a guilty plea unless the client can honestly attest to the factual and mental elements of the offence (i.e., does not plausibly maintain his or her innocence). But as we move to a more extreme criminal justice system, with the introduction of severe mandatory minimum sentences for a broad variety of crimes, criminal defence lawyers have to weigh the factors noted by Monroe. That is, they need to be honest with their clients about the likelihood and consequences of conviction given how the system works. What is the balance between the existential harm of a wrongful confession and the lived harm of a life of incarceration and all of the subsequent consequences to that?
When I present this issue to my students they generally want to avoid the hypothetical - show how they will be able to obtain an acquittal for the client. But that just evades the basic problem.
I think one of the best discussions of this is in Abbe Smith’s book, Case of a Lifetime: A Criminal Defense Lawyer’s Story (2008) when she talks about the fact that the client she represented did not take a favourable plea deal because the client was innocent, and ended up spending decades in jail as a result. Abbe does a terrific job of laying out the ethical problem, and making it clear where she thinks the duties of the lawyer lie.
Ultimately perhaps this is a case where the solution lies with the prosecutor - to not play the game of piling on charges to make the consequences of not taking a plea so extreme. But prosecutors are under pressure too, and they have to live with a system which puts the mandatory minimum sentences in place. It’s not obvious that simply declining to apply the laws is ethical for a prosecutor either.”