Held to answer

What a mockery justice becomes when guilt and innocence mean nothing.

Consider the case of Brian Banks, who served five years in prison for a rape he didn’t commit — but pleaded no contest to. He was cleared of all charges last week. His record is now clean.

Banks, a 6-foot-4, 225-pound football star at Long Beach (Calif.) Polytechnic High, was being courted by colleges like USC and UCLA in the summer of 2002 and hoping for an NFL career. According to the L.A. Times, while Banks was a senior attending summer school he crossed paths with Wanetta Gibson, a sophomore.

Gibson later wrote to a classmate about what happened, her note riddled with misspellings and grammatical errors: “He picked me up and put me in the elevator and he took me down stairs and he pulled my pants down and he rapped me and he didn’t have an condom on and I was a virgin now Im not.”

Banks said they fooled around, but it was consensual.

On the advice of his attorney, Banks pleaded no contest to rape and was sentenced to six years. Gibson and her mother, Wanda Rhodes, sued the Long Beach school district for not protecting her and settled for $1.5 million. (Some news accounts said they received $750,000; perhaps the discrepancy is related to attorney fees.)

Banks served five years in prison, got out, registered as a sex offender and tried to resume his life.

Then last year Gibson asked to friend Banks on Facebook. She wanted to “let bygones be bygones.” According to court documents quoted in the L.A. Times, she felt guilty that he wasn’t able to go to college and play football, and she wanted to “make amends.”

Banks is black, and his accuser is also black. I suspect that had his accuser been a white woman, this story would command more attention. Trayvon Martin would be fading from view, and the media would be quoting from “To Kill a Mockingbird.”

Instead, mainstream news media coverage has generally focused on Banks’ willingness to forgive Gibson, plus criticism of the U.S. legal system – as if judges and prosecutors should know with absolute certainty who’s lying. If they could do that, there would be no need for sworn testimony. As it is, the one person who did lie under oath in this case – Gibson – is not being held accountable.

“We do not plan on taking any legal action against Gibson,” said Banks’ attorney, Justin Brooks of the California Innocence Project. They are pursuing a claim against the state of California for $100 a day for each day Banks was imprisoned.

There is apparently nothing left of the settlement that Wanetta Gibson’s mother  won, so Banks can’t go after that. (Gibson, now 24, owes the state child support on her 4- and 5-year-old children. Since Gibson was a juvenile at the time of the settlement, the money was probably paid to her mother.)

The L.A. County District Attorney’s Office has said it would be difficult to prosecute Gibson for filing a false accusation. The statute of limitations is four years, and she testified at a preliminary hearing in 2003. However, she told Banks and his private investigator in a secretly videotaped conversation last year, “No, he did not rape me.” Legal experts say the statute of limitations could restart at the point when the perjury was discovered.

But prosecutors cite other complications. Gibson was a juvenile when she initially made the accusation against Banks. In addition, after meeting with Banks and his investigator, she has since recanted her recantation for fear she would have to pay back the settlement.

While the mainstream media have gone easy on her, black Websites have not.

“This is the face of EVIL!!!” screamed a headline over several photos of Gibson posted on on at blacksportsonline.com.

Some of the comments are a reminder that rape victims have historically been treated like criminals or, at least, damaged goods. Some of the comments are a reminder that rape is traditionally a crime males visit upon females.

“I’d rape & murder her in a heart beat,” wrote Todd, who wasn’t the only guy offering to kill her – after he’d taken pleasure from her body.

This is what females have always had to contend with. Which is why it’s so troubling that feminists like California’s U.S. Sen. Barbara Boxer and groups like the National Organization for Women have remained silent about this case.

Why not call for Gibson to be prosecuted for perjury? Any progress that has been made in taking rape cases seriously is lost when the public sees a false accuser go unprosecuted.

Banks’ decision to forgive Gibson doesn’t help. Nor did his willingness to plead no contest to a rape he didn’t commit. You could argue that he was young and received bad legal advice. But you would have to be privy to the conversations between him and his attorney to fully understand why his lawyer suggested he take a plea bargain. Did Banks concede details to his attorney that influenced the attorney’s advice to plead no contest?

That attorney also has gotten off easy. None of the news stories I’ve read have named her (a couple referred to her with the feminine pronoun). Even if she thought he was guilty, as a defense attorney she is there to ensure the state proves its case.

It’s hard to understand why the state of California should pay Banks, while his accuser and attorney are not held accountable. It’s not as if he were wrongfully convicted because of false testimony from a police officer – Banks pleaded no contest, which is treated as a guilty plea. The state incarcerated him accordingly.

What he does have now is a compelling story to tell that should legitimately earn him money,

Banks said that when he first heard from Wanetta Gibson, “I got down on my knees and prayed to God to help me play my cards right.”

And he has. This is what justice increasingly looks like.

Wanetta Gibson’s mother, Wanda Rhodes, probably thought she was playing her cards right when she chased a lawsuit against the school district.

The school district’s insurance carrier probably thought it was playing its cards right when it settled out of court rather than take the mother and daughter to trial.

The California Innocence Project came on board after Banks secured the videotaped recantation of Gibson. Brooks, his new attorney, speaks confidently about what went wrong in the case.

In an interview on Southern California radio station KPCC, Brooks stated that racism “surely played a part in what happened.”

He didn’t mention the race of the false accuser. Looks like he’s playing his cards right, too.

– Pamela Fitzsimmons