Judge H. Lee Sarokin
Prison is Hell for the guilty; it is difficult to envision what it must be like for the innocent. Brian Banks is yet another story of a person not only wrongfully imprisoned, but imprisoned based upon his own "voluntary" act. He was exonerated after serving five years for a rape he did not commit. How and why do innocent people confess or plead guilty to crimes that they did not commit? Roughly 20 percent of those that have been exonerated confessed to the crimes with which they were charged and convicted. Most of those involved persons who had actually gone to trial, but we have no way of knowing how many there are who merely entered guilty pleas through bargains and never appealed as a result. Although we hear and read about criminal trials, the reality is that only about 5 percent actually go to trial and the balance are resolved by plea agreements.
In this case Mr. Banks pleaded "no contest" or nolo contendere, a plea in which the defendant neither admits nor disputes the charges against him. In most instances, a defendant will be required to make a choice between a plea of guilty or not guilty. When pleading guilty a defendant is required to "allocate" before the judge -- admit the crime and furnish sufficient details to satisfy the court that he is indeed guilty. (One cannot help wonder how and by whom an innocent defendant is furnished with enough information about the crime to satisfy the court of his guilt.) That is not always the requirement in "no contest" pleas, and I do not know what transpired in the Banks case. If he had pled guilty he would have been required to admit the rape and testify to the details.
What apparently happened here (based upon his version) is all too typical of what happens in the criminal justice system. I call it the "Ins of Court" -- intimidation by the prosecution and incompetence by the defense. The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients -- a guaranteed short sentence versus a potentially long one -- possibly life in prison.
The problem is further complicated by the fact that it is more difficult to set aside a guilty plea than a conviction after trial. Once a person has admitted guilt and spelled out the details of the crime sufficient for the court to accept the plea, the chances of reversing such convictions are very slight if not nil. Most do not try. Mr. Banks had the fortitude to continue his fight even after he had been paroled and was fortunate in eliciting a recantation from the complaining witness. Such instances are very rare. Thanks to the tenacity of the California Innocence Project it happened here.
The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant's guilt before urging or accepting a plea. I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive not to imprison the innocent -- even those who profess to be guilty.
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