Merged Brian Banks case / What should happen to his accuser?

[Chris_Halkides]

incentive

That's the problem I see: both the school district and mr. Banks are, IMHO, entitled to that money, but the one who has to pay has no incentive whatsoever to earn the money they should pay in the first place.

ddt,

If she were given a suspended sentence with the stipulation that she pack back some reasonable fraction of the amount, that might be a way to add in an incentive.

 

[commandlinegamer]

The sentence disparity here seems bizarre.

In the UK there was controversy last year when the Justice Secretary, Ken Clarke, announced further reductions in sentences for those who plead guilty early:

http://www.guardian.co.uk/law/2011/jun/20/ken-clarke-abandon-sentence-cuts

But this 18 months or 41-years-to-life deal, if accurate, seems to fly in the face of allowing the defendant the right to a fair trial.

 

[Wildy]

She initially contacted him but did not follow through, and she also was only fifteen.

She was 15 when the "crime" happened. When she contacted him she would have been in her 20's.

Both of these are mitigating factors in the present situation (for me the second is of greater import than the first).

Why? Are you saying that a 15 year old doesn't understand the difference between right and wrong?

And personally I would only consider the first to be a mitigating factor if she had followed through. Banks' only managed to get his conviction overturned because he had the foresight to record a conversation with her where she admitted everything.

I am not wedded to the idea of a suspended sentence in this case; I just threw it out for consideration. However, my understanding of a suspended sentence is that it hangs over one's head until the period of probation has been completed. It might be linked to her and her mother paying restitution, for example.

Now I'm not a lawyer but I would assume that Gibson would only have to pay restitution to Banks if he filed a civil suit against them. Restitution for his imprisonment would have to come from the government.

I guess restitution could be demanded from Gibson by the state due to the fraud, but that money would go back to the school district and not to Banks.

But neither of this would really be a punishment for the false accusation that was made.

More generally, I would say that a false accusation is an odd-duck sort of crime. Most crimes I can think of hold out the possibility of being proved without the accused making a confession, and some confessions happen only after evidence has been accrued. Some false accusations would never be identified as such unless the false accuser spoke up. Even cases in which the accused had an ironclad alibi could be explained by the accuser making a mistaken identification in some instances.

Legal journalist Stuart Taylor and historian KC Johnson wrote a book about the Duke lacrosse case (Until Proven Innocent). On page 381 they wrote, "And even accusers who admit that they have lied should usually be given a break lest other false accusers be deterred from recanting by fear of punishment. But when it is clear that the accuser has lied and refuses to recant, the accuser should be prosecuted...to deter others from doing the same." Taylor and Johnson do not specify what they mean by break. Perhaps they mean a reduced sentence, but that is my speculation.

You mean a break like the one that Crystal Magnum got after the Duke lacrosse case where she got to walk away scot free?

And the bold bit, that's essentially what Gibson has done in the eyes of the law. She got someone she was apparently friends with locked up, scammed her school district out of $1.5 million, and essentially refused to recant because she didn't want to have to pay the money back. Perhaps the school district will let her slide on the fraud to allow people who have committed fraud to come forward without fear of being punished?

I still think that this reasoning is stupid for the simple reason that they shouldn't be making these accusations in the first place. And I think it also helps increase the number of false accusations since people see that they can ruin someone's life and get a slap on the wrist for doing so.

 

[Chris_Halkides]

hog waste

The sentence disparity here seems bizarre.

In the UK there was controversy last year when the Justice Secretary, Ken Clarke, announced further reductions in sentences for those who plead guilty early:

http://www.guardian.co.uk/law/2011/jun/20/ken-clarke-abandon-sentence-cuts

But this 18 months or 41-years-to-life deal, if accurate, seems to fly in the face of allowing the defendant the right to a fair trial.

commandlinegamer,

You raise an important point. Now that I think on it, the matter of overcharging (leading to very long sentences) is certainly not specific to this case. It is probably a tactic used to encourage plea deals, either for the person being charged or for the person who sees another being handed a very long sentence. I recall that some innocent people in the Tulia, Texas debacle pled guilty (despite being innocent), to avoid sentences of many years. "One of the harshest sentences of all - 90 years - went to Joe Moore, a 60-year-old hog farmer who has lived much of his life in this one-room shack. Authorities described him as the drug kingpin of Tulia."

 

[jasonpatterson]

So she wasn't the only liar. If he was innocent then he should have pled Not Guilty. Perhaps if he had done so then the justice system would have been able to do its job, and none of the rest would have happened?

Plea bargaining IS part of the justice system, for better or for worse. More than 9 out of 10 criminal cases end in plea bargains rather than jury trials, and it's foolish to believe that they're all cases of the guilty pleading guilty. He was told that he would serve at most 3 years in prison and had a good chance or only winding up on probation. The judge gave him a much longer sentence (10 years?) partly because he was insufficiently remorseful over his 'crime.' If I were a 16 year old kid accused of rape and potentially facing 40 years in prison, and my lawyer told me that if I plead no contest I had a good chance of getting nothing other than probation, I'd have to think long and hard before I decided.

Did the accused and accuser have sex, as opposed to making out?

Nope, no sex. Dunno about the medical examination. If I were her I would have waited a day or two before filing the report anyway, and then it would be entirely he said/she said. People get sent to prison on that sort of thing all the time.

According to the LA Times, it looks like they aren't going to do anything about her. If the story is right, there is a good chance that there will be no criminal or civil charges against her, either from the city or Banks himself. He has filed a claim with the government for $100/day of imprisonment, a pretty miserable deal even if he wins. Apparently the statute of limitations is already past for her actual crime.

 

[Chris_Halkides]

I am all ears

She was 15 when the "crime" happened. When she contacted him she would have been in her 20's.



Why? Are you saying that a 15 year old doesn't understand the difference between right and wrong?

And personally I would only consider the first to be a mitigating factor if she had followed through. Banks' only managed to get his conviction overturned because he had the foresight to record a conversation with her where she admitted everything.



Now I'm not a lawyer but I would assume that Gibson would only have to pay restitution to Banks if he filed a civil suit against them. Restitution for his imprisonment would have to come from the government.

I guess restitution could be demanded from Gibson by the state due to the fraud, but that money would go back to the school district and not to Banks.

But neither of this would really be a punishment for the false accusation that was made.



You mean a break like the one that Crystal Magnum got after the Duke lacrosse case where she got to walk away scot free?

And the bold bit, that's essentially what Gibson has done in the eyes of the law. She got someone she was apparently friends with locked up, scammed her school district out of $1.5 million, and essentially refused to recant because she didn't want to have to pay the money back. Perhaps the school district will let her slide on the fraud to allow people who have committed fraud to come forward without fear of being punished?

I still think that this reasoning is stupid for the simple reason that they shouldn't be making these accusations in the first place. And I think it also helps increase the number of false accusations since people see that they can ruin someone's life and get a slap on the wrist for doing so.

Wildy,

KC Johnson supported Attorney General Cooper's decision not to bring charges against Ms. Mangum. Mr. Cooper said that she may have believed her own stories, and Ms. Mangum was thought to be mentally ill at the time, partly on the basis of sealed medical records. A couple of years ago I read her autobiography, and I wondered about her mental health also. Subsequent events do not contradict these assessments.

I think your question about right and wrong is simplistic. I don't think that 15 year olds are fully mature, and I have to wonder to what degree the mother is to blame in this instance. A better system than our present, binary one (either you are a juvenile or you are an adult) would be to punish on a sliding scale based on age. With respect to the present case, I favor the family paying back as much of the 1.5 million as is possible, perhaps as part of a suspended (or shortened) sentence. I thought that I made this clear already but you seem to be laboring under a misapprehension, given your comments about fraud. In addition, I would expect that the family will pay a sum of money for damages if a civil suit is brought. In addition, I am not yet convinced that the state of California is blameless here. There were indications that her story was made up, and it is unclear to me how carefully they investigated her allegation. Mr. Banks said that the two never had sex. Therefore, for them to pay Mr. Banks restitution for time he was imprisoned does not presently sound to me entirely unjust (although $100 per day seems way too low).

One can usually prove fraud and many other crimes without someone's confessing, but that is often not the situation for false accusations (this is the first time that I have heard of a case in which a false accuser will recant privately but not publicly, though I am confident that it is not unprecedented). Moreover, it does not seem to me that you have addressed the problem that Taylor and Johnson noted, namely that one wants to encourage false accusers to recant. One balances the advantages of discouraging false accusations against the advantages of encouraging withdrawals of them. If you are smarter or better informed than Stuart Taylor and KC Johnson put together, let's hear your suggestions. MOO.

 

[Wildy]

KC Johnson supported Attorney General Cooper's decision not to bring charges against Ms. Mangum. Mr. Cooper said that she may have believed her own stories, and Ms. Mangum was thought to be mentally ill at the time, partly on the basis of sealed medical records. A couple of years ago I read her autobiography, and I wondered about her mental health also. Subsequent events do not contradict these assessments.

Then perhaps the AG was correct in that decision. But since we don't know what is in her medical records it's a bit hard to discuss. For the record here though I would like to point out that she was found to be sane enough to stand trial for murder.

I think your question about right and wrong is simplistic. I don't think that 15 year olds are fully mature, and I have to wonder to what degree the mother is to blame in this instance.

But you would agree that a 15 year old would understand that lying about being raped resulting in a friend going to jail and put on the sex offenders registry in order to defraud a school district of money is wrong right?

A better system than our present, binary one (either you are a juvenile or you are an adult) would be to punish on a sliding scale based on age.

I think quite a few people (myself included) could agree to such a system.

With respect to the present case, I favor the family paying back as much of the 1.5 million as is possible, perhaps as part of a suspended (or shortened) sentence. I thought that I made this clear already but you seem to be laboring under a misapprehension, given your comments about fraud.

There are two distinct crimes that we are looking at here. The first is the false accusation and the second is the instance of fraud. What you are suggesting isn't a punishment for falsely accusing Banks of rape but a punishment for defrauding the school district. Since you want them to pay back the money, does that mean you would support a second suspended sentence for the false accusation?

In addition, I would expect that the family will pay a sum of money for damages if a civil suit is brought.

I get the feeling that this isn't going to happen. Especially considering that his claim for compensation from the government seems to be a rate that would clear the matter quickly.

In addition, I am not yet convinced that the state of California is blameless here. There were indications that her story was made up, and it is unclear to me how carefully they investigated her allegation.

Of course they're not blameless.

Mr. Banks said that the two never had sex. Therefore, for them to pay Mr. Banks restitution for time he was imprisoned does not presently sound to me entirely unjust.

By them do you mean the government or the Gibsons?

One can usually prove fraud and many other crimes without someone's confessing, but that is often not the situation for false accusations (this is the first time that I have heard of a case in which a false accuser will recant privately but not publicly, though I am confident that it is not unprecedented).

In this case however the admission from the accused about the rape accusations being false provides strong evidence for fraud, since without Banks being convicted of rape Gibson would never have gotten that money.

Moreover, it does not seem to me that you have addressed the problem that Taylor and Johnson noted, namely that one wants to encourage false accusers to recant. One balances the advantages of discouraging false accusations against the advantages of encouraging withdrawals of them. If you are smarter or better informed than Stuart Taylor and KC Johnson put together, let's hear your suggestions. MOO.

Moo?

I'll be frank here. The reason why I didn't address the problem that Taylor and Johnson noted is quite simply because I don't want to encourage these people to recant. I don't want them to make false accusations in the first place. There seems to be this dichotomy where we're all told "rape is bad" but when we get false accusations made like in this case we get the message "lying about rape is perfectly fine". If that means giving proper punishments to people who make false accusations so be it.

But the other thing is do we have any evidence that giving these people a slap on the wrist has encouraged others to come forward?

 

[Chris_Halkides]

long probation

But you would agree that a 15 year old would understand that lying about being raped resulting in a friend going to jail and put on the sex offenders registry in order to defraud a school district of money is wrong right?
SNIP
There are two distinct crimes that we are looking at here. The first is the false accusation and the second is the instance of fraud. What you are suggesting isn't a punishment for falsely accusing Banks of rape but a punishment for defrauding the school district. Since you want them to pay back the money, does that mean you would support a second suspended sentence for the false accusation?
SNIP
By them do you mean the government or the Gibsons?
SNIP
But the other thing is do we have any evidence that giving these people a slap on the wrist has encouraged others to come forward?

Wildy,

I think that a 15 year old knows it is wrong intellectually, but I think that many people of that age lack the empathy to understand it fully. We seem to be in agreement about the sliding scale.

Ms. Mangum's medical records were 1000 pages long as of 2009 and she was apparently prescribed anti-psychotic medication at some point. IIRC her mother also suffered from mental illness.

I support the government's paying Mr. Banks for imprisoning him. I would support the Gibson's paying him if he brought civil action (which he has said he would not), and I would support their paying back as much of the $750,000 as possible (the figure of 1.5 million is incorrect, according to a link upthread).

As far as the punishment for the false accusation goes, I don't support the commenter above who suggested the death penalty. I am open to suggestions, but I think either a suspended sentence or a brief prison sentence is more appropriate than a sentence of many years. Either way a long probationary period should be part of the sentence. As a recovering blogger on the Duke lacrosse case, I am among the least likely people to condone lying about rape; my position on the punishment for recanting false accusations is not borne of a belief that such accusations are not serious. MOO means my opinions only.

 

[sadhatter]

If the penalty against a false accuser is too great, it may discourage one from voluntarily stepping forward. Perhaps a suspended sentence is appropriate for one who voluntarily recants his/her false allegation. The present case is more than a little murky in that regard. Tangentially, it is sometimes the case that a recantation is not enough to bring about an exoneration.

That is seriously absurd, and trust me "seriously" was not my first choice of word.

Why on earth, would anyone, as a legitimate victim, give a **** about what happens to someone who tries to pin a crime on someone? If the person did not do anything to make up a story, there isn't going to be any evidence that they did so. They may be mistaken, but that is going to be a whole different kettle of fish, evidence wise than someone who deliberately is trying to pin a crime on someone.

Sure, there is the old "But some corrupt lawyer could paint it as such." argument, used for many different topics, but if he is that corrupt, he is going to find a way to screw you no matter what.

False accusations, especially of rape, are inexcusable, they are a waste of the legal system's time, and put innocent people through hell, using the very system designed to protect them. They should be dealt with swiftly , and severely.

 

[Chris_Halkides]

please explain

That is seriously absurd, and trust me "seriously" was not my first choice of word.

Why on earth, would anyone, as a legitimate victim, give a **** about what happens to someone who tries to pin a crime on someone? If the person did not do anything to make up a story, there isn't going to be any evidence that they did so. They may be mistaken, but that is going to be a whole different kettle of fish, evidence wise than someone who deliberately is trying to pin a crime on someone.

Sure, there is the old "But some corrupt lawyer could paint it as such." argument, used for many different topics, but if he is that corrupt, he is going to find a way to screw you no matter what.

False accusations, especially of rape, are inexcusable, they are a waste of the legal system's time, and put innocent people through hell, using the very system designed to protect them. They should be dealt with swiftly , and severely.

sadhatter,

Okey dokey; we have someone else who thinks he or she is smarter than Stuart Taylor and KC Johnson put together (see quotation from Until Proven Innocent upthread). Let's hear your reasons. BTW, I agree that a case of mistaken identification is an entirely different situation. I am not inflexible on the penalty; a short prison sentence followed by a long probation is fine by me. It is the question of striking a balance between discouraging false accusations and encouraging recantations about which I feel more strongly. It is interesting that you had nothing to say about the commenter who suggested the possibility of the death penalty. Unless one believes that a sufficiently severe penalty (perhaps death) is going to push the number of false allegations to zero, one has to contend with the question of how to deal with voluntary recantations.

Within the last two years I have worked with a family whom I believe has been victimized by a false allegation of rape. You don't have to convince me that false allegations are a blight on the system. MOO.

 

[tyr_13]

sadhatter,

Okey dokey; we have someone else who thinks he or she is smarter than Stuart Taylor and KC Johnson put together (see quotation from Until Proven Innocent upthread). Let's hear your reasons. BTW, I agree that a case of mistaken identification is an entirely different situation. I am not inflexible on the penalty; a short prison sentence followed by a long probation is fine by me. It is the question of striking a balance between discouraging false accusations and encouraging recantations about which I feel more strongly. It is interesting that you had nothing to say about the commenter who suggested the possibility of the death penalty. Unless one believes that a sufficiently severe penalty (perhaps death) is going to push the number of false allegations to zero, one has to contend with the question of how to deal with voluntary recantations.

Within the last two years I have worked with a family whom I believe has been victimized by a false allegation of rape. You don't have to convince me that false allegations are a blight on the system. MOO.

You know, you have a fairly well supported line of reasoning going. Your straw man, appeal to authority, and whatever they call the 'really care' fallacy is do it a disservice.

Perhaps these poster you keep accusing aren't arguing that they're 'smarter' than the combined experts you cite but simply disagree with them. Also there might be a myriad of reasons not to discuss the death penalty comment that are not interesting in the way you believe them to be. If you stick to your other lines of argument, your position will appear stronger.

 

[Wildy]

I am open to suggestions, but I think either a suspended sentence or a brief prison sentence is more appropriate than a sentence of many years. Either way a long probationary period should be part of the sentence.

How brief of a prison sentence?

As a recovering blogger on the Duke lacrosse case, I am among the least likely people to condone lying about rape; my position on the punishment for recanting false accusations is not borne of a belief that such accusations are not serious.

So what is it borne on? The opinion of Taylor and Johnson? Or on evidence that has not been presented in this thread?

 

[Caper]

Does anyone know if the girls parents put her up to this?

 

[Chris_Halkides]

follow the money?

Does anyone know if the girls parents put her up to this?

I wonder who controlled the money from the settlement. From the LA Times link upthread, "Court records suggest she has few assets: She received public assistance for a time and her children, ages 4 and 5, still do, according to two suits brought by the county in an attempt to collect child support.

"Gibson, who could not be reached for comment, was ordered initially to pay $600 a month toward their support. But in the last year, county officials said she didn't have to pay anything, citing a lack of income and employment." Back later.

 

[Draca]

A deputy district attorney told the Los Angeles Times that the office does not plan to pursue charges against Gibson, because proving that she committed a crime would be difficult. Long Beach school officials could not be reached for comment Friday, but Brooks said it is unlikely the district would try to recover the settlement payment.

http://www.utsandiego.com/news/2012/may/26/tp-exonerated-man-thanks-law-school/?page=2#article


I don't understand why it would be hard to prove she lied when they have her on tape admitting to it. I think it's wrong of the state not to pursue the return of the money. It's the public's money and a huge amount at that. Why let them get away with this? I think the state should absolutely go after the girl and her family for the return of the settlement they received based on her lies.

 

[fuelair]

While I don't have a problem with the concept of sentence reductions and plea bargains, the disconnect between the two sentences in this case is really shocking.

How could anyone, particularly a district attorney who is at least meant to be concerned with justice, be equally happy with sentencing the same man to either 18 months or 41 years to life for the same crime? At least one of those two sentences must be patently unjust.

The disconnect is because prosecutors are lazy and hope to not have to do any real work so they offer a deal that is way lower than the defendant could get at trial UNLESS found not guilty. The disconnect is pretty much always a big one.

 

[fuelair]

I find this a little bit of an odd statement. Do you consider the accuser's behaviour to be widespread and the number of people falsely imprisoned for rape to be very high?

I think a number of people doing rape are never found out and a number of people not doing it are falsely convicted through prosecutoreal zeal. I would really love a new law barring presecutors from eligibility from any elected office for a period of at least ten years after they leave their position. Might relieve some of the enthusiasm for getting convictions regardless of the actual guilt/innocence of the accused.

Please note, I have never been arrested/faced criminal charges. This is not sour grapes/revenge thing - it is just recognition that legal people have done VERY BAD THINGS simply to win cases with no regard for actual guilt or innocence. That is not how a legal system should work. The legal system should have one and only one goal: stomp down the guilty and protect the not guilty. ALL parts of the legal system.

 

[Chris_Halkides]

Why not ask the people who have thought about the issue

How brief of a prison sentence?

So what is it borne on? The opinion of Taylor and Johnson? Or on evidence that has not been presented in this thread?

Wildy,

If I said the opinion of Taylor and Johnson and left it at that, it would be a pretty good answer. I can't think of a better legal journalist than Stuart Taylor, and KC Johnson's coverage of the Duke case at his blog has been thorough and insightful (no wonder he won an award for it). However, it might be worth trying to work our way through this issue ourselves.

I agree that you have presented no evidence. In an earlier comment you wrote, "But the other thing is do we have any evidence that giving these people a slap on the wrist has encouraged others to come forward?" I don't know of any statistics on this subject, and I doubt any exist. However, I do know of some estimates of the frequency of false rape claims, and they range from 9% to 41% (Taylor and Johnson, p 374). These claims were made despite the fact that making a false accusation is a crime, as is perjury. I'll make it easier for you: it might be more fruitful to argue that more false accusers should be prosecuted than to argue that the penalty should be heftier.

I think that the law should distinguish between false accusers who do versus don't recant, by making the penalty for the former much smaller. One, we do this for many other crimes. Two, it gives investigators who come to doubt a claim a chance to let the accuser stand down. I don't have a particular period of incarceration to which I am wedded, but I think it should be shorter than for someone who does not recant. However, suspended sentences are sometimes used for a person without a previous criminal record.

 

[Wildy]

I agree that you have presented no evidence.

I'm glad to see that you took tyr_13's advice to heart. Oh, wait, that's not what I meant at all. I meant I'm saddened to see that you completely disregarded his well thought out advice and decided to levy an attack against me based on a strawman. Bravo *slow clap*.

In an earlier comment you wrote, "But the other thing is do we have any evidence that giving these people a slap on the wrist has encouraged others to come forward?" I don't know of any statistics on this subject, and I doubt any exist. However, I do know of some estimates of the frequency of false rape claims, and they range from 9% to 41% (Taylor and Johnson, p 374).

Which is all well and good, but I'm asking you about the evidence behind their statement on page 381 that you referenced here. Surely these two exemplary gentlemen had some evidence supporting that statement?

These claims were made despite the fact that making a false accusation is a crime, as is perjury.

And why do you think that is? I would say that it's in part played by a lack of punishment for such crimes.

I'll make it easier for you: it might be more fruitful to argue that more false accusers should be prosecuted than to argue that the penalty should be heftier.

I'm arguing that they should be punished, you can't punish these people without prosecuting them. For this specific case "punishment' would include actual jail time.

 

[Chris_Halkides]

appeal to authority

You know, you have a fairly well supported line of reasoning going. Your straw man, appeal to authority, and whatever they call the 'really care' fallacy is do it a disservice.

Perhaps these poster you keep accusing aren't arguing that they're 'smarter' than the combined experts you cite but simply disagree with them. Also there might be a myriad of reasons not to discuss the death penalty comment that are not interesting in the way you believe them to be. If you stick to your other lines of argument, your position will appear stronger.

tyr_13,

An appeal to authority may either be correct or fallacious. I don't know why you call it a straw man, and I am entirely unfamiliar with the term 'really care' fallacy. Can you explain? Moreover, I am not making the assertion that what Taylor and Johnson say must be true, only that it ought to be carefully weighed. I don't have a problem with people disagreeing with the citation I gave, but I wish they would lay out their reasons carefully and/or provide citations to experts of equal or greater authority.