Former Poly football player to ask for exoneration after victim allegedly recants rape charge

5-25-2012 California:

LONG BEACH - A former Poly High School football player who was convicted in 2003 for raping a female classmate will ask a Superior Court judge on Thursday to exonerate him after the victim reportedly said she lied.

Brian Banks, 26, had been charged with raping a 15-year-old acquaintance on the Poly campus while the two were taking summer classes in July 2002. Banks maintains the encounter was consensual.

Although he was 17 at the time, Banks was charged as an adult, initially facing two counts of forcible rape and one count of sodomy by force.

He pleaded no contest to one count of forcible rape and served five years and two months of a six-year sentence in state prison. After he was released, he was forced to register as a sex offender.

The victim sued the Long Beach Unified School District, claiming the school's lax security provided an unsafe environment that led to the rape. She would eventually receive a settlement of $1.5 million.

However, early last year, the woman contacted Banks and recanted her story, according to Banks' attorney, Justin Brooks of the California Innocence Project.

Banks and his attorney will ask Judge Mark C. Kim for a new evidence hearing that could overturn Banks' conviction today at the Long Beach Courthouse.

The California Innocence Project is a California Western School of Law program that tries to secure the release of wrongfully convicted inmates. Banks' case is the group's first post-release case.

Brooks said he doesn't know if the Los Angeles District Attorney's Office agrees with his petition to overturn Banks' conviction.

"We hope they will concede, but we won't know that until it happens," Brooks said. "They have been willing to review the evidence with us."

District Attorney spokeswoman Sandi Gibbons provided no hints about her agency's stance Wednesday.

"We're not going to make any out-of-court statements," she said.

A spokesman with LBUSD couldn't be reached for comment.

Banks, who was a rising football star with a scholarship offer at USC and dreams of playing with the NFL, contacted the California Innocence Project early last year after the victim contacted him.

She had contacted Banks via Facebook and said she wanted to reconcile their friendship, according to Brooks. The pair had known each other since middle school.

She sent Banks a message saying, "let bygones be bygones," Brooks said.

Banks and his former accuser agreed to meet, and Banks brought a private investigator who videotaped the woman recanting her accusations against him, Brooks said.

She "felt bad and guilty about what happened to Brian," Brooks said.

Brooks agreed to take Banks' case after not only looking at the video, but also examining other evidence, he said.

The victim had told authorities that Banks abducted her outside a school bathroom, forced her into an ascending elevator, down two flights of stairs and assaulted her in a secluded campus alcove. But when Brooks went to the high school campus, the crime scene didn't make any sense, he said.

"For Brian to take (her) from the bathroom to the elevator, he would have had to take her past several classrooms. Someone would have seen or heard a struggle," Brooks said.

"Also, every version of her story wasn't consistent. She said he ejaculated inside her, but there was no semen in the rape kit," Brooks said. "(She) said she wiped it all off with a paper towel, but that's impossible."

At the time, it was Banks' word against hers. Banks could either fight the charges and go to trial, risking 41 years to life in prison, or accept a plea deal, Brooks said.

He accepted the deal, which destroyed his college chances, sent him to prison, led to a lengthy probationary period and a life-time registration as a sex offender.

"Brian never should have been charged," Brooks said. "There was a lot of sloppy police work, and I don't know what level of scrutiny the prosecution did.

"He got bad legal advice to take the plea. The attorney should have taken it to trial. I can't imagine not taking this case to trial. (The victim) had so many inconsistent statements.

"The system failed Brian," Brooks said, "but hopefully we will have good news in court Thursday." ..Source.. by Phillip Zonkel Staff Writer