By Michael G. Brock
The dinner stretched out over four or five hours, and my back began to bother me at some point from sitting that long, although not as much at the time as it would in the following days. Anyway, it wasn't just the meal; I'm getting too old for schlepping a gym bag through airport security, and have to break down and buy a backpack, or something that moves on rollers. It just seems so wimpy.
The days when he argued politically charged cases are behind him and we have a decidedly different relationship than the one we had when we would sometimes face each other in court. You might think a dinner that went on that long would have involved some drinking, but, to my recollection, the only person to have a drink was his date; neither my S.O. nor I drink at all, and I've never seen him have more than one. No, it was just interesting conversation between a former prosecutor turned defense counsel, an expert witness, a U.S. Treasury Department lawyer, and someone with no connection to the legal system.
"Prosecution is a numbers game," the voice said, "Prosecutors don't generally take on cases they don't expect to win, and once they take it on they don't give too much consideration to the possibility they could be wrong. Their egos and their reputations are invested at that point and it would be decidedly inconvenient for them if the defendant turned out to be innocent. They often have political aspirations and their conviction record will help get them elected. Consequently, they might prosecute some cases that seem trivial, or for which there is poor evidence, but are cases of a nature that a judge or a jury would be inclined to convict, while they choose not to prosecute a more serious crime in which they believe the defendant to be guilty, but for which they aren't sure they can make a strong case.
"A good example is felony child support case. If such a case is referred to a prosecutor, they will always choose to prosecute, and will win 100% of the time. All they have to prove is that the order was issued and it wasn't paid. Those are the only relevant facts and nothing else matters. Moreover, what kind of scumbag doesn't support his kids? The fact that he might not be able to find a job is irrelevant. CSC cases are sexy (no pun intended). Who would you rather put away, someone who committed bank fraud (boring), or a sexual predator? This is a get tough on crime culture; no one gives you points for discovering exculpatory evidence halfway through a trial and moving to dismiss the charges, even though that is the ethical thing to do, and, of course, what some prosecutors will do-but not all."
My mind went back to a couple of cases I had researched years ago. One involved a prosecutor who didn't want to allow a priest to testify about a murder that had been confessed to him by a now deceased gang-member, for which an innocent man was serving a life sentence. [i] The other was the now infamous New York Central Park Jogger case, where even after Matias Reyes confessed to the vicious attack as the lone assailant, and his DNA and only his DNA matched that found on the jogger, police and prosecutors still insisted that the innocent teens they had railroaded into confessing in contradiction to all the physical evidence were also complicit in the attacks. They had even attempted to intimidate filmmaker Ken Burns and interfere with free speech by subpoenaing him and trying to suppress the documentary he was making about the incident. [ii]
The police had briefly spoken with and released the perpetrator that very night, facilitating his committing additional rapes and at least one homicide because they had someone they could blame the crime on. And therein lies the dual-edged sword of false prosecution-convicting the innocent and ruining their lives, and letting the guilty go free to victimize others. Much is made of the lack of moral foundation of defense attorneys, who inevitably must represent at least some guilty clients, getting them off on a technicality, while nothing is said of the same tactics when used to convict the innocent. However, the nature of prosecution is inherently different, as their sole purpose for existence is to protect the innocent, and the prosecution of those they believe to be guilty is merely a means to that end.
Therefore, law enforcement and prosecution must be held to a higher standard. The fact that their purpose is noble does not exempt them from moral behavior in seeking that end. In fact, no one ever commits an atrocity in the name of evil, it is always in the name of the most noble and sacred causes. No lessor light than Winston Churchill found reason to praise Adolf Hitler's positive effect of restoring Germany's pride after its defeat in WWI, "I have always said that if Great Britain were defeated in war I hoped we should find a Hitler to lead us back to our rightful position among the nations." [iii]
The Voice went on to address my concerns about the clearly unconstitutional "Dear Colleague" letter of 2011 and offer his insights. "The idea probably did not originate within Obama's administration, but he knew he would be up for reelection in 2012, and would need the feminist vote to get him there. And he taught constitutional law, so he must have been aware of the problems related to this kind of executive overreach, but he probably calculated that it would take some time to work its way through the courts, and that several things were likely to happen: first, he would be out of office before it all began to unravel; second, legislation would be initiated to statutize the ruling and make it more difficult to undo the Department of Education Office of Civil Rights overreach, and; three, there was a high probability that Hillary Clinton would be the next president, and appoint liberal justices to the High Court, making it less likely that the statutory version of the ruling would be overturned.
"Moreover, there is something of a conspiracy between the Left and the Right in politics that is allowing these encroachments on constitutional protections. The Left is in the process of criminalizing as much male behavior as they can in an effort to solidify feminist rule, and the right just wants to criminalize everything so they can run on a law and order platform and continue to get reelected. Police and male prosecutors may or may not subscribe to the fashionable ideology that males are inherently less moral, but they certainly understand that feminism is the tail wagging the dog, and that they earn points by arresting and prosecuting males, and "protecting" females, regardless of the facts of any given case. Hell, even judges know that if they get a reputation as being pro-male a campaign will be waged to remove them from office and replace them with someone who is politically correct. [A local female judge] had that boomerang on her a couple of years ago when she leaned on a guy who wasn't the father to pay 30K back child support for a child that she knew wasn't his, and expressed outrage at the media for reporting the injustice, [iv] but such cases are rare. Generally, the media will spin the story in favor of the woman."
From my time as an expert in family court doing child custody and forensic interviews, as well as handling hundreds of domestic violence cases at the district court level, I was aware that feminists had systematically pursued legal action as a means of gaining both power in domestic relationships and in divorce actions. Once a man has been charged with domestic violence he will be offered a plea to make it go away, vs. experiencing a protracted and expensive court case, and the evidence required is negligible-any mark resulting from the encounter.
Even if there are no marks or both have marks, the police officers will say, "Well, one of you has to come to the station." Men will typically become chivalrous at this point and allow themselves to be arrested. What they don't understand is that by doing so, and especially by taking a plea, is that they are putting themselves at a disadvantage in all future litigation; which, if it occurs during a divorce action, often results in them being removed from their homes and being allowed limited or no contact with their children. Even that bastion of Liberalism The Huffington Post, acknowledged as much:
"While meant to act as a safety mechanism in cases where domestic violence is present, the ease of obtaining an order of protection and the instant benefits it provides the alleging party has created a system ripe for abuse. In fact, up to 70 percent of cases involving allegations of abuse during custody disputes are deemed unnecessary or false. Clearly, protection orders that are meant to offer protection for those in serious situations are now being used as a weapon to turn the tide in divorce; a weapon that overwhelming targets men." [v]
Most importantly, there are rarely any consequences for false allegations of abuse, and when there are consequences, they are never equivalent to the damage they cause. Take the case of Brian Banks, who was falsely accused of rape by a classmate while he was a star football player at Long Beach Polytechnic High School. [vi] Ultimately, he was talked into taking a plea by his attorney, doing five years in prison and another five on a tether. In the meantime, the woman who falsely accused him got 1.5 million from a lawsuit she filed against the school district. The fact that she lied was uncovered in a sting set up by an investigator hired by Mr. Banks. The woman had the audacity to contact Mr. Banks after he was released from prison and request that he "friend" her on Facebook. She wanted to "let bygones be bygones!" [vii]
He was exonerated and his record was erased, but he had done the time and though he has been able to make an appearance in a professional football game, it will never be known if he could have been a contender. Wanetta Gibson, his accuser, committed at least two felonies, one by filing a false police report of a felony, and a second by defrauding the school system and insurance company of 1.5 million dollars, but her punishment was only to pay 2.6 million dollars in damages and reparations [viii]. No one really thinks that she will pay it back, and even though the debt may prevent her from every having credit or owning a house, it won't substantially interfere with her lifestyle. But what about charging her, you might ask?
"What I find interesting is that the DA's office sought a conviction of Banks without any physical evidence except Wanetta Gibson's word. You would think obtaining a rape conviction would be a tough case to prove, but the DA's office pursued charges against Brian Banks, whose defense attorney talked him into a plea deal out of fear that a jury would assume Banks was guilty because he was a big black teenager.
"With regards to Wanetta Gibson's false statement in which she was paid $1.5 million?" writes Barney Greenwald, on the Community of the Falsely Accused website, "Los Angeles prosecutors have said it is unlikely Gibson will be charged with making false accusations, saying it would be a tough case to prove. Let that sink in. The DA had no problem charging Brian Banks where there was no physical evidence in a he said/she said case where some of the things she was saying did not make sense. For instance, no DNA was found in her rape kit because she said Banks 'wiped the semen off with a towel.' Any DNA expert would say that makes no sense. Sounds like a pretty difficult case, right? But, when it comes to prosecuting a woman who admitted on tape that no rape or kidnapping occurred, the DA believes that is a 'tough case to prove.' Therefore, they cannot bring charges against her." [ix]
By comparison, a man whose only crime is not being able to pay child support (and, of course, there are those who can, but don't), will do prison time. This unequal application of the law, when the damage to the victim of the false allegation is very clear, does nothing to detour others from making such claims when they know the worst that can happen will not limit their freedom, and when the upside is obvious. Besides the money, she can expect sympathy and attention. You don't have to be B.F. Skinner [x] to know that creating a category of crime for which there is a huge upside and a very low probability of any repercussion is going to encourage people to commit that crime.
Reinforcing criminal behavior by stating that half the population (males) can be expected to behave in an immoral way, and that the other half (females) can be expected to behave morally ("believe the victim"), and that this propaganda should be substituted for the centuries long development of due process, is also a sure fire prescription to insure that injustice will prevail.
But perhaps the most disturbing part of this story is that the prosecutors knew that Gibson was lying, at least about important details of the case. She had told investigators that Mr. Banks had ejaculated inside her, but the rape kit showed no evidence of semen. There was in fact no physical evidence of criminal sexual conduct, despite allegations of both vaginal and anal rape, but that made no difference to either the prosecutor or defense counsel. Prosecutors knew that jury sympathy would be on their side; the alleged victim was female and the alleged perpetrator was a large black male. The average American gets their news from TV, and the only time a black male can be the victim under the politically correct views espoused by "Law and Order" and the evening news is when the perpetrator is a white male. In a contest between a black male and a female of any color, she will presumed to be telling the truth and he will presumed to be the aggressor.
Prosecutors know this, and they should-since it is their obligation to protect the innocent-not charge when there is no evidence and the jury is likely to be biased against the defendant. Instead, they smell opportunity, an easy win, especially when the defense attorney is court appointed and makes as much or more on a case by pleading the defendant's life away as by actually studying the case and mounting a defense. If they think he's innocent the prosecutor might offer him a "good" plea deal, like they did Banks. But they will still have the conviction. In the win at all costs world of American law and politics, that is all that matters.
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[i]http://www.nytimes.com/2001/07/25/nyregion/testimony-of-priest-and-lawyer-frees-man-jailed-for-87-murder.html
[ii]http://observer.com/2012/10/after-botching-central-park-five-case-city-goes-after-filmmakers-who-told-the-tale/
[iii]Churchill by Himself, the "People" chapter, Hitler, page 346.
[iv]http://www.wxyz.com/news/voice-says-man-must-pay-30k-in-child-support-for-kid-who-is-not-his
[v]The Blog, 11/18/2015, http://www.huffingtonpost.com/joseph-e-cordell/false-allegations-of-abus_b_8578086.html
[vi]https://www.youtube.com/watch?v=oMpy8V236Yo
[vii]http://www.cotwa.info/2012/06/bygones-be-bygones-unspeakable.html
[viii]http://www.nbclosangeles.com/news/local/Woman-Falsely-Accused-Brian-Banks-Rape-Ordered-to-Pay-26M-211689741.html
[ix]http://www.cotwa.info/2016/01/brian-banks-lawsuit-seeks-21900000.html
[x]The Founder of the Behavioral School of Psychology
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@comcast.net; website, michaelgbrock.com.
Published: Wed, Feb 15, 2017
