Getting it right

Freeing the wrongly convicted with the Illinois Innocence Project

CRIME | Patrick Yeagle

Brian Banks had the world at his feet.

A promising high school football star with serious NFL prospects, Banks got his first college recruiting letter as a sophomore. Before he even started his senior year of high school, he was recruited to play football at a prestigious university, where he wanted to study journalism.

But Banks’ favorable trajectory was violently thrown off course in the summer of 2002 when he was accused of rape. He would spend five years behind bars and another five years wearing an electronic monitoring anklet before new evidence would clear his name.

Banks is one of more than 1,340 people across the nation who were freed from prison between 1989 and 2014 after being imprisoned for crimes they didn’t commit. Now Banks is a crusader for the group that helped free him, and he is coming to Springfield next month to spread his message of hope for the wrongly convicted.

Brian Banks grew up in Long Beach, Calif., just south of Los Angeles. He stood out on the football field at Long Beach Polytechnic High School, where he played linebacker because of his size and agility. Banks’ athletic prowess got him scouted to play football for the powerhouse University of Southern California.

In the summer of 2002, a couple of weeks before his 17th birthday, a young woman at his school claimed Banks dragged her into a stairwell and raped her. Although the only evidence against Banks was his accuser’s words, prosecutors offered Banks a deal: plead guilty in exchange for a sevenyear prison sentence and a lifetime of registering as a sex offender. The alternative was fighting the charge and risking a 41-year prison sentence.

“My attorney told me ‘When you walk into that courtroom, you will be automatically assumed guilty because you are a big, black teenager, and you will more than likely have an all-white jury,’ ” Banks said.

He had 10 minutes to make his decision and wasn’t allowed to talk to his mother about it. He chose to take the plea deal and served five years and two months in prison. Meanwhile, Banks’ accuser sued the Long Beach school district, saying the school wasn’t safe. Her family won a $1.5 million settlement.

Banks was released Aug. 29, 2007, and had to wear an electronic monitoring anklet as a term of his parole. He couldn’t find a job because of his criminal record, and California’s laws regarding sex offenders meant he couldn’t live within 2,000 feet of a school or park, so he lived at home with his mother. But Banks’ nightmare was almost over.

After Banks was released, he received a Facebook friend request from his accuser. She also sent Banks a message saying she was more mature now and wanted to “let bygones be bygones.” Banks immediately saw an opportunity to clear his name.

He convinced his accuser to meet him at the office of a private investigator, who had wired his office with hidden cameras and microphones. Banks’ accuser was recorded admitting that Banks didn’t rape her, but she was reluctant to do anything that might mean her family would have to pay back the $1.5 million settlement from the school district.

Banks took the recording to the California Innocence Project, which helped him gain a new hearing in front of a judge. The evidence was enough to clear Banks of the made-up crime, and he walked out of the Long Beach courthouse smiling on May 24, 2012.

“I was thinking ‘Finally, the truth is out and I’m free,’” Banks recalls. “Here I am now with a window of opportunity to do something with my life that I wasn’t able to do before. There were a bunch of emotions, but it was definitely bittersweet because of the 10 years I lost.”

After Banks’ conviction was overturned, the Long Beach school district sued the accuser and her family to reclaim the earlier settlement. A Facebook page dedicated to advocating for the prosecution of the accuser has nearly 1,300 followers, but authorities have been reluctant to pursue the case.

Banks finally got to play in the NFL after being drafted by the Atlanta Falcons in April 2013, and he made his debut in August of that year, making two tackles. However, the team cut him later that month while downsizing from 75 players to 53. Banks is currently an unsigned free agent, but he is focusing on more meaningful pursuits now. He’s attending college to become a life coach, and he’s currently shooting a documentary. He also recently signed a deal to make a movie about his life.

“We may not be in control of the things that are happening in our lives, but we are in control of how we carry ourselves through a situation, and how we allow those situations to affect us,” Banks said. “While you’re dealing with things that are out of your control, just work on what you do have control over: bettering yourself as a person.”

Justin Brooks, the director and co-founder of the California Innocence Project, helped Banks clear his name. Besides his work with the California Innocence Project, Brooks created RedInocente, an organization dedicated to establishing innocence projects across Latin America. Brooks will visit Springfield with Banks to speak at the Illinois Innocence Project’s annual Defenders of the Innocent banquet on May 3.

Fighting to get it right

The Illinois Innocence Project is one of about 60 groups around the U.S. dedicated to reversing wrongful convictions. Started in 2001 at the University of Illinois Springfield as the Downstate Innocence Project, the Illinois Innocence Project has expanded to cover the entire state with the help of Illinois’ three largest public universities: the University of Illinois at Urbana-Champaign, Northern Illinois University in DeKalb and Southern Illinois University in Carbondale. So far, IIP has secured the release of six people, with several other cases in progress.

Larry Golden, founding director of IIP, says the organization is constantly inundated with requests to take cases, so a set of rules helps determine which cases get taken. IIP accepts only cases in which the accused is likely to be actually innocent and has four years or more left on his or her prison sentence. The crime in question must be a felony, and there must be a significant chance of finding new evidence to overturn the conviction.

The Illinois Innocence Project is unique among its fellow projects because it uses undergraduate students to review the requests to find which cases have potential. That helps the project’s staff attorneys focus on current cases, and it gives the students handson experience with legal work. Many of the students plan to attend law school after graduation from UIS. The students pore over evidence, interviews and court documents, then write up a synopsis of each case, which gets reviewed by a committee of lawyers, staff members and other students.

Once a case is accepted, it goes to students at one of the other universities’ law schools, who work with the IIP staff attorneys at UIS to look for new evidence and navigate the legal process. IIP only has three full-time attorneys and one part-time attorney who split their time among about 10 students at each university.

Golden says innocence projects are primarily concerned with “getting it right” – putting the right people behind bars and keeping the wrong people out of prison. He cites research showing that one out of every 10 people on death row is innocent. While Illinois no longer has a death penalty, the statistics on wrongful convictions paint a frightening picture of a flawed justice system.

“If one out of every 10 planes crashed or one out of every 10 surgeries went wrong, wouldn’t we as a society want to do something about it?” Golden said. “It’s time for us to think about what we should do to make our system better. Ultimately, we want the same thing as prosecutors and judges: we want to see the system work the way it’s intended to work.”

Recent victories

In the 12 months between spring 2012 and spring 2013, IIP helped get three wrongfully convicted people out of prison. The 2012 exoneration of Jonathan Grayson of Aurora was especially noteworthy because it involved the cooperation of police and prosecutors.

Previously known as Jonathan Moore, Grayson was convicted of murder and two counts of attempted murder in 2002, which resulted in a 60-year prison sentence. Grayson’s case originated in August 2000 thanks to a pair of shootings in Aurora. One of the victims survived and chose Grayson, then age 20, out of a police lineup. Although the victim’s testimony in court conflicted with that of another eyewitness, Grayson was found guilty.

In January 2011, while Grayson was still serving his sentence, another shooting led police to new suspects who possessed the gun used in one of the previous shootings. A new eyewitness also came forward, and the Aurora police and the Kane County state’s attorney reopened their investigation. The investigation turned up new evidence and testimony that discredited the original eyewitnesses, and Grayson’s conviction was vacated.

Also in 2012, the Illinois Innocence Project saw the release of Anthony Murray of Chicago, though that release was bittersweet. Murray was accused and convicted of a June 1998 murder in Centralia and given a 45-year prison sentence, despite inconsistent testimony from the key witness. The evidence in Murray’s case has been contaminated by years of sitting unsorted and commingled in shopping bags, so the chances of finding a new means of proving his innocence were slim. After fighting to get a new trial for 14 years, Murray, in consultation with the Illinois Innocence Project, decided to take what’s known as an “Alford Plea,” in which the defendant must admit to one criminal charge in order to avoid a more serious charge. By pleading guilty to a second-degree murder charge, Murray got credit for the 14 years he spent in prison and was released on Oct. 31, 2012. He maintains he is innocent.

The Illinois Innocence Project secured the release of a third person in 2013, this time through a clemency petition approved by Gov. Pat Quinn. Peggy Jo Jackson, who now goes by her maiden name, Harshbarger, spent 26 years in prison for the murder of her former husband, William Jackson. The pair lived in Mt. Vernon, and William was allegedly abusive to Peggy Jo and their children. After William’s murder, Peggy Jo’s brother, Richard Harshbarger, told police he shot William during a scuffle.

Along with Richard, Peggy Jo was tried and convicted of William’s murder because prosecutors said she asked Richard to kill her husband. The prosecutor’s theory hinged on Peggy Jo not being upset enough about her husband’s death, but medical records show Peggy Jo had been placed on strong drugs to calm her trauma and treat her intense depression. The drugs are credited with dulling Peggy Jo’s reaction to the murder. Peggy Jo was also believed to have lied to police about not knowing William was dead because Richard threatened to kill her if she spoke about it. Richard died in prison in 2006.

The Illinois Innocence Project helped Peggy Jo assemble a clemency petition, gathering letters of recommendation from family, therapists, prison officials and even her original public defender, who said the case continues to haunt him because he was not experienced enough to handle the case by himself. Gov. Pat Quinn approved Peggy Jo’s petition in March 2013, freeing her from prison after 26 years.

A possible future exoneration

IIP staff attorney Lauren Kaeseberg is working on a case that she hopes will see a major advancement in the coming months. Details that would identify the case have been withheld to avoid endangering an agreement between IIP and the state’s attorney prosecuting the case.

In the summer of 1993, an Illinois woman was found dead in her home, stabbed 30 times in the bathroom. The police found the murder weapon, along with several bathroom items which had blood on them. At the time, DNA testing was still rudimentary, so blood samples and other samples taken from under the victim’s fingernails were never tested.

The police initially had no leads in the case, so they looked at the victim’s phone records and found calls from a relative’s workplace to the victim’s home around the time of the murder. The relative, a man who was related by marriage to the victim, was a Mexican immigrant who, along with his wife and children, spoke very little English at the time. He quickly became the only suspect in the case.

Kaeseberg says the detective who investigated the case was the only Spanishspeaking officer in the area at the time. The detective interrogated the victim’s relative, telling him that the police had evidence linking him to the murder weapon and that his family would be arrested if he didn’t confess. Kaeseberg says the detective also beat the relative during the interrogation. In order to protect his family, the relative agreed to sign a confession – written in English – on the assumption that he could later take it back when he was no longer in the detective’s presence.

The detective served as an interpreter between the relative and the state’s attorney who was prosecuting the case at the time. That means the suspect’s words were filtered through the detective before they reached the state’s attorney. Kaeseberg says the detective in the case is suspected of producing false confessions and evidence in other cases.

The relative was convicted and sentenced to life in prison, but Kaeseberg and IIP believe he was innocent. The current state’s attorney has agreed to allow DNA testing of the samples taken from the crime scene, which could rule out the relative as a suspect.

Kaeseberg says suspects in criminal cases are rarely seen sympathetically by the public, so revealing problems – like the lack of an impartial interpreter and untested DNA evidence – helps bring reforms.

“I’m really passionate about this work,” Kaeseberg said. “Part of the reason I find it so important is not only are we working on individual cases of clients, working to clear their names, but if you look at the current state of the criminal justice system, really the only thing that’s causing systemic change is exonerations.

We apply what we learn from these cases to the system, and it helps enable reform and legislative change where it’s incredibly necessary. No one can deny the horrors of an innocent person being convicted of a crime they didn’t commit, so the visceral reaction to that problem actually forces change to happen.”

Addressing systemic problems

In order to prevent future wrongful convictions, the Illinois Innocence Project also works with state lawmakers on legislation to correct problems in the criminal justice system. IIP previously pushed successfully for videotaping of interrogations, and the group currently supports a bill that would allow criminal defendants who plead guilty to obtain DNA testing of evidence in their case.

John Hanlon, executive director and legal director for IIP, says most people who plead guilty to crimes do so because they are guilty, but in cases like the one Kaeseberg is handling, the suspect pleaded guilty out of fear. Hanlon says the legislation would give people like Kaeseberg’s client a chance to prove their innocence even if they already gave a false confession.

The Illinois Innocence Project opposes a separate bill that would codify a controversial condition known as “shaken baby syndrome” into state law. Shaken baby syndrome is often cited by doctors and prosecutors to explain infant deaths when the child has a “triad” of symptoms: brain bleeding, brain swelling and retinal bleeding. In those cases, the last person to care for the child is typically charged with murder on the theory that they shook or even hit the baby. However, many of the cases labeled as shaken baby syndrome involve other medical conditions that predated the triad of symptoms, and new research shows that old assumptions about shaking infants may be misguided.

IIP is working on at least one case involving shaken baby syndrome. Pamela Jacobazzi is currently in prison at Logan Correctional Center in Lincoln for the 1994 death of 10-month-old Matthew Czapski of Bartlett, Ill. The Illinois Innocence Project believes Jacobazzi is innocent because Matthew Czapski had pre-existing medical problems that may explain his death.

An uphill battle

Larry Golden, IIP’s founding director, says obtaining an exoneration is an arduous task, from unearthing new evidence to simply getting a judge to grant a rehearing.

“Every step, from allocating resources for help to viewing their claim of innocence in a favorable light, is actually resisted,” Golden says. “The system is just set up that way, so it’s a struggle. What that means is that the simplest of motions is likely to be denied. The work that goes into a given case is going to span years.”

That means the Illinois Innocence Project must rely heavily on grants and long-term community support; the organization receives no money from UIS. Golden sees a contributions to IIP as an investment that saves money by reversing wrongful convictions. IIP estimates that taxpayers paid more than $1.5 million to keep Jonathan Grayson, Peggy Jo Harshbarger and Anthony Murray behind bars until they were freed. Statewide, the Chicagobased Better Government Association says it cost taxpayers more than $214 million to keep 85 wrongfully convicted people behind bars for a collective 900 years of prison time.

“We become very intertwined with these people,” Golden said. “The work we do ultimately involves personal investment that creates a bond between the students, the staff and our clients. It’s a very unusual situation. They are not just clients; they become almost part of our family. There is nothing more gratifying than walking a person out of prison who you know is innocent and giving them a piece of their life chances back. It’s a feeling that cannot be described in words.”

Contact Patrick Yeagle at [email protected].

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Brian Banks spent five years in prison for a rape that never occurred, but he was freed with help from the California Innocence Project. Banks is shown here carrying petitions calling for the release of another prisoner in California whom some believe to be innocent. PHOTO BY BRIAN VAN DER BRUG/MCT