Friday, January 20, 2012

“I wouldn’t take the Brian Downing case to trial”

By: G-MAN, IBCR legal analyst

In more than two decades as a prosecutor, I had many cases come across my desk that were hopelessly lost from the day the indictments were unsealed and the defendants were taken into custody. Witnesses were unreliable. Evidence was thin. Statutes were vague and case law didn’t support our theory.

The Brian Downing case in New Orleans is one of those cases in which I would find the quickest means of making a deal and avoiding trial.

Brian Downing is the Alabama fan alleged to have committed sexual battery against an inebriated LSU fan at a Bourbon Street eatery in the hours after the Alabama – LSU Championship Game. Viral video footage on the internet shows a man unzipping his pants, exposing his “package” and simulating a sex act on the alleged victim. The victim appears to be at least partially unconscious in the footage and it appears that the alleged perpetrator is engaging in some very inappropriate touching (but appearances can be deceiving; more on that later).

Downing turned himself into the New Orleans Police Department yesterday and was arrested on charges of “sexual battery.”

Here is how the State of Louisiana defines that offense and sets forth the punishment upon conviction:

§43.1. Sexual battery

A. Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, when any of the following occur:

(1) The offender acts without the consent of the victim.

(2) The act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender.

(3) The offender is seventeen years of age or older and any of the following exist:

(a) The act is without consent of the victim, and the victim is prevented from resisting the act because either of the following conditions exist:

(i) The victim has paraplegia, quadriplegia, or is otherwise physically incapable of preventing the act due to a physical disability.

(ii) The victim is incapable, through unsoundness of mind, of understanding the nature of the act, and the offender knew or should have known of the victim's incapacity.

(b) The act is without consent of the victim, and the victim is sixty-five years of age or older.

B. Lack of knowledge of the victim's age shall not be a defense. However, normal medical treatment or normal sanitary care shall not be construed as an offense under the provisions of this Section.

C.(1) Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.

(2) Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

(3) Whoever commits the crime of sexual battery by violating the provisions of Paragraph (A)(3) of this Section shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

(4) Upon completion of the term of imprisonment imposed in accordance with Paragraphs (2) and (3) of this Subsection, the offender shall be monitored by the Department of Public Safety and Corrections through the use of electronic monitoring equipment for the remainder of his natural life.

First of all, the act of surrendering to authorities is not an admission of guilt on the part of the defendant.

Secondly, while some might view the actions of the individual in the video as lewd and despicable—as lead blogger Dave does here—exposing oneself on Bourbon Street during a post-game celebration is more cultural phenomenon than crime.

But most importantly, the strongest evidence I have as a prosecutor in this case is four minutes of video footage, with the alleged “money shots” coming in the last minute or so. My victim appears to be incapacitated so I have a dilemma: should I rely on the testimony of a man who lacked sufficient cognitive ability to understand that another individual is committing sexual battery upon him, or should I instead identify and secure the testimony of witnesses who saw the alleged battery take place?

In a court of law, proving that things are what they seem is a lot more difficult than TV crime shows make it out to be. This is where the video evidence may not be as reliable as it’s being made out to be on talk radio and internet boards. In none of the approximately 60 seconds of footage does the camera angle clearly show contact between the defendant’s genitals and the alleged victim. It looks like the defendant is performing a criminal act, but if you’ve ever seen a steamy love scene on the big screen, you understand that what it looks like and what the actors are really doing are two separate things. In other words, I have about as much evidence that Brian Downing committed sexual battery as I do that Robert Redford boinked Barbra Streisand in The Way We Were.

One thing I can’t do if I want to get a conviction: Let the alleged victim identify his assailant and testify that he was violated as described in Paragraph A of the statute. To do so would be to open the victim’s testimony to cross-examination by defense counsel, who would quickly destroy the statutory foundation of my case by asking the victim: “If your testimony is that you recognize the defendant and that his package was on your face, why didn’t you do something to stop it? If it is your testimony that you were conscious enough to identify your assailant and understand his behavior, then how can you claim incapacitation?”


The stakes are high in this case because the penalty for this crime is severe. If convicted at trial, Downing faces 10 years and lifetime electronic monitoring. If I am the prosecutor and I take my calling seriously, I want to make absolutely sure—beyond any reasonable doubt—that the crime rises to the standard of sexual battery and that I have a rock solid case. That isn’t what I have here, so I am very interested in securing a plea bargain and washing my hands of it.

I have seen analyses purporting to elevate this case to one in which the penalty would be the 25-year term described in B.(3) of the statute. This is nonsense and shows a poor ability to interpret the statute. There are only two instances in which the greater sentence would be considered: (1) if the victim was under the age of 13 and/or (2) if the victim suffered from a permanent physical or mental disability that prevented their resistance or understanding of the act. Being drunk isn’t covered in either situation. The only instance that I might seek the 25-year term is if the perpetrator caused the victim to become unconscious by providing alcohol or some other incapacitating substance.

Last of all, and perhaps the most convincing reason why I don’t think this case ever goes to trial: Orleans Parish is a raging grease fire of a court system. My prosecutors have years’ long backlogs of trials and my community has been averaging about a murder-a-day in the first three weeks of 2012. I have much bigger alligators to deal with than one drunken LSU fan’s complaint that a drunken Alabama fan touched him wrong.


Anonymous said...

I'm sure anyone would agree that this was very in-depth analysis, though sort of opinionated at times. The offense being down-graded from an "Actual" crime, to a drunken prank carried too far, is, (to me) what makes our justice system "clanky" and flawed. The law as stated seems to be clear and precise, and even the "simulation" of commiting this crime warrants thourough investigation and respect. We should ask ourselves one question..."What if this was a female victim?". Personally, I think this case might be given the prompt and very serious attention it deserves.

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