Brad Bannon: The Unknown Soldier

DIW reader Dave Dixon recently interviewed defense hero Brad Bannon. My thanks to Dave for allowing me to run the resulting article on DIW, and to Brad for agreeing to the interview.

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For some, the question of their true occupational calling is never ending. For Brad Bannon, the decision was very simple. At age 14, Bannon read the book Fatal Vision, by Joe McGinniss, and he knew he wanted to be a criminal lawyer. The book was about the case of Dr. Jeffrey MacDonald, who was charged with murdering his wife and children in North Carolina in 1970. One of MacDonald’s defense lawyers was Wade Smith (a familiar name, more on that later). Smith was not MacDonald’s lead lawyer and had only been slated to talk to the jury in closing arguments for one hour. But then that hour was whittled down to 10 minutes. Nevertheless, in just those 10 minutes, Smith had a very significant impact on the jury. Long after rendering the verdict to convict MacDonald, one of the jurors would later say, “I don’t know. We wanted to believe. We really did. Maybe if Wade Smith had just talked to us a little longer…”

That line stuck with Bannon. “It reminds me of why I stay at work late at night,” said Bannon. “I am constantly telling myself, ‘Well, if I just keep looking through this stuff, for just 30 more minutes, I might find something.’” It was that internal motivational voice that helped Bannon uncover the withheld exculpatory DNA evidence in the Duke case. “I didn’t know anything about DNA or what all of those documents meant, but I decided to learn about it all and to go through all of those pages, literally thousands of them, and I kept telling myself the whole time, ‘Thirty more minutes….’ Which, of course, always turns into hours and days and nights. And then, one of those nights in November, I found it.”

The work ethic also produced a new nickname for Bannon. The weekend before the December 15 hearing, Jim Cooney and his wife were in New York, visiting his daughter and her fiancee. Cooney's daughter, who is in the music business, had some backstage passes for the "Tenacious D" concert--Jack Black's band. The Cooneys opted out and went to dinner instead. It turns out that Brad was in New York as well and went to that concert; he is a "Tenacious D" groupie.

After the hearing on December 15, as the defense team was all congratulating Bannon, Reade Seligmann and Dave Evans announced that the attorney had a new nickname for the rest of the case: "Tenacious B." The nickname stuck.

On working as a team with other lawyers

The Duke defense team was very impressive by make-up, and so was the chemistry and unselfishness at the core. Bannon said that working with the lawyers in this case was one of the greatest experiences of his professional career. “I am not a sports guy, but I have been around enough sports to know my share of sports analogies, and the same principles are true of our team. Being part of a great team, no matter what that team is doing, means recognizing your own strengths and weaknesses unselfishly.”

So, while Joe Cheshire took the lead in the case when dealing with the media and the public (often speaking for not only his and Bannon’s client, Dave Evans, but also on behalf of Reade Seligmann and Collin Finnerty), attorneys like Bannon diligently worked behind the scenes and in the court room. “Joe was our primary public voice for several reasons,” explained Bannon. “He had the courage to speak out and put himself on the line publicly very early on, when it was necessary but also kind of scary. These kids were being poisoned in public, and Joe saw things being done at the early stages of this case that were factually wrong and prejudicial to a fair trial. At that time, it was hard to do anything to stem the tide of what was happening. But Joe’s desire to set the record straight put him out front for us.”

“I have worked in the legal arena for nearly 10 years, all of that time with Joe’s firm. I certainly do my own cases, and Joe does his, but we often work as a team. My focus has always been on the details and analysis of a case, and Joe has always been out front in the courtroom and, if necessary, the public. We took a similar approach in the N.C. State tailgate shooting case in 2005. I did a lot of the preparation work and a good share of the courtroom work, but Joe was out front--the lead lawyer. The bottom line is that there is no ego involved, and we really respect each other, which is why we work so well together.”

Brad’s Role Models

Born in Queens, New York, Brad is the son of a military father, and his family moved numerous times in his youth. Brad’s parents separated when he was young, and he grew up with his mother, Becky, and his older brother, Dean, in Myrtle Beach, South Carolina. Becky Bannon taught public school for nearly 35 years and is retiring this year. His mother’s incredible commitment and hard work instilled the values that now drive Brad. “I know it sounds cliché, but my mom is my hero. She is very well respected and loved in her school district. She always had a fierce commitment to her students’ education, and she was even more committed to raising my brother and me. It’s not easy to be a single mother raising two boys as a public school teacher. As an adult, I am more and more amazed at what an incredible person she is, and what sacrifices she made to raise us. She took a situation that was thrust on her, and she performed incredibly. She never abandoned her commitment. She taught me everything I needed to know about responsibility.”

Not surprisingly, another role model Bannon cites is Joe Cheshire. “One thing a lot of people don’t know about Joe is that he basically gives as many hours in his week to uncompensated roles as he does for paying clients. Few people who have reached that point in their careers do that who don’t have to do that. I know the best moment in my career was the beginning, when Joe hired me to work for him. I always knew I wanted to be a criminal lawyer. But to end up in the Carolinas, in this city, working with Joe, has made all the difference. A lot of people go through their life hating their job, but I feel like I hit the jackpot when I got to work for him and to work with the people at my firm, who are basically my family.”

Wade Smith is also a role model for Brad. “Before the Duke case, I had brushed elbows professionally with Wade, but I never got to work with him as I have in this case. It is odd to think that 20 years ago my first real exposure to criminal law involved him, when I read Fatal Vision. He was one of my inspirations to become a lawyer, and now I am actually working with him. And the great thing about Wade is that he absolutely considers me his equal, when the truth is that I could never be that.”

Bannon cites another member of the Duke lacrosse defense team as a role model, one whose impact was particularly helpful to the defendants in that case. “After Jim Cooney and Mary Pollard freed Alan Gell from death row, Joe was appointed his lead trial counsel. Jim stayed in the case and worked pro bono. His major task was the presentation of scientific and expert testimony that, in conjunction with other evidence, proved that Alan could not have killed the victim in that case. I got to work very closely with Jim in that case and saw how an expert lawyer works with expert testimony. Since then, I have done my best to copy Jim’s approach, which is what I did with the DNA in the Duke case. I mean, I’ll never get to the level where Jim is, but I sure will continue to try.”

Appearance

Those who run into Brad Bannon in a grocery store might confuse him for a local college student, with his youthful appearance. “I get it all the time about looking young,” said Bannon. “I can’t go anywhere and have a beer without being carded. I just recently stopped getting carded at R rated movies.” However, Bannon takes it in stride. “It’s not something that bothers me. It can be a hurdle with clients, especially those I’m appointed to represent. People already have concerns about being assigned this lawyer they don’t know, and then, on top of that, he looks 12 years old. They initially read it as inexperience, but once they spend time with me, it’s not a problem. It’s actually become part of my introduction. I’ll say, 'Hi, I’m Brad Bannon. I know I look young, but I’m really 36 years old, and I’ve been a lawyer for almost 10 years.’”

Surprisingly, in light of his role in the very high profile lacrosse case, Bannon was seldom recognized in public. Outside of an incident in South Carolina when he visited his mother at Christmas and was approached in a restaurant and asked if he was a defense lawyer in the case, Bannon went unrecognized. “Of course, that’s to be expected. I wasn’t front and center in this case until after Judge Smith restricted cameras from the courtroom, and I haven’t said much about the case outside the courtroom.”

On the Emotional Toll of His Work

As anyone can imagine, working in criminal law takes an emotional toll on all sides. Despite Bannon’s tremendous skill in his occupation, he is no exception to such feelings. “I have worked on cases where, in every direction you look, there is devastation.”

“In the Duke case, our clients are factually absolutely innocent,” Bannon explained, “but as criminal defense lawyers, we often represent guilty people who are rightfully charged. And, for example, in a murder case, it is gut-wrenching to hear the victim’s family members speak about the unimaginable loss of a loved one. It’s also gut-wrenching to sit with someone and wait for the jury to tell him whether he is going to live or die, especially when you know that decision has a lot to do with how well you’ve done your job.”

But Bannon understands and accepts that such an emotional toll comes with the job, and it constantly reaffirms for him the importance of his role. “It isn’t just a job, it is a commitment to people who have put their lives or the lives of their loved ones in your hands.”

Mock Trial Coaching

Despite his busy schedule, Brad finds time to coach the Mock Trial Team at Cardinal Gibbons High School in Raleigh. “I was on the mock trial team at Socastee High School all four years. My senior year, I was the captain, and we won the State Championship in South Carolina and the National Championship in Texas. When I started working with Joe, my friend Bryan Collins, who is now the Public Defender for Wake County, was coaching the Cardinal Gibbons team and asked me if I would like to coach. I remembered when I was a mock trial ‘lawyer,’ I looked up to the real lawyers who coached me with great admiration. To me, they were like rock stars. They had careers and families, and yet they came to our high school every afternoon or evening and made that sacrifice to help us. I felt like I needed to do something similar.”

On the role of blogs vs. the mainstream media in this case

Bannon feels that information from blogs was often more reliable than information from the mainstream media about this case. “I think that trend followed other trends in blogs about politics, current events, and the War in Iraq,” explained Bannon. “That was one of the most fascinating things about the news coverage of this case. It wasn’t the mainstream media trying to outdo each other in service to pre-existing meta-narratives. It was people who didn’t have the compensated, corporate backing of the mainstream media and said, ‘Hey, let’s focus on facts and not an agenda.’ I know other cases have been discussed on blogs before, but this might be the first case to get this much attention in the blogosphere. And, just like the mainstream media, some of it is reliable, and some of it isn’t. I personally believe there should be standards for bloggers, like putting their real names on their blogs, like Professor KC Johnson has done in this case with his site.”

“But the debate should not just be about standards for bloggers. The debate should be about standards for all media, whether mainstream or in the blogosphere. For example, many times I read in mainstream media coverage that ‘It is agreed’ that this or that happened, when there was no such agreement. Other times I read comments attributed to ‘sources close to the investigation’ who should never be given anonymity, and whose comments were wrong.

So tell my why information like that should be reliable just because it is under the banner of the New York Times or the Durham Herald-Sun or broadcast on a 24-hour news channel? If it’s unreliable, it doesn’t matter whether it’s spoken or written by a person we know in the mainstream media or published by a person we don’t know on the internet. It’s still unreliable.”

The View of North Carolina’s Legal System in the mind of America

While Bannon refuses to comment on the conduct of Durham County District Attorney Mike Nifong or his pending State Bar charges, he has put his own spin on one of Nifong’s most controversial public statements in the case: “I am not going to let the view of Durham to America be a bunch of Duke Students raping a black girl from Durham.” Bannon said he would like to shout from the mountain tops, “I am not going to let the view of North Carolina’s criminal justice system to America be this case.”

As proof of North Carolina’s legal progression, Bannon cites numerous examples. “In the past several years, North Carolina has acted progressively in all branches of government to improve the fairness of our state’s criminal justice system. In 2000, we established the Indigent Defense Services Commission to oversee the provision of legal representation to indigent defendants and to develop training, qualification, and performance standards for that representation. Joe Cheshire was instrumental in the establishment of IDS and is still the Chair. In 2002, our then Supreme Court Chief Justice established the North Carolina Actual Innocence Commission to study issues related to wrongful convictions and to recommend changes in criminal law and procedure to avoid such miscarriages of justice.

The Commission’s first major action was a comprehensive study of how to avoid one of the leading causes of wrongful convictions: mistaken or false eyewitness identifications. The study produced the North Carolina Actual Innocence Commission Recommendations for Eyewitness Identification, which were implemented by numerous law enforcement agencies in North Carolina, including the Durham Police Department by General Order 4077 dated February 1, 2006, though that order was ignored and violated during the PowerPoint ‘identification’ just two months later in the Duke case. In 2004, our state’s Conference of District Attorneys and criminal defense bar came together to recommend passage of North Carolina’s open-file discovery law, which went into effect in October of that year and required the complete files of all law enforcement and prosecutorial agencies in felony prosecutions to be provided to the defense. In 2006, we established the North Carolina Innocence Inquiry Commission, the first statewide commission in this country established to review claims of actual innocence by convicted prisoners. Wade Smith sits on the Commission. So you can see that North Carolina as a whole has acted progressively and consistently over the last several years on many fronts to improve the fairness of the criminal justice system and has, in fact, been a nationwide leader in some of those efforts. You can also see that defense lawyers in the Duke lacrosse case have been actively involved in those reforms.”

Bannon also says that the relationship between defense attorneys and prosecutors in North Carolina is much more cordial and professional than that seen in the Duke case with the original prosecutor. “Most of us recognize that we are all professionals, and we all play necessary roles and have special responsibilities that work toward one goal: the fair administration of criminal justice in our state. I assure you, it gives me no pleasure to be in an antagonistic professional stance with a prosecutor, and I’m usually not. This case is an anomaly, and North Carolina is not a backwoods, regressive society. We are progressive, particularly in the area of recognizing flaws in our criminal justice system and constantly working to improve it. The train has long been on that track of progression, and it was only derailed in people’s minds as a result of this case.”

Future Reforms in Criminal Procedure Law

But Bannon does believe that this case highlights the need for additional improvements in certain aspects of criminal procedure. “I would hope the legislature would explore Grand Jury reform. One of the things we absolutely know is that the lead police officers and prosecutor who were in charge of this case in Durham had meetings with experts about DNA. We know those experts told them that they discovered DNA from multiple people that did not match any of the accused. It would be fascinating to know if that information was presented to the Grand Jury in Durham. The only way we would know that is if there was a record of the Grand Jury testimony, and we do not have that requirement in North Carolina. Unlike federal court, in state court in North Carolina, the Grand Jury is a secret proceeding and not recorded in any way.”

Brad Bannon the person

After graduating from Law School at Campbell University, Bannon took the job with Joe Cheshire and decided to live in Raleigh. “I wanted to stay in the Carolinas, and I like the fact that Raleigh has some of everything. Here in the Triangle, you find people from all walks of life. There’s also the educational institutions, the research facilities, the hospitals. There’s a lot of knowledge and talent in this area, and I like the diversity of people and cultures in Raleigh/Durham/Chapel Hill.”

Despite being a bachelor, Bannon has very limited free time. “I work a lot. It goes along with the type of job I have. But I run, and I spend time with my friends when I can, and I try to see my mom.” He also tries to talk to his older brother, Dean, as much as possible. “I really look up to him, even though I don’t get to see him that much. He splits his time between Snowshoe Mountain in West Virginia and Myrtle Beach, South Carolina.”

Bannon is also an avid music fan. U2 is his favorite band, and his affection for them goes beyond their music. He greatly admires their humanitarian efforts in Africa related to AIDS relief, debt relief, and fair trade.

Bannon also takes great pride in being a dog father. He has two dogs, Sandy, a terrier mix, and Friday, a Shih Tzu mix. He loves to tell the story of how he “adopted” Friday. On a Friday morning in November of 2004, Bannon was driving to work and feeling the emotional toll of a sentencing hearing the preceding day in a murder case. While approaching the busiest intersection on his way to work, he saw a small, 12 pound dog walk into the intersection. Bannon made sure the dog got out of the road and then pulled over. Despite never seeing Bannon before, the dog immediately trotted up to Bannon and laid down in front of him. “And that was it,” said Bannon. A few immunizations later, Friday joined the Bannon household and quickly bonded with Sandy.

Thanks to Bannon, Friday has a lot to be grateful for. So do those people who can call Brad their attorney.