I am the proud father of Brandon Winston. I was present for Brandon’s criminal trial, and I tried, at all times, to maintain objectivity. Had not my service in the United States Marine Corps stressed justice and judgment as vital leadership traits? Was I not primed to view evidence through the dispassionate eyes of a trained legal officer, after my formal training at the Naval War College in Newport, Rhode Island? With that formal background, plus an additional 30 years of life experience since, I was prepared to hear testimony, and view evidence, of a felonious assault. Instead, the evidence offered, and the testimony given, made me wonder how this case ever made it before a jury.
The complainant was shown to have been pursuing Brandon for weeks, via texts and voice requests. Brandon showed little interest until the day in question. The testimony told of a quartet of partying twenty-something-year-olds enjoying themselves, dancing, drinking, and socializing with dozens of others, at a local club. The complainant’s friend and Brandon were the item on the menu that night, as the evidence showed. Was this taken as a slight by the complainant? Could she have felt jilted by all the attention Brandon was receiving from her friend? The evidence presented gave every indication that this was true. The physicality of her moves on the dance floor with Brandon, her constant kissing, bespoke a young woman who was taken by her new acquaintance.
Despite his chiseled six-foot-four inch physique, Brandon is an unassuming teddy bear of a person, whose generosity of heart is exceeded only by his empathy for others. Never has he met a dog, nor cat, nor child that he has not stooped down to commiserate with, on their level.
An anecdote from his childhood sums up his easy-going nature quite well. When he and his older brother were toddlers, I playfully turned on the sprinkler as they frolicked on the lawn. The older boy, shocked by the abrupt shower, burst into tears, and ran to his mother. Brandon, unperturbed by the cold geyser issuing from the sprinkler, walked over to the device, plopped down upon it, and laughed at his achievement. He portrayed a plump Buddha, comfortable in his skin, as the icy waters jetted up his shorts. Brandon still is the guileless kind of person who is not bothered by life’s surprises. Armed with the understanding that alcohol tends to drop inhibitions and reveal the true self, there was nothing that I knew about Brandon that could be consistent with an assailant, or rapist, no matter how many drinks he’d imbibed.
With a hunger for the truth, I listened to the courtroom testimony as the accuser made the strongest case for acquittal of the charges against Brandon. She had alleged that she and her guest, the second woman present, were too intoxicated to resist any advances by Brandon. Yet, she admitted that after they had exited the club, the three of them walked a substantial distance – several blocks – in the mid-winter cold night, in search of a taxi. She further testified that she and her friend ran across Massachusetts Avenue (successfully negotiating the center median), made it over the curb, up the stoop, unlocked the downstairs door, and unlocked the door of her apartment. Meanwhile, Brandon was in the street, negotiating the taxi fare. These did not strike me as the actions of incapacitated people.
My son called to explain to me the situation that he was in, only after charges had been returned against him. It must have been one of the most difficult calls he had ever had to make. He knows how I feel about personal accountability, and taking your medicine after erring. So, he could not have been surprised when my first question to him was “Did you do it?” I was the surprised one when he revealed that he had not even consummated a sexual act that night. The absurdity of the situation broke the ice, leaving us both dumbfounded. We agreed that he must be the most unfortunate charged person in the history of criminal defense.
The complainant is a well-known activist behind the banner against domestic abuse. She is a Harvard Law School – trained advocate, who was in her late twenties at the time of the allegations. This is why her behavior the morning after the alleged incident was so puzzling, and destroyed her credibility as a witness, as a complainant, and as a “victim”. She testified that after witnessing one sexual assault, and being victimized by another, she got up at 7:00 a.m., to leave the apartment while her friend and Brandon slept. Was she going to summon help? Did she call the police? Did she seek an ambulance for herself or for her friend? No!!! This Ivy-League law school graduate picked up a sandwich, took it back to her apartment, and ate it. Leaving her friend alone with an alleged predator would have been inconsistent with a person of her age, maturity and education. This would either have to be the densest women’s rights advocate to ever grace the halls of ivy, or a woman who was looking for revenge.
Additional information was presented by the accuser, none of which rose to even a preponderance of the evidence level of proof. A used condom with the DNA of the accuser on the outside, and that of another man – not Brandon Winston – on the inside. Zero physical or biological evidence presented against Brandon that would indicate any assault had taken place that night. Leading questions, presented as texts, asked by the accuser in the following days, implied that something untoward had occurred. Yet, from a person with a legal education and college pedigree, there was no evidence of preservation of evidence, of summoning medical treatment, nor of forensic investigation of the scene at the time.
The evidence presented at trial convinced eleven of the twelve jurors to spend two precious days of their lives arguing to acquit Brandon, against one hold-out, who declared that he would not leave the courthouse until Brandon was found guilty of something. Ultimately, the felony charges were dismissed, and the hold-out juror got his wish: Brandon got tagged with nonsexual battery, a misdemeanor. All of this time and expense of a criminal trial for what amounted to a traffic ticket!
When the basic foundation of American jurisprudence is ignored, we all risk getting caught up in the dragnet of governmental tyranny. Brandon is fortunate to have concerned faculty at Harvard Law School, who have staunchly been in his corner until this very day. I must mention Professors Charles Ogletree, Philip Heymann, Elizabeth Bartholet, Janet Halley, and Jennie Suk as tireless advocates against injustice in this case of improper prosecution. Also, my family owes a lifelong debt of gratitude to the law practice of Norman Zalkind and his partners, for their zealous and dauntless defense of Brandon. I would also like to thank Harvard Law School for acknowledging Brandon’s innocence and allowing him to continue his education.
It is a mystery why CNN has chosen to join in on this witch-hunt of character assassination. Perhaps too many subscribers are cutting back on cable, or getting their news through younger, hipper outlets, on their mobile devices. Whatever the case, the hype machine should never be allowed to substitute for deliberate, precise investigations. The advent of the high-tech lynching would truly render our system of jurisprudence hollowed out, with the loss of protections due to the accused, as envisioned by our Founding Fathers.
David Winston is a former United States Marine who served in Lebanon and a Captain in the New York City Fire Department, Ladder Company 166. He spent months after 9/11, starting the day after the attack, working at the World Trade Center site. He currently is on active duty with the U.S. Air Force.