Editor’s note: This article has been corrected to remove an erroneous reference to the current counsel for Russell Taylor.
The Southern Indiana District Court tossed the guilty plea and 27-year sentence of Russell Taylor, friend and employee of former Subway pitchman Jared Fogle, finding Taylor’s attorney advised him to plead guilty to charges he did not commit.
Judge Tanya Walton Pratt issued an order Feb. 28, granting Taylor’s motion to vacate his guilty plea and prison sentence because of ineffective assistance from his then-attorney, Bradley Banks. The federal court found Banks had either not viewed the video used to support Counts 9 through 11 or did not recognize the legal significance that the recording did not depict “sexually explicit conduct.”
Walton Pratt wrote that Banks limited his research into the charges and potential defenses by “reading the operative statute and some articles he found on the internet.” He then “quickly diverted his effort to researching likely sentences without attention to the question of whether Taylor had actually committed the offense with which he was charged.”
Taylor pled guilty to 12 counts of sexual exploitation of children in violation 18 U.S.C. § 2252(a), and one count of distribution and receipt of child pornography and conspiracy to distribute and receive child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1).
At issue in this appeal are Counts 9 through 11, which are described as showing Taylor’s sons and stepson.
The presentencing investigation report identifies Taylor’s children as “changing clothes in their bedrooms.” However, the videos the court viewed actually showed the boys stepping into and out of shower and using the toilet.
Walton Pratt concluded, “The Court has determined as a matter of law that these videos do not depict sexually explicit conduct and that they do not support Counts 9 through 11. The Court has further determined that, if Banks failed to recognize and advise Taylor that the videos did not support Counts 9 through 11, Taylor could not have entered his plea with the benefit of effective assistance from counsel.”
Banks is a founding attorney of Banks & Bower LLC in Indianapolis and, according to the Indiana Roll of Attorneys, has no disciplinary history. For a time, he represented Brandon Kaiser, the Indianapolis man charged with shooting two southern Indiana judges in an early morning fight in May 2019.
In a footnote, Walton Pratt said the court’s ruling will not determine Banks’ reputation for effectiveness.
“The sole issue here is whether Banks – five years ago, in his very first federal criminal case – effectively defended Taylor against those charges. The record shows he did not,” the judge wrote. “The Court’s ruling entitles Taylor to certain relief with respect to his plea and sentence. It condemns Banks to nothing.”
After Taylor was arrested for videotaping minors in his homes engaging in “sexually explicit conduct,” he retained Banks. The court found Banks, in his preparation, did not read case law to understand the definitions of “sexually explicit conduct” or “lascivious exhibition” under 28 U.S.C. § 2256(2)(A).
“As the Court has noted throughout this litigation,” Walton Pratt wrote, “case law is critical to defining those terms and, therefore, to determining the strength of an exploitation charge under § 2251(a). Nevertheless, Banks felt ‘comfortable’ with his knowledge of the exploitation statute, its elements, and their meanings after discussing the case with (Indiana federal community defender Gwendolyn) Beitz and reading the statue and articles he found online.”
Banks focused on getting Taylor a shorter sentence. In particular, he believed the strategy most likely to bring a better result was for his client to cooperate with federal prosecutors and provide information about Fogle to negotiate a plea agreement.
Less than five hours after he filed his appearance as Taylor’s attorney, Banks contacted assistant U.S. attorney Steve DeBrota to discuss a plea agreement.
According to the court’s order, Taylor told Banks he was upset about having to plead guilty to three counts involving his children. But Banks advised his client that he would “probably be much worse off in terms of sentencing” if he challenged those charges than if he just pled guilty to all 13 charges.
“At minimum, Banks determined incorrectly that a jury reasonably could find Taylor guilty of Counts 9 through 11 just because the other charges against him were strong,” Walton Pratt wrote. “He never considered moving to dismiss Counts 9 through 11 or moving for a directed verdict on those charges. Apparently, he also did not consider that, if Counts 9 through 11 went to a jury, the jury would be instructed to consider each charge, and the evidence supporting it, individually.”
Taylor ended up pleading guilty in December 2015. He told the court the that factual basis for the plea agreement was true and that there was nothing he needed to change or correct.
During the sentencing phase, Banks made several objections to the presentencing report but did not object to the report’s inaccurate description of the video underlying Counts 9 through 11.
“Effective representation must extend beyond merely viewing evidence. A criminal defendant can look at evidence,” Walton Pratt wrote. “He counts on his attorney to evaluate evidence under the applicable law, understand how it supports or detracts from the government’s case, and use it to advocate for him. At minimum, Banks failed in this case to understand that the videos did not support Counts 9 through 11.”
In ruling that “competent work by counsel would have produced a different outcome” for Taylor, the court found prejudice under the standard set by Strickland v. Washington, 466 U.S. 688 (1984).
Walton Pratt directed the clerk to reopen Taylor’s case and instructed his current counsel to file notice indicating whether they will remain as trial counsel or if the court should appoint new counsel.