The defendant is youthful
The judge who had so much sympathy for Brock Turner is facing a recall campaign.
The light sentencing, along with comments from Turner’s father, who said his son is paying a “steep price” for “20 minutes of action”, have sparked global consternation.
In a brief phone interview with the Guardian on Monday, the victim, whose emotional testimony has since gone viral, said the positive responses to her statement have been moving. “I’m worried that my heart is going to grow too big for my chest,” she said. “I’ve just been overwhelmed and speechless.”
The Guardian can also reveal that the judge who gave the former Stanford athlete the light sentence will now face a recall campaign led by a law professor at the elite university who argues the jurist took extraordinary measures to allow the student to avoid prison.
That is, by Michele Dauber, whose tweets I shared this morning.
Further scrutiny on the judge’s remarks at sentencing appear to suggest he concluded the defendant had “less moral culpability” because he was drunk, and that a light sentence would be an “antidote” to the anxiety he had suffered from intense media attention on the case.
Michele Landis Dauber, a Stanford law professor who has been outspoken about sexual assault policies on campus, said she is launching the recall campaign against Aaron Persky, Santa Clara County superior court judge.
Persky, a Stanford alumnus, was captain of the lacrosse team when he was an undergraduate.
Ah. Was he. So it’s bros sticking up for bros because hey, skill at sports is that important. Sport builds character – the kind of character that prevents athletes from ever bullying or harming other people oh wait.
“He has made women at Stanford and across California less safe,” said Dauber, who attended the sentencing hearing and is also a family friend of the 23-year-old victim. “The judge bent over backwards in order to make an exception … and the message to women and students is ‘you’re on your own,’ and the message to potential perpetrators is, ‘I’ve got your back.’”
The message to women is “you don’t count, only men count, and athletic white men count triple. Slut.”
Turner could have faced a maximum of 14 years in state prison, and in order to allow the defendant to avoid prison time altogether, the judge had to determine that this was an “unusual case where the interests of justice would best be served” by a lenient sentence.
Which is weird, because what’s unusual about it in a way that makes it a good idea to give him a lenient sentence? Is there some stipulation in the law that if the victim drank too much before the rape then it becomes only sort of kind of rape, friendly rape, nice rape, humanistic rape?
After the victim delivered a detailed account about how the assault and ensuing trial traumatized her and her family, the judge issued the light county jail punishment and justified making an exception with a speech that onlookers said was unusually sympathetic to the defendant.
“Obviously, the prison sentence would have a severe impact on him,” Persky said in court. “The defendant is youthful and has no significant record of prior criminal offenses.”
That was his response to her statement. It’s mind-blowing.
Persky also noted that news coverage of the case had significantly impacted Turner, saying: “The media attention that has been given to this case has in a way sort of poisoned the lives of the people that have been affected. … The question I’ve asked myself is … ‘Is state prison for this defendant an antidote to that poison?’”
What about her? What about her? What about her?
The judge seemed to show some sympathy to Turner’s perspective. “I take him at his word that subjectively that’s his version of his events. … I’m not convinced that his lack of complete acquiescence to the verdict should count against him,” he said.
Dauber said she was further shocked to see Persky minimize the significance of the guilty verdicts, which came from a jury of eight men and four women. The judge said at sentencing: “A trial is a search for the truth. It’s an imperfect process.”
Persky also appeared to rely heavily on letters that Turner’s friends and family sent and read an excerpt from a former classmate who told the judge she couldn’t believe the assault allegations.
“To me that just rings true,” the judge said. “It sort of corroborates the evidence of his character up until the night of this incident, which has been positive.”
The letter in question, however, includes a lengthy rant that places blame on the woman for being attacked: “I’m sure she and Brock had been flirting at this party and decided to leave together … I don’t think it’s fair to base the fate of the next ten + years of his life on the decision of a girl who doesn’t remember anything but the amount she drank. … Where do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.”
Persky repeatedly emphasized the effect the case has had on Turner, at one point saying: “The character letters that have been submitted do show a huge collateral consequence for Mr Turner.”
You’d think it was vandalism or a parking violation or returning a library book late. The guy grabbed a human being who was unconscious and raped her – where is the judge’s sympathy for the huge NOT SO collateral consequence for her? What about her??
In her letter to the judge, Dauber wrote that Stanford’s surveys have found that 43% of female undergraduates have experienced sexual assault or misconduct, and that more than two-thirds of them said perpetrators took advantage of intoxicated victims. But only 2.7% of students who experienced assault or nonconsensual sexual contact reported it to the university.
Turner’s sentencing only does further damage, Dauber added, noting that she has observed nonviolent drug offenders receive much harsher treatment by judges.
“Aaron Persky is telling these women don’t bother calling police. Even if you get through a trial and even if you manage to get a conviction, I will not impose a serious sanction,” Dauber said.
Because you’re just a woman. Women don’t matter.
JHC, I just choked on my sandwich and snorted focaccia, chutney and blue cheese up my nose. Thanks.
Mind you, I shouldn’t have been reading any more of this story during or after lunch. My stomach goes into a tight knot and I get angry every time.
” no significant record of prior criminal offenses”
What does the judge consider significant? I mean, obviously not RAPE, so the guy might have raped before. But I guess he didn’t murder any nice white men, or rob a bank, or park in the judge’s parking spot.
I’m all for not destroying someone’s entire life (because no one can truly be beyond redemption) but dude, accountability is a thing. Someone has to be held responsible.
There’s sort of a Streisand Effect going on here. Instead of this being in the local media for a few days or weeks it has gone global.
“Where do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.”
Yeah… refraining from fucking unconscious people is mere political correctness. What a nice lady.
I have never understood character witnesses. Why are they allowed? What does it prove? To my knowledge we do not have an equivalent of that in the Danish court system
Søren Kongstad @6:
The idea is that, in cases where the matter comes down to competing testimony, a character witness can help establish the plausibility of the defendant’s version of events. The problems, of course, are manifold:
1: The accuser gets no such option. People aren’t called to the stand to verify that the victim is not the sort to invent a story like this. The prosecution’s witnesses are limited to issues of fact.
2: Negative character witnesses are also not permitted–in fact, they’re explicitly disallowed. So you can’t have the half-dozen women the guy has creeped out in various ways on the stand to verify that he really does disregard boundaries.
3: They really do have no business in cases where the facts are already established–but having been allowed in other cases, they are permitted to influence both the jury and (here) the judge.
4: Naturally, privileged individuals have more, and more ‘respectable’ character witnesses to call upon, so they are more able to use this to diminish or escape consequences before the bar.
Freemage,
On what do you base your post @7? I believe you’re misstating the law in multiple respects. This particular case was in California state court, so I’ll use the California Evidence Code:
You’re blurring together two slightly different concepts, which are treated slightly differently: reputation for truthfulness, and character evidence used to prove conduct. But it’s just not the case that “[t]he prosecution’s witnesses are limited to issues of fact.”
The general rule is that “[e]vidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” Evidence Code section 786 (emphasis added). Sometimes that evidence might be excluded for other reasons, but there’s no blanket rule against evidence to bolster a witness’s credibility.
And as to things other than honesty: one of the exceptions in criminal cases is for “evidence of the character or a trait of character . . of the victim of the crime. . . if the evidence is (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).” Evidence Code section 1103. So if the defense tries to attack a witness on that ground, evidence of the victim’s good character would be allowed in rebuttal.
Only partially true. The prosecution can’t introduce evidence of “prior bad acts” (other than actual convictions) if the defendant hasn’t tried to argue his good character. But if the defendant chooses to raise the issue, the prosecution is allowed to rebut it. See Evidence Code section 1102(b). And if the defendant himself were to waive his Fifth Amendment right and choose to testify as to, e.g., how he always treats women with the greatest of respect, that opens the door to impeachment as well.
I can’t tell from your phrasing whether you already know this or not, but the jury didn’t see the father’s letter. When it comes to sentencing, the evidentiary rules are much more relaxed — which is why, for example, letters are accepted instead of live testimony under oath.
I agree with you, though I’m not sure how often these things really make a difference. It sounds like the judge here empathized with the defendant (college athlete), so the letters may have had little impact. And in fact, the judge went with the recommendation of the probation report, so the blame should also go to the officers who prepared that.
Screechy Monkey: I appreciate the work you put into correcting my misunderstandings and clarifying all of the fiddly bits of the law. It does seem a bit more reasonable than I’d believed, though I still do think the nature of privilege plays into it a fair bit.
Freemage,
I agree with you that in general, the kind of arguments that get made for leniency tend to advantage the privileged. But then, doesn’t pretty much everything?
And I’m not sure that there’s a good solution. I wouldn’t want to say that letters of support shouldn’t be allowed or should be disregarded entirely. Stuff that applies to just about everyone (“the defendant is kind to his family and friends, and his dog really loves him”) shouldn’t get much weight, though I suspect most judges are smart enough, and see enough of these things, to see through that part. It also shouldn’t really matter whether they come from “important” or “respectable” people — and there I’m less confident of judges disregarding it.
But sometimes they might provide useful information that a judge might want to take into account. If nothing else, I think we want to give defendants the confidence that they’ve been heard from. Victims, too, via impact statements.
Some perhaps interesting thoughts on the subject in this blog post from a former prosecutor and current defense lawyer.
This from Popehat on how to solicit (or write) a character witness letter.
https://popehat.com/2016/04/29/how-to-write-or-solicit-a-good-letter-supporting-a-defendant-at-sentencing/
That letter pretty much shattered every bit of guidance he gave, and still the judge seemed to agree. I think that says as much about the judge as the letter writer.