A Kaleidoscope on the Brock Turner Case

The facts are well known.  There is no need to reiterate the basic facts.  If you read the victim's statement, Turner's statement, and the PSI, there is very little disagreement among those sources.  While I have not seen transcripts of the trial, the coverage of the sentence, and the reaction to it, has permeated our public space.
Trigger warning.  These are a few of my thoughts about the Stanford case involving Brock Turner.  These are my thoughts and not the official position of NAPD. 

Kaleidiscope.  The simple definition in Wikipedia of a kaleidoscope is that it is “an optical instrument, typically a cylinder with mirrors containing loose, colored objects such as beads or pebbles and bits of glass. As the viewer looks into one end, light entering the other end creates a colorful pattern, due to repeated reflection in the mirrors.”  The definition I've used all my life is that a kaleidoscope is something that causes you to see things differently every time you change perspective. 

Such is true of the case involving Brock Turner, the 19 yr. old college student from Ohio, or the Stanford swimmer, depending on your perspective. 

The facts are well known.  There is no need to reiterate the basic facts.  If you read the victim's statement, Turner's statement, and the PSI, there is very little disagreement among those sources.  While I have not seen transcripts of the trial, the coverage of the sentence, and the reaction to it, has permeated our public space.

The judge tried to look at Turner, the PSI, the victim's statement, the evidence heard at trial, and apply the law.  One thing missing from most of the commentary has been the observation that nothing illegal occurred in the sentencing.  The recall movement waged by a law professor and friend of the victim condemns not about a lawless judge but rather against a judge who operated within his discretion.  As Sajid Kahn has pointed out in his NAPD blog post, the judge followed the California law in sentencing Brock Turner to 6 months in jail for three felony convictions essentially amounting to digital penetration of an unconscious person incapable of consent. “Judge Persky fairly applied those factors and rendered a reasonable, thoughtful sentence within the confines of the law.  He should be applauded for exercising discretion and mercy, not demonized.”

Turner was not convicted of “rape.”  While the media and internet have characterized the crime involved as a “rape,” that was not what he was convicted of.   Nor would the crime have been defined as a rape in my home state of Kentucky.  Here, rape carries a 10-20 year sentence with a mandatory minimum of 85%, with no possibility of probation and with lifetime registration.  Rather, because it involved digital penetration, it would have resulted in a conviction of first degree sex abuse, punishable by 1-5 years in prison with a possibility of probation.  Little of the media coverage pointed out that “rape” is a matter of statutory law defined differently from state to state. 

When Turner viewed his case through the kaleidoscope, he saw that he was drunk and knows that he feels remorseful.  Much has been made in the media of Turner's alleged “lack of remorse.”  Yet, according to the probation officer, charged with being neutral, Turner stated that he thought what he and the victim were doing was consensual.  He believed what he had done was caused by his drunkenness.  Turner expressed remorse to the probation officer, stating “having caused someone else pain, I mean, I can barely live with myself…Her having to go through the justice system because of my actions, it's unforgiveable.”  “I can't believe I imposed so much suffering on her and I'm sorry.”  In that same PSI, the probation officer stated that Turner expressed “genuine remorse and empathy.”

When the victim turned the kaleidoscope, she felt violated and outraged.  In a powerful statement that went viral, the victim shared her feelings about the assault.  Any public defender handling these kinds of cases should read her account, written after the trial had occurred.  She did not believe Turner was remorseful.   “Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public.”  She also expressed outrage at the trial process and the questioning that occurred from Turner's lawyer. She said the lawyer had “pummeled” her with “narrow pointed questions” that “dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details…” 

A friend of Turner's turned the kaleidoscope a bit, and the case was about party culture on college campuses.  There is a prevalent view of what a rape looks like, primarily from pre-1985.  This view has been changing since that time.  However, while the laws may have changed eliminating the forcible compulsion requirement for example, it has not necessarily changed in the minds of many.  For example, one college student and friend of Turner's was quoted as saying.  “This is completely different from a woman getting kidnapped and raped as she is walking to her car in a parking lot,” Rasmussen wrote. “That is a rapist. These are not rapists. These are idiot boys and girls having too much to drink and not being aware of their surroundings and having clouded judgement.”

To the probation officer, the defendant should have been sentenced to a term in the county jail, formal probation, and sex offender treatment.    “Monica Lassettre, the probation officer who wrote sentencing recommendations, advised the judge to be lenient partly on the grounds that Mr. Turner was drunk. ‘This case, when compared to other crimes of similar nature, may be considered less serious due to the defendant's level of intoxication.'”

Turner was assessed by the probation officer as a low-moderate risk for recidivism. According to the PO, the victim told the probation officer that she did not want Turner to “rot away in jail”, she didn't want him to “feel like his life was over,” but she did want him to “feel remorse” and to know “it hurt me.”  “He doesn't need to be behind bars.”  She stated she wanted him to receive “counseling” so that “something like this doesn't happen again.”  Parenthetically, once the trial had occurred, the victim changed her mind about not wanting him to serve time in jail.

Turn the kaleidoscope a bit more, and it is about the fact that a sexual assault occurred and not about why it happened.  Vice President Joe Biden, long an advocate for victims of domestic violence, had strong things to say after reading the victim's statement.  Biden, the author of the Violence Against Women Act, condemned harshly those who probed the details of the victim's behavior.  Even disagreeing with the victim, he stated that it was irrelevant how much she had to drink.  (her blood alcohol level was almost three times the legal limit).

To the prosecutor viewing the kaleidoscope, intoxication of the victim was a reason for a harsher sentence.  “Alaleh Kianerci, the deputy district attorney who prosecuted the case, saw the woman's intoxication as a reason for a harsher sentence, and she urged the judge to impose six years. The fact that the victim was so intoxicated was an ‘aggravating factor warranting a prison sentence,' Ms. Kianerci wrote.”

Should lifetime registration be viewed as part of the penalty?  The fact that Turner is now a sex offender, a felon, who must register as a sex offender for life, was mostly lost on the nation's commentariat.  Not so said Sajid Kahn, who wrote:  “Mr. Turner is now a convicted felon, a branding he cannot shake for the remainder of his being. He must register as a sex offender for the rest of his life.  He must pay the victim restitution for any damages or losses she suffered.  A probation officer will vigorously supervise him and require that he participate in various programs like substance abuse counseling and sex offender treatment.  If he violates his probation by failing to comply or by committing a new crime, he can still be sentenced to up to 14 years in state prison.  Not exactly lenient.”

Unknown is whether he will have restrictions on where he can live, whether he can be around children or playgrounds or similar places.

To the ABA President, this is about judicial independence.  As mentioned above, the recall petition is being led by a law professor.  She is doing so without apparently recognizing the impact of her efforts on the nation's judiciary.  This is not lost on our nation's organized bar.  ABA President Paulette Brown reflected on judicial independence and impartiality on June 2, 2016:

“The American Bar Association is a strong defender of judicial independence and the rule of law.  The strength of our democracy and the maintenance of the rule of law lie in the independence and impartiality of our judiciary.  

While publicly criticizing judicial decisions is every person's constitutional right, levying personal criticism at an individual judge and suggesting punitive action against that judge for lawfully made decisions crosses the line of propriety and risks undermining judicial independence. Anyone running for the highest office in the land should understand that the independence of the judiciary is essential for an effective and orderly government and justice system.”

My take.  So there you have it.  There's even a name in Wikipedia for this kaleidoscopic phenomenon.  It's called the Rashomon Effect, defined as “…contradictory interpretations of the same event by different people. The phrase derives from the film Rashomon, where the accounts of the witnesses, suspects, and victims of a murder and possible rape are all different.”

I am a lifetime public defender.  I spent much of my practice running a public defender office in Richmond, Kentucky, the home of Eastern Kentucky University, a campus of 15,000 of so students.  I had cases like Brock Turner's.  I understand the Rashomon effect. 

There is one thing I can say about all this that I have not yet heard.  When I turn the kaleidoscope, this case is about context.  Prosecutors don't usually like context.  Prosecutors traditionally want to focus only on the crime.  If it is a murder, they want the jury only to look at the planning and execution of the murder.  They don't want to look at or consider what happened before or after.  If it is a theft, they want to focus on the actual theft and the damage to the victim.  They don't want to think about the squalid conditions the defendant was living in, or the unpaid bills from the hospital.  And if it is a rape of woman at a fraternity party, the case is over and shut at the point that sexual contact occurred with an unconscious woman.  The prosecutor doesn't want to look at the age of the defendant, the fact that this occurred at a party where everyone was drinking heavily, or that Turner and the defendant were exceptionally intoxicated, or the effect of intoxication, or that the defendant thought the encounter was consensual, or…you get the idea. 

We as public defenders focus on context, the before, the after, the why of it all.  We talk about why the person felt fear and pulled a gun and shot.  We talk about the extent of the mental illness causing her to break into the trailer and fall asleep.  We live on mitigation.  We demand empathy in ourselves and of other players in the criminal justice system.  We tell stories packed with context.  We resist the robot-like focus on the facts, just the facts.  We know that “there but for the grace of God go I” and by God we want the jury, the prosecutor, and the judge to look at our client with empathy rather than the cold eyes of retribution. 

In this case, any public defender would have focused on the context.  We would have highlighted that client had a .13 level of alcohol in his blood, above the legal limit.  The victim had three times the limit, which in my memory is close to a lethal dose of alcohol.  In short, both of these young people, one 22 and the other 19, were dangerously intoxicated.  And voluntarily so.  And intoxication was the context in which this crime occurred.   Their ages were the context.  The party was the context.  Having no criminal record was part of the context. 

Context is precisely why judicial independence is so important.  Sentencing cannot be just about the 5 minutes involved in a crime.  Nor do we not want sentencing to be conducted based upon majority opinion or upon trends in social media.  We want judges to be presented with all the facts, and to be free enough to make a wise and rational decision, based upon all of the facts, applying the law with human empathy for both the victim and the defendant.

I think I know how this is going to end up:  more mandatory minimums and harsher penalties.

What now?  This has become a major story that will no doubt reverberate through the halls of legislatures in state courts throughout America.  Advocates will seek to limit judicial discretion in sexual assault cases.  They will seek to lengthen sentences.  Mandatory minimums will be created. 

Judges, many of whom are elected, will react too.  They will not say that they are taking into consideration the efforts to recall Judge Persky. But judges will be looking over their shoulders when they make pretrial decisions, sentencing decision, and revocation decisions.  They will not want the internet to explode on them.  They will become cautious.  Empathy will be set aside.  No one ever complains if a judge sets a high bond or denies probation. 

We see the immediate impact already.  Prosecutors are now taking advantage of the situation in Santa Clara.  They recently filed a motion to remove Judge Persky from another sexual assault case, after he granted a defense motion to dismiss in a misdemeanor stolen property case.  What one had to do with another is unclear.

One theme in many of the comments on the internet has been that poor people and persons of color would not have had the same luck before the judge that Turner did.  Yet, many are beginning to identify the likely consequence of the recent outrage:  sentences will be longer, mandatory minimums will be imposed, and poor persons and persons of color will be hurt, as they so often are.   “This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures. In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment? The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.”

So there you have it.  My take, using my own individual kaleidoscope.