Who will judge the judges?

“His life will never be the one that he dreamed... that is a steep price to pay for 20 minutes of action.”
This was the judge’s rationale for giving such an incredibly light sentence (click to embiggen)
This is one of those news stories where I don’t want to wait until my Friday round-up of links to talk about it. Among the things voters did in the various states holding primaries on Tuesday, nearly 60% of the voters in one California district voters to recall (remove) a judge: Voters Recall Aaron Persky, Judge Who Sentenced Brock Turner.

The rest of this post is going to be about a sexual assault, including details that I found disturbing when reading earlier coverage of the case, and disturbing again while summarizing before stating my opinion about why the recall was justified. Don’t click through if you don’t want to read about such a crime…

Brock Turner was a Standford University athlete who, in 2015, was caught in the act of raping an unconscious woman behind a dumpster. When the two cyclist who saw the act confronted him, he tried to flee the scene, and was held by one of the cyclists until police arrived. The other cyclist had been unable to wake the woman. Police and paramedics reported they were also unable to wake her. It was hours later in the hospital before she regained consciousness. There was injuries on her body that were consistent with being dragged a distance over the ground. There was evidence of traumatic penetrative damage to her vagina. Her DNA was found under the fingernails of the perpetrator and also, as one report delicately put it, on “other parts of his body.”

He was indicted on a total of five counts:

  • rape of an intoxicated person
  • rape of an unconscious person
  • sexual penetration (by a foreign object) of an unconscious woman
  • sexual penetration (by a foreign object) of an intoxicated woman
  • assault with intent to commit rape

At trial he was convicted of the last three counts (sexual penetration and intent to commit rape). The other two charges were dropped midway through the trial because, if you’re ready for this, they couldn’t prove he had actually ejaculated inside her body.

Throughout the trial and sentencing phase the blond-haired blue-eyed star athlete refused to express remorse and insisted—despite the overwhelming evidence that she had been unconscious before he started and therefore in no position to consent—that it was simply consensual sex in an unusual location.

Prosecutors asked for six years in prison (out of a maximum of 14), while probation officers recommended a moderate sentence in county jail. Santa Clara County Superior Court Judge Aaron Persky sentenced Turner to only 6 months in county jail with three years of probation. In his sentencing statement Persky said:

“His life will never be the one that he dreamed… that is a steep price to pay for 20 minutes of action.”

Which caused a lot of outrage. At the time, the prosecutor on the case expressed disappointment since Turner had refused to accept responsibility and showed no sign of remorse.

The case has had several repercussions. First, in subsequent criminal proceedings jurors expressed an unwillingness to serve on a case with Persky presiding. So Persky stopped hearing criminal cases and started working as a night court judge, issuing warrants and handling initial arraignments. The California legislature passed two laws changing the definition of rape to include any involuntary penetration. It also set the minimum sentence for sexual assault on an unconscious person to be the same as sexual assault on a person who was awake and resisting (seriously?).

Turner only served three months of his six month sentence for various reasons.

So a recall petition was circulated, at which point prosecutors, public defenders, and other judges all circled the wagons saying that if the judge was punished this would set bad precedent that could result in a lot of poor and minority defendants to receive harsher sentences. Which just boggles my mind. Poor and minority defendants already are much more likely to get the maximum sentence for virtually any crime. And if judges are stupid enough to think the that reason 60% of voters in the county wanted this judge removed after he gave an insanely lenient sentence to a wealthy, blue-eyed, blond-haired, white defendant they shouldn’t be presiding over mock trials, let alone hearing criminal cases.

Most of the arguments against the recall hinge on this ludicrous racial justice argument and on judicial independence. A couple of the retired judges who had made statements have claimed that judges need to have flexibility to hand out lenient sentences so that the convicted can be rehabilitated. They specifically refer to criminals who express remorse.

Turner not only hasn’t expressed remorse, he has petitioned to have his conviction overturned because prosecutors referred to the dumpster he dragged the victim behind as a “trash bin” when the official city designation of it is a “garbage enclosure.” I am not making this up!

The same prosecutor who now says that Persky shouldn’t have been recalled, had previously asked Persky to be recused from other cases of sexual assault on unconscious victims which came up after the Turner case. I give a lot more weight to his earlier recusal requests. Clearly he thought there was a problem with how Persky handled such cases.

This isn’t the first time that Judge Persky has bent over backwards to accommodate athletes accused of rape, and to dismiss or ignore the harm to the victim of such rape. So I’m sorry, I think recalling him and replacing him is too lenient a punishment for the judge.

There are a lot of arguments to be made about mandatory minimums and how convoluted the legal definitions of rape are in many states. Maybe recall is a blunt instrument to deal with gross miscarriages of justice. But when it is the only instrument you give the public, don’t be surprised when we use it.

1 thought on “Who will judge the judges?

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