Eye on the Courts: Beware of What You Wish For

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scales-justice-blurred

In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ’em
And that ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin’ that way without warnin’
And he spoke through his cloak, most deep and distinguished
And handed out strongly, for penalty and repentance
William Zantzinger with a six-month sentence
—The Lonesome Death of Hattie Carroll, Bob Dylan, 1964

It was like something out of a classic Bob Dylan song, where the subject of the song committed a senseless and selfish murder, killing 51-year-old African American barmaid Hattie Carroll, but he was privileged.  The modern version is Brock Turner, who was sentenced to just six months after being convicted of sexually assaulting an unconscious, intoxicated drunk woman outside a Stanford frat party in 2015.

While on the surface there may seem to be no way to defend this sentence by the judge, on the other hand, I worry that the backlash is misplaced.  There have been calls for recall and reform in the system.  The problem is that, while I have a lot of problem with the system – in my nearly seven years of covering the courts locally – the problem almost always is sentences that do not fit the crime because they are too harsh rather than too lenient.

The first court case I covered in Yolo County saw Ajay Dev sentenced to 378 years for the rape of his adopted daughter – a punishment that at the time seemed absurd and the concern has only been heightened by the belief that Mr. Dev is innocent.

For those who think that harsh penalties for convicted rapists are most appropriate, another early case we covered from 2010 involved the theft of a package of shredded cheese from the Woodland Nugget Market that resulted in a nearly eight-year sentence for the defendant.  The Yolo County DA originally sought a life sentence for Robert Ferguson in 2010, only to have a Yolo County judge reduce it to a second strike offense, which meant seven years and eight months.

If you believe such absurd sentences are things of the past, next week Eric Lovett might receive a 45-year sentence. While on trial for being an accessory to attempted murder, he allegedly threatened the complaining witness by making slashing finger gestures in court.  Despite the ambiguous nature of the video of the court proceedings and the fact that only a police officer actually saw it in real time, the jury convicted him of attempting to dissuade a witness, while hanging on the main charge in the case.  Because of his history and strike offense, Mr. Lovett now faces a life sentence – in effect for making obscure finger gestures in court – while a rapist goes free after a six-month jail sentence.

But it is the Brock Turner case that has captured the imagination of many in the nation – one million of whom have signed a petition urging that the judge be recalled.

At first, Santa Clara County DA Jeff Rosen seemed to oppose such a move.  In a statement following the sentence he said, “While I strongly disagree with the sentence that Judge Persky issued in the Brock Turner case I do not believe he should be removed from his judgeship.”  Elsewhere he noted that Judge Aaron Persky had been a fair judge.

But last week, with the firestorm swirling, Jeff Rosen’s office filed a Code of Civil Procedure section 170.6 motion, something he called “a rare and carefully considered step,” to remove Judge Aaron Persky to prevent him from presiding over a preliminary hearing for a male Kaiser Permanente surgical nurse accused of sexually assaulting a sedated woman.

He stated, “We are disappointed and puzzled at Judge Persky’s unusual decision to unilaterally dismiss a case before the jury could deliberate.  After this and the recent turn of events, we lack confidence that Judge Persky can fairly participate in this upcoming hearing in which a male nurse sexually assaulted an anesthetized female patient.”

From our experience, the use of a 170.6 is not that rare, but it illustrates the heated nature of this case.

The Santa Clara County Bar Association has, however, weighed in on the judge’s side, arguing for “the importance of judicial independence.”

“Judges have a duty to apply the law to the facts and evidence before them, regardless of public opinion or political pressure,” the statement from the Bar Association states. “If judges had to fear direct, personal repercussions as a result of their decisions in individual cases, the rule of law would suffer.”

But the judge is also starting to see other defense as well.

A group of defending attorneys started their own petition, arguing if the judge is forced out, “When we as a community reprimand or condemn a judge for engaging in such a holistic analysis and for exercising discretion, such efforts can have a chilling effect on judicial courage and compassion,” the letter states. Punishing him, the defenders explain, will “deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal.”

Deputy Public Defender Sajid Khan in a blog post warns, “Mass incarceration is largely a result of judges who have either not utilized discretion in sentencing or who have been deprived by state legislatures of discretion.  This lack of discretion has manifested in draconian sentences and overfilled prisons.  Rather than using robotic, one size fits all punishment schemes, we want judges, like Judge Persky, to engage in thoughtful, case by case, individualized determinations of the appropriate sentence for a particular crime and particular offender.”

By allowing judges to have discretion, we allow the independent and neutral judgment of an individual who has not only watched the trial, but also weighed probation reports and other considerations.

In the end, allowing for individual discretion to enter into the equation means that sometimes the judge will get it wrong.  But it is better, in my view, to allow for human error than to allow bureaucracy to demand that the Robert Fergusons of the world get harsh sentences for extremely minor crimes.

There is a final point by Mr. Khan that I have not seen made in the mainstream accounts of this case.  Judge Persky is being demonized for following the recommendations of the Santa Clara County Probation Department.

Here is how the system works – in general, most crimes in California come with a range of potential punishments, based on the history of the offender as well as the nature of the crime.  Generally speaking, a case is submitted to the county department of probation, which may interview the offender and the victim, and take all sorts of factors into consideration – including sentencing law – when making a recommendation.

The judge then takes that into account when making the ruling on the final sentence.

In this case, Mr. Khan writes, “after the jury found Mr. Turner guilty, the Santa Clara County Probation Department submitted a probation report along with a recommendation to the Judge about the appropriate sentence.  This report would include a summary of the offense, an interview with the victim, an interview and analysis of the offender and then a breakdown of statutory aggravating and mitigating factors and sentencing criteria.”

He notes, “With regard to Mr. Turner, the probation department recommended, based on all of the circumstances and factors of the case, that he receive a county jail sentence along with probation supervision.”

It seems that all Judge Persky did was follow the recommendation of probation when he issued the sentence.

I am not saying he was correct in doing so – but certainly probation had a lot more information about this case and the defendant than any of us.

Mr. Khan writes, “The sentence Judge Persky imposed upon Mr. Turner is exactly what I would want for a public defender client of mine under similar circumstances.  Mr. Turner, just 20 years old, had no prior criminal history and an exemplary record as a student-athlete. Probation, rather than prison, is the expectation for such an offender.”

I do worry about the rationale in this case.  While Mr. Khan makes a strong point here, I think this illustrates a fundamental bias in the system that generally plays against Mr. Khan’s clients.  As the Marshall Project notes, “Critics of Persky’s sentence in the Turner case say that people without the young man’s status — privileged, white, a promising athlete — are sentenced more harshly.”

On the other hand, Mr. Khan argues, “No one has been able to cite an example so far of him (Persky) where a similarly situated minority client has been treated harshly by him.”

In the end, I think the critics have a point that many do not have the young man’s status, but the remedy will be to ensure that all, regardless of circumstance and lack of prior record, will be subject to the same punishment – and that is a place I do not believe we want to go.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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14 thoughts on “Eye on the Courts: Beware of What You Wish For”

  1. nameless

    I disagree with the premise of this entire article.  Getting judges to implement appropriate sentences for egregious crimes does not necessarily mean an increase in overly harsh sentences.  A 6 month jail sentence for raping an unconscious woman is absolutely ridiculous and should result in the judge being recalled.  Same goes for the judge that gave probation to the teen who killed 4 people while driving drunk.   Rape and DUI are two crimes that are often not properly addressed in society.  How many times have we heard of cases where a defendant convicted of killing someone while DUI has been caught and convicted of driving DUI many times prior?   A slap on the wrist for heinous acts breeds contempt for the law.  The fact that the student who raped the unconscious woman had no criminal record is not particularly persuasive to me – it just means this is the first time he got caught.  My guess is this was not the first time he committed such a crime.  Remember Van Der Sloot?  Perfect example of what I am talking about.  Van Der Sloot had no prior criminal record either – even after he killed Natalie Holloway.  Finally he was convicted after killing another girl.  Do you honestly think the student who raped the unconscious girl and was sentenced to a mere 6 months has been properly punished?  What if it were your daughter who had been raped by this creep?  This sort of laissez faire attitude by the judge (and the probation department) towards rape is why we have had things like the Tailhook scandal.

    1. David Greenwald Post author

      Not following you here – how do you get a judge to implement your preferred sentence without binding them?  Also, bear in mind, that the probation department recommended this sentence, so this was not simply a judge acting on his own.  The only way to change this is to change the sentencing guidelines.

      1. nameless

        Hold judges’ feet to the fire when they don’t do the right thing – it is called RECALL.

        The probation department was just as ridiculous as the judge – but the buck stops with the judge. The judge had to have known 6 months was too light a sentence…

        1. David Greenwald Post author

          I like that you are looking for change without changing the sentencing guidelines. As a general rule however, I have seen a lot of injustice in the courtroom and don’t believe that recall is generally feasible as an option. This case is highly unusual. But I worry that he may have been a good judge that made one mistake. I think Scheney’s comment with the information about what the victim told probation needs to be factored in.

    2. Scheney

      This post perfectly illustrates why judges implement sentencing, not by public opinion.  Through personal experience, the sentence given is not uncommon.  In fact, it seems typical for cases like this.  The victim was interviewed by Probation and she communicated at that time that she didn’t want her assaulter to go to prison.  That and other aspects such as lack of prior convictions, age, substance abuse, etc., form Probation’s recommendation for sentencing.  It was only after sentencing that the victim went public with her letter describing the inadequacy of the legal system’s resolution of the harm she suffered.  I think people are surprised by the absence of the feeling of vindication when a trial comes to an end.  I empathize with the young woman and am so sorry that she is suffering, but I question whether the public outcry will accomplish this either.  She has a long difficult road ahead of her and I believe her healing lies in self compassion and eventually, possibly, forgiveness.

      1. Tia Will

        Scheney

        The victim was interviewed by Probation and she communicated at that time that she didn’t want her assaulter to go to prison”

        Thank you for posting this piece of information. There is a point of view that has not yet been addressed but which I believe to be relevant. I do not believe that “punishment” is the goal that we should be using. I believe that societal protection and individual rehabilitation should be our goals if what we truly desire are better outcomes rather than just punishment and/or revenge.

        I speak as someone who has extensive experience dealing with both the short and long term effects of rape ( a crime of violence in my opinion) and lesser forms of coerced and/or manipulative sexual activity. The victims are just as divided as are the commenters here, and those calling, or not calling for the recall of the judge. Further, victims attitudes towards the event itself and the offender often vary over time. Some victims have a strong desire for punishment. Others just want reassurance that the offender understands and will not act in this manner again.

        What I would recommend in a case such as this is a strict house arrest ( the societal protection part) accompanied by prolonged education on the long term effects of rape and prolonged public service ( the rehabilitation part). I do not think that this young man should be denied his education nor do I believe that a long prison sentence is in the best interest of the victim, the offender or our society as a whole.

         

        1. nameless

          If it were your daughter, wouldn’t you want the perpetrator punished?  Secondly, punishment acts as a deterrent.  If the public is sent the message that rape will only get you six months in jail, rape is much more likely to occur than if the public is sent the message you will get 15 to 25 years, as in the Vanderbilt case.  Both involved the rape of an unconscious woman.  What do you think a fair sentence is for the rape of an unconscious woman?  I find it very discouraging that commenters seem to think 6 months was an okay sentence under the circumstances.  Sheeeeeeesh!  What message does that send?  A mere slap on the wrist…

  2. The Pugilist

    “A 6 month jail sentence for raping an unconscious woman is absolutely ridiculous and should result in the judge being recalled.”

    “The victim was interviewed by Probation and she communicated at that time that she didn’t want her assaulter to go to prison.”

    This is the connundrum that probation took into a account that you didn’t nameless.

      1. The Pugilist

        Probation weighs a number of factors.  While there is the punishment aspect to the sentencing, there is also the possibility of future offense which is weighed by past record but also he is likely well aware that he will not get a second chance here – if he commits a similar crime he will most likely face the maximum penalty.  Given that, I’m not as sure as you are that probation and the judge erred.  What I am sure of is that a black kid in the same position – no record, athlete, same crime – would have received prison time.  That would be where my biggest concern is – the inequity of the system.

        1. tribeUSA

          This student perp wasn’t white, he was green (as in his family had the $ to purchase very effective legal representation). A more accurate statement might be that a non-green Stanford student would be likely to get prison time.

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