Brock Allen Turner: The Sort of Defendant Who Is Spared “Severe Impact”

June 8, 2016 (Mimesis Law) — Ten years ago my firm represented a kid on a minor drug charge. This kid played an instrument – for the sake of this story, let’s call it a xylophone. He approached the xylophone like he approached geometry, by which I mean he often showed up for it and probably wouldn’t fail it. But by the time we were done writing about that kid in the sentencing briefs, he was the most xylophone-playing motherfucker ever to walk the Earth. He was the YoYo Ma of xylophones, someone whose skills would make angels weep and the doors of fame and success slam open.

We didn’t do that because people who play xylophones are less criminally culpable than people who don’t. We did it because a defense attorney’s challenge is to humanize their client at sentencing. Judges process dozens of defendants a month, or a week, or even a day. If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad. It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection. Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth. At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate. It’s harder to send a man into a merciless hole when you relate to him.

Empathy is a blessing. But empathy’s not even-handed. It’s idiosyncratic. Judges empathize with defendants who share their life experiences – and only a narrow and privileged slice of America shares the life experiences of a judge.

That’s one reason that justice in America looks the way it does.

Last week Santa Clara County Superior Court Judge Aaron Persky sentenced Brock Allen Turner to six months in jail. Turner will probably do half of that – about the length of a single quarter at Stanford University, where he was a student. Most people think that was an appallingly and unjustly lenient sentence for what Turner did: brutally sexually assaulting a drunk, unconscious young woman behind a dumpster outside a party.

Judge Persky clearly empathized with Brock Allen Turner. Turner was a championship swimmer and a Stanford student; Judge Persky was a Stanford student and the captain of the lacrosse team. Judge Persky said that sending Turner to prison would have a “severe impact” on him, that he did not believe that he would be a danger to others, and that he was young. Turner’s victim was not spared a severe impact, despite her youth and lack of criminal record. Her statement was harrowing. Her sentence is lifelong.

Judge Persky’s empathy fell so far into tribalism that he rendered good defense attorney practice irrelevant. Dan Turner, the defendant’s father, offered excuses to the court that were frankly repulsive; he suggested that Turner work to warn students about the dangers of “promiscuity” and characterized the attack as “20 minutes of action.” Turner’s friend, Leslie Rasmussen, indulged in loathsome victim-blaming, suggesting that a Stanford athlete thrusting his hand into your vagina as you sprawl passed out in an alley is the predictable and somewhat justifiable consequence of drinking, and that to pretend otherwise is an example of “PC culture.” Under normal circumstances such letters would be potentially catastrophic for the defense, which is why careful attorneys take pains to prevent them from reaching and enraging the judge. But Judge Persky’s empathy required no caution or moderation.

Despite what Hollywood would lead you to believe, we criminal defense attorneys do not advocate lenient sentences for all wrongdoers as a matter of policy. Many of our clients are frequently victims of crime themselves, and their lives are circumscribed by criminal environments. We don’t believe, in the abstract, that people who tear the clothes off of young women and violate them in the dirt next to a dumpster should go free. Our role is to stand beside our clients, no matter who they are or what they did, and be their advocates, the one person required to plead their case and argue their interests.

This is the closest our society comes to grace or humility. It’s grace because we give this support to defendants whether they deserve it by any objective measure, and it’s humility because we know the system is so capable of grave error in accusing and punishing. So we stand up and talk about our clients’ xylophones. We don’t worry about whether it would be good for society if our arguments win the day, because that’s supposed to be the judge’s role.

Here’s the problem: the judges are human, and they’re humans who have enjoyed enough good fortune to become judges. The quality of their mercy is strained through their life experiences, which don’t resemble the life experiences of most of the defendants before them.

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Sanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right. Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall. That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being.

But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships. Most aren’t even high school graduates. Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge. Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail? How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one? They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin? Experience teaches that the answer is usually no.

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him. No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky. Judges take their youth as a sign that they are “superpredators,” not as grounds for leniency. If you tell a judge that they aren’t a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don’t be ridiculous. Judges don’t think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?

So you won’t find defense lawyers like me cheering Brock Turner’s escape from appropriate consequences. We see it as a grim reminder of the brokenness of the system. We recognize it as what makes the system impossible for many of our clients to trust or respect. And we know that when there’s a backlash against mercy and lenient sentences – when cases like this or the “affluenza” kid inspire public appetite for longer sentences – it’s not the rich who pay the price. It’s the ones who never saw much mercy to begin with.

There are two ways to see good fortune and bad fortune. You can say “someone who has enjoyed good fortune should be held to a higher standard, and someone who has suffered bad fortune should be treated with more compassion.” But America’s courts are more likely to say “someone who has enjoyed good fortune has more to lose, and someone who has suffered bad fortune can’t expect any better.”

Judge Persky and his ilk can’t stop being human. But they are bound by oath to try to be fair. When a judge says you are very fortunate and therefore it would be too cruel to interrupt that good fortune just because you committed a crime, they are not being fair. For shame.

Ken White, who writes about free speech and criminal justice at Popehat.com, is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.

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