Rapist Brock Turner’s probation delema

Before retiring as a public defender, Aram James handled thousands of probation violations. In his essay, he writes that to fully evaluate Judge Persky’s sentence of Brock Turner, the public needs to account for what being on probation really means to those convicted of a crime.

Former Stanford student and potential Olympic swimmer Brock Turner, a 19-year-old freshman at the time of this incident, was convicted in March of three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. The victim was a 22-year-old female college graduate, from another university, who attended the same alcohol-fueled Stanford fraternity party as Turner.

On June 2nd, Judge Aaron Persky of the Santa Clara County Superior Court, the same judge who presided over the trial, and after reviewing and considering a very detailed probation report prepared by a senior female member of the Santa Clara County Probation Department — including statements from the victim and defendant, and numerous letters attesting to Turner’s good character — sentenced Turner to six months in the county jail, with three years of formal probation. The sentence imposed was entirely consistent with the probation officer’s recommendation. Turner had no prior record.

The perceived leniency of Persky’s sentence set off a near public lynching of both the defendant Turner and Persky. A media and social media lynching that were witnessed by the entire nation. Calls for Persky to resign or face a recall election over the case continue to this day.

What is often overlooked when the public hears about the terms of a sentence, is the gravity of probation, and how perilously close a violation could be, which triggers a lengthy prison comittment.

Before retiring as a career public defender I handled hundreds, if not thousands, of felony probation violations. I can attest to the fact that young offenders, closely supervised on felony probation, frequently fail to make it through formal probation unscathed.

The numerous potential pitfalls of formal probation are an important reason why the six-month initial county jail sentence cannot be viewed in a vacuum. To understand the severity of the punishment, one must understand the part probation plays in the overall sentencing scheme.

Defendants, who may have initially received what appears to be a light sentence for a serious crime, often end up serving some, if not all, of the maximum prison time they could have received at the time of the original sentencing.

In Turner’s case, this means if he violates probation he could well end up serving a prison sentence of three to 10 years, or more — hardly a slap on the hand.

Given the infamous cause celeb status that this case has achieved, Turner is now one of the most reviled defendants in American. He will undoubtedly be closely scrutinized on probation. Turner will be on a very short leash.

A defendant on probation is spared prison only so long as he agrees to severe limits on his freedom. The terms and conditions of probation define the quality and limits of a defendant’s freedom.

Even a minor violation — e.g., failure to report to your probation officer, even on one occasion, or a one-time violation of a no drug or alcohol condition — can result in the revocation of probation and imposition of a previously suspended prison sentence.

So what does three years of formal probation really mean in the context of the Brock Turner case? Based on the nature of Turner’s convictions, the terms and conditions of his probation are multiple, complex, restrictive and appropriately oppressive.

As an example, while on probation, Turner was ordered by Persky to participate in and complete an approved sex offender program, of not less than one year, and up to the entire three-year term of his probation. His failure to complete this program, or for that matter any other program ordered by the court, would trigger a revocation and a potential prison sentence.

As part of the sex offender program, Turner will be required to submit to polygraph exams to monitor and ensure compliance with the program.

As a further public safety measure, Turner will be required to waive his psychotherapist-patient privilege, allowing his therapist to speak directly to Turner’s probation officer re his progress or lack thereof.

Turner must register annually as a sex offender for life, and each time he changes his residence. He must reregister within a few days of moving. Failure to register in a timely manner would be both a new crime, allowing for the potential of new charges and a separate prison sentence, and a violation of his current probation.

Turner must submit to drug and alcohol testing to ensure he is complying with the terms of his probation, that he not consume alcohol or drugs, or frequent places where alcohol is sold or consumed as a primary business.

He must waive his Fourth Amendment rights, to be free of illegal and warrantless searches, and thus submit to random searches and seizure of his person, vehicle and place of residence, at any time.

Upon an alleged violation of probation, Turner, would be returned to court to face a hearing. Unlike with a new offense, there is no right to a jury trial when charged with a probation violation. A judge sitting alone hears the matter.

To find a violation the judge need only determine that the evidence proves the violation by a preponderance of the evidence, not proof beyond reasonable doubt, as required at a jury trial.

If the judge, after hearing evidence of the alleged violation, concludes that Turner has in fact violated his probation, the judge can then sentence him to the maximum sentence, he faced at the time of the original sentencing.

In my experience, judges assigned to hear probation violations are some of the most putative jurists on the bench. Need I say, that given the media attention and wave of vitriol directed at Tuner, he will be the closest watched probationer in America.

Given the dizzying probationary maze faced by Turner, it is hard to quarrel with Persky’s initial sentence.

As a society ruined by the scorch of over incarceration, it is critical that we have judges who have the discretion to encourage a rehabilitative model-first approach, while at the same time imposing severe conditions of probation that maximize public safety and protect us from truly violent predators.

The sentence in the Turner case more than adequately balances both the public safety and the rehabilitative purposes of probation.

Many of the same progressive voices who have spoken out long and passionately against over incarceration, mass incarceration, the disproportionate sentences imposed on the poor and people of color, are now doing an about face in the Turner case.

They are shouting out that more of the same cruelty and barbarism should have been handed down in the Turner case. The same mentality that has brought us to our current failed state of mass incarceration.

Instead of blindly demanding that a white male elite be sentenced to prison for his first offense, the better logic is to demand the same measure of justice and mercy, for similarly situated defendants of color and the poor. We must look to rehabilitation and restorative justice first, and harsh and unforgiving prison sentences, only where absolutely necessary.

The vengeful model of sentencing has proven over and over again to lead to recidivism, overcrowded prisons, and little or no true comfort or safety, for the victims.

We should support Persky’s rehabilitation-motivated sentence, as an extension of the progressive movement’s call, for an end to our country’s failed mass incarceration polices.

(A version of this article was originally published in the Daily Journal.)

Recall Judge Persky, Judge Joanne McCracken and DA Jeff Rosen

Judicial Recall
Judicial Recall

If you demand that Judge Persky be removed from office than you need to demand that Judge Joanne McCracken and DA Jeff Rosen be removed from office for setting the precedent for Judge Persky to follow.

If Brock Turner were a Palo Alto Police Officer and sexually assaulted 5 women Judge McCracken would sentence him to a year in jail.

If Brock Turner were a De Anza baseball player instead of a Stanford swimmer and participated in the gang rape of an underage female DA Jeff Rosen would not have even prosecuted him.

Judicial recall efforts

There are two online petitions and an official recall effort spearheaded by Stanford Law Professor Michelle Dauber whose objective is to remove Judge Aaron Persky from the Santa Clara County Superior Court Bench because he handed down a 6 month jail sentence to Brock Turner who had been convicted of sexually assaulting an unconsciousness woman on campus.

Turner could have been sentenced up to 14 years in prison and the state minimum is 2 years, the prosecutor sought a sentence of 6 years. We agree with Mrs. Dauber, however if Persky should be removed from office then so should Judge McCracken and DA Rosen based upon similar injustices.

In 2001 then Santa Clara County prosecutor Joanne McCracken, struck a plea deal with former Palo Alto Police Officer Luis Verbera who had sexually assaulted several women while on duty, in uniform and one of whom was hand cuffed in his patrol car, (a total of 4 felonies and 1 misdemeanor), that sent him to county jail for 1 year. He was looking at up to 7 years.

Unlike Turner, Verbera did not have the excuse of being drunk which impacted Judge Persky’s decision to give Turner a light sentence. Unlike Verbera, Turner only had one incident whereas Verbera committed at least 5 separate assaults on 5 different women.

Different standards of Justice 

Question, why didn’t the Santa Clara DA’s office offer Turner the same kind of deal that it offered former Palo Alto Police Officer Luis Verbera?

Judge Persky simply followed the Santa Clara DA’s, prosecutor Joanne McCracken’s, recommendation for sentencing by using the Verbera sentence as a guideline.

Deputy District Attorney Joanne McCracken stands behind the plea agreement, saying that it was in the best interest of the women involved.

McCracken said the resolution was “appropriate,” given the severity of Verbera’s punishment and the court’s treatment of Verbera’s victims, who will now be spared the added trauma of testifying in court. “The victims generally feel very traumatized, but they feel a sense of relief that the case has been resolved before trial,” McCracken said

Victim conflict with prosecutor

McCracken is contradicted by at least one victim, Ronelle Meier. Ms. Meier sought out her day in court but was denied due to her failure to file a claim with the city within the 6 month statute of limitations.

Ms. Meier alleges that members of the Palo Alto Police and employees of the City of Palo Alto deceived her by not informing her of the deadline despite numerous complaints made to the PAPD about Ofc. Verbera. “…My allegations were [sic] covered up by the conduct and lies of the Officers of the Palo Alto Police Department and employees of the City of Palo Alto,” she said.

Judge Charles W. Hayden echoed McCracken’s sentiments when he stated:, “I’m glad we have been able to resolve this without putting the victims through the pain and agony of protracted litigation.”

Cut from the same judicial cloth as Judge Aaron Persky 

On the surface it appears that both McCracken and Hayden were not so much concerned about the victims but what would have been revealed in a trial about how the Palo Alto Police attempted to sweep Ms. Meier’s and potentially other victims’ allegations under the rug.

Joanne McCracken is currently a judge for the Superior Court of Santa Clara County just like Judge Persky. If you believe that Judge Persky should be removed from the bench then surely you must feel that Judge McCracken should be removed from the bench for committing the same injustice toward women.

In 2007 there was an alleged gang rape of a teenage girl by several members of the De Anza baseball team; a girl whose blood-alcohol level was three times the legal limit while she lay motionless in a pool of vomit some of which was not her own.

Side by Side ComparisonThree sober, female soccer players witnessed the assault and were initially prevented from intervening by one individual keeping guard yet that was not sufficient evidence to prosecute as then DA Dolores Carr said, “one problem was that everyone had been drinking.”

DA Dolores Carr also stated, “prosecution was impossible, largely because the victim herself had no memory of what happened to her.”

Neglected testimony 

Carr neglected the testimony of the women soccer players. Carr complained, “I can’t make up evidence,” yet she ordered the crime lab to stop analyzing evidence to ensure there was no incriminating evidence to be had.

Upon current DA Jeff Rosen taking office he reopened the case in order to assuage public criticism of the former DA’s handling of it and yet came to the same conclusion as DA Carr; that the suspects had sex with an intoxicated girl while other men watched and that one man tried to keep others from coming into the bedroom yet decided not to prosecute because he felt that he could not prove the case in court.

Rosen based his decision on the same rationales that Carr did and therefore all of the criticism directed at his predecessor can also be directed at him.

The victim filed a civil suit against the nine men eventually dropping or settling with seven of them before the trial began. The jury did not find the remaining two guilty however some jurors stated the outcome would have been different if others had remained on the suit.

“It was exactly the wrong guys in my mind,” said juror Courtney Ridings, a schoolteacher. “We were very angry we were left with these two.”

Juror No. 3, a 47-year-old San Jose widow, agreed.

“If there had been other defendants left in the case — and it was a travesty there weren’t — this verdict would have looked a lot different,” she said.

Sheriff Laurie Smith and Sheriff’s Cmdr John Hirokawa who headed the investigation of the ball players believe that a crime occurred and were more than disappointed that the DA decided not to file charges.

Perhaps the fact the state AG got involved in the case at the request of the DA and granted immunity to three of the nine men involved in the incident had a lot to do with the inability to prosecute the culpable parties. Surely the one man who prevented the three soccer players from entering the room and who was positively identified by the soccer players could have been charged with false imprisonment.

Attorney general involvement 

Chief Assistant Attorney General Dane Gillette wrote in a letter to Carr dated Friday. “Without such identifications, we cannot ethically pursue a prosecution,” he wrote. “It is certainly not proper to simply criminally charge everyone who may have been in the room.”

That’s interesting given the fact that the state had no problem going after 6 perpetrators of a gang rape in Richmond that had many similarities to the one involving the De Anza baseball players including an underage female, enormous amounts of alcohol and 20 bystanders. Several were convicted despite the murkiness of the night and the initial difficulty in identifying the perpetrators.

Two standards of justice, one for the white privileged kids of silicon valley and one for the poor colored kids of the east bay. Much like the victim in the Stanford case, the victim the De Anza case did not know whom she had sex with until she was shown photos of the men at the police department, how does a person consent to have sex with someone who she cannot identify?

Furthermore, the victim in the De Anza case was unconscious when the three soccer players drove her to the hospital minutes after they interrupted the sex acts being committed on her.

Even if the DA could not prove the more serious allegations in the De Anza case, the fact remains that the girl was 17 years old which constitutes statutory rape regardless if she consents to have sex or not and regardless if the perpetrators did not know if she was of legal age. It is their duty to make sure she is not under age just like it is their duty not to provide alcohol to minors even if they do not know they are minors.

Rosen’s failure for women everywhere

Jeff Rosen failed to uphold the Rule of Law and violated women everywhere as a result.

Regarding the Stanford rape, Michelle Dauber states that “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.” “He has made women at Stanford and across California less safe,… 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,” she said.

A letter sent to Judge Persky that was signed by 250 Stanford students stated in part “A light sentence, such as probation or a few months in jail, would send the incorrect message that this was not a serious crime. This would undermine the trust in the legal system at large, diminish reporting, and possibly make the Stanford community a more dangerous place for all.”

Previous decisions not to prosecute 

Regarding the decision by the DA not to prosecute the baseball players in the De Anza case: Clark Williams, a San Jose resident who works with crime victims stated, “The decision sent a chilling message to rape victims in Santa Clara County” and “this is exactly why so many victims of crime don’t come forward.”

Mandy Benson, the President of California NOW (National Organization for Women), says that the message sent by the handling of this, [De Anza] case is that “If you send your daughter to school in Santa Clara County, she might be raped–and if she’s raped there will be no one to protect her.”

Rosen sent a message to Persky to take it easy on college rapists associated with kids partying. Katherine Redmond, founder and president of the National Coalition Against Violent Athletes, wondered why the eyewitnesses to the crime (who were sober at the party) were not called to the grand jury to give their testimony.

District attorney Jeff Rosen’s double standards of justice

When DA Carr and DA Rosen disregarded the testimony of the three soccer players and refused to conduct a proper analysis of the evidence they guaranteed that none of the perpetrators could be held accountable. What you just read is the anatomy of an institutionalized cover up. If evidence is required to prove a crime; don’t look for it and eliminate the evidence that is available so that you can tell the victims and the public that you don’t have enough evidence to prosecute.

Judge McCracken and DA Rosen set Judge Persky examples of how to administer justice to the privileged of society. If you feel strongly that Judge Persky should be removed from office than you need to be just as vocal in demanding that Judge McCracken and DA Rosen be removed from their offices for granting the same kind of injustice.

DA Jeff Rosen strongly denounced Judge Persky’s light sentence of Turner yet Rosen reveals his true colors by stating that Persky should not be removed from his position as a judge. No doubt Rosen’s public statements are more about self promotion than they are with upholding an objective and non-bias Rule of Law.

Woman’s groups should be even more outraged at DA Jeff Rosen now that Rosen has placed his double standard on full display.