In Part 60, Judge Mader discusses the far-reaching implications of the Brock Turner sexual assault case and the challenge of determining the ‘correct’ sentence for a given crime.
The uproar over the “lenient” sentence for Brock Turner, the sexual assault defendant at Stanford, continues. Vice President Biden wrote a personal letter of support to the victim and called her a “warrior.” Signatures are approaching one million people online urging that Judge Persky be recalled from office. Thankfully, the District Attorney of the county where the crime occurred still supports the judge and said that he would not appeal the sentence because the judge followed the law. The probation department also recommended local custody and probation for the defendant. None of that affects the hordes calling for the judge’s head.
This morning several judges at breakfast were ready to disown Judge Persky for making the judiciary look bad. While we, as judges, think we are admired and respected, there is always an undercurrent of hostility that erupts when a judge’s publicized decision is heavily criticized. It is much easier for a judge to give prosecutors what they want, in this case, state prison. Judge Persky gained only his self respect by bucking popular sentiment.
We have a good retirement system in California for judges as well as a lucrative salary of approximately $200,000 per year. As judges are naturally cautious, the threat of losing one’s job is terrifying, especially over a self-inflicted wound such as a sentencing. The legal community is not looking to hire an ex-judge, especially one who has been recalled.
A public uproar over a sentence causes other judges to become nervous about sticking their necks out and sentencing outside the mainstream. Judges worry that they may be recalled, too. Nobody considers the chilling effect this Stanford rape case will create. Judges shouldn’t have to worry about losing their jobs if they make an unpopular decision. I can guarantee you that in the next few years no judge in California will give probation to anyone in a rape case, even if it might be the right thing to do.
The saga of the under-sentenced defendant in the Brock Turner case continues. As I entered the building today, I was stopped by another judge. “I am shocked that [so many of] our colleagues felt the decision was wrong, especially as we don’t know the details about the case. How can fellow judges opine about a case when they don’t know all the facts?”
I predict that ultimately Judge Persky will be recalled from office. A law professor from Stanford is leading the recall crusade. Other attempts to recall judges have failed because there has not been a strong and identifiable advocate for the rape victim capable of rallying crowds. Here there is a convergence of strong public outcry, a growing recognition of the problem of campus sexual assaults, and a capable leader of a movement. This unique chemistry does not bode well for the judge.
Judge Persky does not have an army of advocates. Judges who want to speak up on his behalf don’t have an acceptable vehicle and are terrified of the CJP coming after them. I am rationalizing not getting involved because I don’t know the accused judge. But would I get involved if the judge were a friend? Would I put my career on the line? I hope that I would, but I’m not sure.
It’s vexing for a judge to figure out how much prison time is enough. A judge in my courthouse recently had a case in which a twenty-one-year-old with no criminal record committed eight robberies with a gun in one month. He was facing a maximum of sixty-two years in prison to be served at 85 percent. The prosecutor wanted around fifty years. At 85 percent, this defendant would be released from prison when he was sixty-three years old. Should this defendant spend the majority of his life in prison? How does that compare with someone who kills another while driving drunk and gets released in five to ten years at most? How should an appropriate sentence be determined? When this question was presented to a group of judges at lunch, their opinions were all over the board. Can one say that a sentence of fifteen years for eight robberies will make someone more likely to re-offend than a sentence of fifty years? Shouldn’t our sentencing laws be based on concrete statistics about the likelihood of re-offense?
No diary next week. Vacation.
In sex cases especially, the offer made by the prosecution before trial can be lower than what they ask for after conviction. This is a tricky area of the law. A defendant should never be punished for exercising his constitutional right to go to trial. Sentences are usually higher, though, when a defendant is convicted at trial. Why does this happen? First, victims in sex cases, gang cases, and other types of crimes rarely want to testify. It is embarrassing, nerve-wracking, time-consuming, and may subject witnesses to retaliation when the trial is over. Prosecutors often try to spare witnesses the trauma of testifying by offering to settle a case early for a reduced amount of time. If a defendant declines the offer and the trial proceeds, things can change. Witnesses may be compelled to come to court, sometimes from long distances, to tell their stories. Facts come out during a trial that were not known. A witness may come across more credible than was first believed. The defendant may put on false alibi witnesses. A defendant may take the witness stand and lie. All these factors can change the position of the prosecutor, defense attorney, and judge as to what an offense should cost an offender.
If a defendant accepts responsibility early, the law says a judge should consider that fact in whether to reduce the punishment. That’s another reason why lesser sentences are sometimes offered in the beginning. A defendant may tell the police when first arrested, “I messed up. I am completely to blame. I am very sorry.” While words of apology won’t get a defendant out of a conviction and jail time for serious crimes, they can have an impact on reducing a sentence. Another wrinkle occurs when a defendant hires an attorney.
Private attorneys may be given reasonable offers, but some don’t encourage their clients to plead right away. Earning the client’s fee may be part of an attorney’s calculus. If the case settles immediately, how can she justify the fee? Yet, as time passes, the offer may go up as the prosecutor learns more about the case. The attorney then asks me to get the original offer back, but often it’s out of my control.
I spent the afternoon signing search warrants. Police officers need to write complicated warrants to get records from Facebook, Twitter, and other internet companies. Writing search warrants is an art that few police officers perform well. Warrants may be ten to twenty pages of dense writing describing an investigation, and why the police officer writing the warrant believes that incriminating evidence will be found at a location or on a person. The same skilled officers are used over and over to prepare the warrants. Most likely, they majored in English or have an academic background.
Insurance and real estate fraud, identity theft, and internet schemes require police officers to understand complex financial transactions and have a desire to investigate them. Some judges will do anything to avoid a “paper case.” The same thing happens with police officers. There are not enough officers with the necessary skills to investigate financial crimes. Car chases and robberies are easier to investigate because the facts are straightforward.