Wednesday, December 13, 2017

What happens when a law prof ventures outside the ivory tower

Over a year ago I wrote about the hornets nest that opened around Judge Aaron Persky in Santa Clara, California. You may recall that he presided over the trial of a Stanford swimmer accused of sexually assaulting an unconscious woman behind a dumpster.

The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.

Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.

As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.

Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?

The answer is he never did.

Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.

As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.

It's that simple.

The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.

It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.

When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.

The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.

Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.

Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.


tgt said...

You conveniently ignored the actual complaints about the sentence. It isn't simply that people think it is too lenient. The issue is that the judge claimed false things and inappropriate things as support for the leniency.

If a judge claimed a defendant had shown no contrition during a sentencing, when he had been nothing but contrite, you'd jump all over that judge, as you should. You'd absolutely rip someone a new one for claiming that since the sentence was within the legal range, it was appropriate.

Here, the judge invented contrition out of whole cloth. He misstated the facts of the case in determining the sentence. How is that not inappropriate?

Yes, as a defense attorney, you want your clients to have lesser sentences, but how and why a judge determines a sentence matters.

Paul B. Kennedy said...

I get that you aren't happy with the sentence imposed by the judge. But just because you disagree with the judge's decision doesn't mean that the judge did anything improper.

In California, as in most states, when the judge determines punishment, the judge has full discretion to sentence the defendant within the range of punishment defined by the state legislature. There is no test to determine the appropriate sentence. There is no requirement that a defendant show remorse -- particularly if that defendant maintains his innocence and appeals the verdict.

The system isn't designed to appease the victim, the family of the victim or any member of the actual populace. I understand the victim may very well not be satisfied with the sentence, but let's be honest, whether Mr. Turner was given probation or sent to prison for 14 years, her scars will remain. There is nothing the legal system can do to help her get over what happened unless she wants to sue him in civil court.

In the federal courts it's different. There such factors as accepting responsibility and demonstrating remorse can affect a sentence based on the federal sentencing guidelines. Those guidelines, however, have hamstrung judges in criminal cases and allow them very little discretion in determining an appropriate sentence.

Unknown said...

I stand by my statements.

I have made no claims that the victim must be satisfied, that the defendant, must be remorseful, or that there should be hard and fast rules for sentencing. I don't see them from this academic, either. What I have claimed is that when a judge claims clearly false things in determining a sentence, they should not be allowed to continue as a judge.

I'm not sure why this is in question. Say there's a kid convicted of marijuana possession with possible sentences from probation to 25 years. Say this was out of character for the kid. He's a great student and takes care of his elderly, disabled grandparents and his underage siblings. No evidence suggests this kid had ever previously even touched a drug. Say that judge gave the kid the max because he was a lazy stoner. Would you believe that the judge should continue?

That the sentence is legal does not mean it's appropriate. Judges are subject to ethical rules as well as legal requirements. If the judge sees remorse in a defendant who is open in his remorselessness, he is, at best, unable to judge reality. At worst, he is a bad actor. In neither case should he continue.

Your blanket defense of the judge in this case is inappropriate.

Paul B. Kennedy said...

Ordinarily I would not print a comment from someone who signed on as "Unknown." However, I believe in open debate and even though I think you're coming at this wrong, I do respect your opinion.

Were an appeals court to review the sentencing, the only thing they would look at was whether or not the sentence was within the range of punishment set out by the legislature.

Your hypo is a comparison of oranges and apples. There is a great deal of difference in arguing the appropriateness of a sentence if a non-violent offender is sent to prison for 25 years. Of course we had this problem with the racially motivated sentence enhancements for possession of crack cocaine versus possession of powder cocaine.