The assault on due process

There is an awful lot not to like about Education Secretary Betty DeVos. She wants to get rid of public education. She caters to the for-profit schools that rip off their students. She is opposed to student loan forgiveness.

But, please, her proposed rule changes to the ways schools handle alleged incidents of sexual assault are a good thing.

Colleges are required under Title IX to foster an environment free from sexual, racial and ethnic discrimination and harassment.The rule change under fire from certain quarters is the requirement that the accused is afforded the right to question the accuser.

Yikes! That's certainly a radical idea, isn't it. Being able to confront your accuser. Seems to me there's something about that right to confrontation in the Sixth Amendment. And, you know, that little matter known as due process.

But should you attempt to defend the proposed rule changes, you will quickly be under attack from the mob. They will tell you that these campus hearings aren't criminal matters and that due process doesn't apply. They will accuse you of perpetuating the myth that men are falsely accused of sexual assault.

While these hearings aren't criminal in nature, they are quasi-criminal and they do carry consequences if the panel, arbitrator or judge finds the accused liable. Students can be expelled, suspended or placed on academic probation. Each of those outcomes is a restriction on the student's liberty. Even if we aren't talking about the accused going to jail or being convicted in a court of law, the accused still faces sanctions. And when one party attempts to limit the freedom of another, the concept of due process comes into play.

We conclude that these cases distill to a set of core principles applicable to cases where the accused student faces a severe penalty and the school's determination turns on the complaining witness's credibility. First, the accused student is entitled to "a process by which the respondent may question, if even indirectly, the complainant." Second, the complaining witness must be before the finder of fact either physically or through videoconference or like technology to enable the finder of fact to assess the complaining witness's credibility in responding to its own questions or those proposed by the accused student. 

-- John Doe v. Claremont McKenna College

I get it. Sexual assault is a frightening thing and having to recount details of an alleged assault can be traumatic for the person making the accusation. But it's not a cakewalk for the accused. There is a lot on the line for both parties.

And if a school tribunal wishes to lower the burden of proof on the accuser, then the accused needs due process more than ever. And if that means the accuser has to answer questions from the accused, or his representative, then so be it. If the problem is having the accused asking the questions, then you must afford the accused the right to representation.

Now I'm not going to get into the veracity of the claims or whether the definition of sexual assault in that environment is too loose. I will say, however, that a good many of these claims result from incidents in which one or both parties consumed alcohol and the presence of alcohol (or other intoxicating substances) can bring both parties' accounts of a situation under scrutiny.

Ultimately the opposition of some to due process results from one subsuming the workings of the law to his or her political theory or ideology. Due process is the manner by which we attempt to bisect those tendencies. Yes, it's harder to prosecute when you have to afford the accused due process, but that's the way it should be when one's liberty interest is at stake.

Those who oppose due process in this environment fear that in the crucible of cross-examination that the narrative they so wish to promote will not hold up.

h/t KC Johnson

Update: Mob rule

The mob in Santa Clara County spoke loud and clear on Tuesday when they voted to recall Judge Aaron Persky because they thought the sentence he handed out to Stanford swimmer Brock Turner was too light.

There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.

In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.

Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?

The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.

One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.

Who wants an independent judiciary anyway?

Today is judgment day for Judge Aaron Persky who gained renown when he sentenced Stanford swimmer Brock Turner to six months in jail and probation for sexually assaulting an unconscious woman.

The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.

She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.

Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.

U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.

In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.

Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.

Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.

But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.

The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.

Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.

Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.

The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.

“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the anti-recall leaders. “He did it regardless of race or ethnicity.”

We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.

Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.

The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.

Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.

Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.

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.

An attack on discretion

In theory, a judge should make his or her decisions on the bench without regard to politics. In theory, a judge should be shielded from politics in order to make the best decision in a given case - not the popular decision.

Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.

We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.

Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.

Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.

Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.

Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.

Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.

There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.

Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.

Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.

A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.

An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.

State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.

Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.

As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.

What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.

Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.