Biden’s letter was very eloquent and talks about being a RESPONSIBLE BYSTANDER. That’s a concept that needs to be better internalized among all people. It would help in many, many situations, where folks feel “anonymous” and do things that they feel they can “get away with.”
Was anyone ever prosecuted for providing Turner with alcohol? IIRC, the police report names the friend who accompanied him to the party and handed him beer. It’s not clear to me if that man was over 21 or not though.
Wow @pittsburghscribe if it is true that the judge knew he was lying about being this naive drinker and still gave him such a minimal sentence, that does not speak well for him.
I am sure judges know that defendants are spinning things to present themselves in the best possible light, but outright lying? He outright states that he “never really experienced celebrating or partying that involved alcohol”. If a judge knew that was a complete fabrication, wouldn’t that suggest that his version of the facts in the case were also not true and therefore mitigating circumstances to reduce the sentence should not apply?
The judge may not have believed his statement, but still seems to give the kid the benefit of the doubt big time.
I am curious about this, too. It is my understanding that the appeals court cannot uphold the conviction but reverse/revise the sentence. I think the only way that Brock could be given a longer sentence is if the appeals court reverses the conviction and Brock is retried; if he is again convicted, then the judge could impose a different sentence.
Lawyers?
I was curious about this, so I just looked this up. (Slow day at work). The question is answered by People v. Vizcarra, 236 Cal. App. 4th 422, 430-32 (2015), although the application of the case here is not entirely clear.
In that case, the Court of Appeal said that generally, when a defendant successfully challenges his conviction on appeal and secures a new trial, the sentence after the second trial cannot be greater than the sentence that was imposed after the first trial. However, there is an exception to that rule when the original trial court imposed an “unauthorized sentence.” “Such a sentence is subject to being set aside judicially and is no bar to the imposition of a [proper sentence] … even though it is more severe than the original unauthorized pronouncement.”
For the exception to apply here, the prosecution would have to prove that the sentence was not authorized by law, and was an abuse of the court’s discretion. That would be very, very difficult to prove. In all the commentary on this issue, I haven’t seen any legal analysis suggesting that the sentence was outside the court’s discretion, as a legal matter.
So, the bottom line is, without more information and extensive legal analysis, it is impossible to say at this point. His lawyers clearly think the exception does not apply.
ETA: just to make clear, the previous poster’s assumption is NOT correct as a general rule; if the defendant gets the conviction overturned, is retried and re-convicted, generally the new sentence CANNOT be longer than the original sentence, unless the exception applies.
“. I guess these days I see both “gentlemen” and “damsels” as non-gendered ideas.”
The word mensch seems to work!
I only wish Joe Biden would have also put one sentence in about campus drinking culture. Just one. So many of the complaints to the colleges and universities would not happen if society didn’t turn a blind eye to house parties, frat parties, tailgate parties, pre-gaming in the dorm rooms. Sigh.
Maybe he didn’t mention it because rape is a completely separate issue from binge drinking, even if there is some overlap among those who binge drink and those who rape. imho.
adding: Turner got drunk and raped someone. Not every drunk guy at that party raped someone. At least a couple tried to help the survivor. Some people are caring and helpful good Samaritans while drunk.
Is it the binge drinkers who are the rapists, or is that environments with lots of binge drinking tend to be “victim-rich” environments for rapists to find easy victims in?
I don’t really care to be honest. I think we’re kidding ourselves as a society if we don’t think binge drinking isn’t a factor on college campuses. We’re kidding ourselves if we don’t think college assaults and rapes aren’t many, many, many times alcohol fueled. Maybe it’s less of a factor with 18-25 year olds living on their own, working and not attending colleges, but if the popular 1 in 5 on campuses, which still gets brought up time and time and time again then it is neglectful, in my opinion, not to address the drinking culture. Honestly I don’t think anyone can say with a serious face that this assault or Vanderbilt, or some of the anecdotal stories in Krakatau’s book would have without question occurred if one or both of all of the participants were not drunk. Maybe or maybe not. Will rapes still occur on college campus…probably because there are rapists in the world but will all the assaults and rapes occur…I don’t think so.
I do agree with you binge drinking needs to be addressed.
I think binge drinking on campus is an important topic, as it does lead to a lot of problems, sexual assault is a big one, but so are things like drunk driving deaths (for schools where kids drive), alcohol poisoning, fatal falls and injuries, and assault and battery cases.
That said, I think Joe Biden was smart not to put that in the letter, because it could come off as him telling the victim that if she had drank responsibly (or not at all), this wouldn’t have happened, the context of saying that could cause difficulties. Not to mention that it also could be construed as explaining why turned did what he did, which is equally problematic (if I hear one more time that someone did something because they were drunk, I’ll scream…alcohol doesn’t make you do anything, it basically lets out what is already there, if Turner was willing to do what he did to a comatose girl all the booze did was loosen the inhibitions and let his ‘true self’ out…put it this way, the drunk kid who stopped to help had been drinking, was pretty wasted,so if booze makes you do it, why didn’t he join in?). If people say stupid or hateful things when they are drunk, it is because they have those things inside themselves, if someone like Mel Gibson goes on a drunken rant against Jews, it means he harbored anti semtic feelings, when sober he knew it wouldn’t go over well, but when drunk, it came out.
I am glad Biden wrote that letter, hopefully it will encourage others who are victims to come forward. I have some personal experience with the victims of sexual abuse through some groups I helped financially sponsor and volunteered with, and personally I suspect the percent of reported cases is way lower than even the low numbers already out there, based only on what I saw and heard. At the very least, maybe it will encourage someone to come forward after seeing what a brainless moron like Pesky seems to think of the seriousness of sexual assault, or when schools cover for athletes or students, unless we get this out of the shadows and those evil or stupid enough to commit these kind of things realize they have something to fear, it will keep going on.
Another post asked if this kind of things went on in passed generations, the answer is yes, it did, but it was rarely reported. I read an article not long ago talking about sexual assault back in the ‘good old days’, they had stories of women back in the 30’s and beyond who had been assaulted sexually and even if they tried to report it, were rebuffed, it was as common at big football schools as it was at the ivy league, if what the article said was true, back then it simply lived under the blanket of the fears of the victims, who knew back then it would be covered up or if it came to light, she would be made to look like the person who was asking for it (sorry, I don’t buy that the country was all that more moral back then, it was just that the dirty laundry was hidden under a blanket of ‘public purity’ that doesn’t stand much review historically). One of the biggest changes I would love to see is laws, maybe federal civil rights laws if states refuse to take action, to charge judges who allow and lawyers who ask questions, like the defense lawyer in this case (may the San Andreas fault swallow him up), about things like what clothing the victim was wearing, what kind of makeup she was wearing,. what kind of shoes, why was she at the party in question, why was she where she was, basically trying to make the victim look guilty…I also wonder, kind of like in the civil rights era, if congress could bring federal civil rights or other charges against the perpetrator if local courts refused to act, much as they did with courts down south that refused to prosecute those lynching people and killing civil rights workers, they allowed federal action.
What I would love to know is if Pesky has any women in his family, how he faces them, whether it be daughters (if he has any), sisters in law, nieces, etc, and try and explain why he let turner off the way he did.
Going back to a hypothetical roofie rapist. Let’s say Person A roofied Person B. However, no sexual assault occurred to Person B (she blacked out and someone took care of her, got her home safely, etc). Let’s also assume the guilt of Person A is not in doubt (witnesses, video camera, etc).
I assume that’s a felony? What’s the typical sentence one might expect to serve for that, esp in CA?
Interesting if this is true. https://www.rawstory.com/2016/06/prospective-jurors-refuse-to-serve-en-masse-in-judge-aaron-perskys-court-over-rape-sentence/ (I don’t know how reputable raw story is.) It claims that 10 prospective jurors in a completely unrelated case having nothing to do with sex said they could not sit on a jury in a trial over which Judge Persky presided because of how they feel about what he did in this case.
Has something like this ever happened before?
Jonri: Do you have an opinion as to whether Persky should be removed as judge? And about public pressure? I’m sorry if I missed it if you posted it before.
Once the judge excused the first juror who said that, it is not surprising that subsequent jurors would say the same thing. It is hard to tell whether excuses to get out of jury duty are true or not.
Re: #792
Drugging someone appears to be considered a form of assault or battery.
In California, simple assault is a misdemeanor (fine up to $1,000, jail up to 6 months, or both; PC 241), as is simple battery (fine up to $2,000, jail up to 6 months; PC 243). However, if it was assault with intent to commit rape or sexual penetration, then it is a felony (2, 4, or 6 years in prison; PC 220). Note that one of Turner’s convictions was for the latter crime, although the news reports do not indicate whether he was convicted of drugging her or some other kind of assault with intent to commit rape or sexual penetration.
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=pen&codebody=&hits=20
@pizzagirl:
I believe @harvestmoon1 (?) in another post said that the penalty for giving a roofie is a seperate crime with its own sentence, so someone sentenced for giving a roofie and raping a girl would have two different sentences, I believe in all 50 states drugging someone like that is a felony, with varying penalties. The person doing that, if they found the drugs on them, would also be facing penalties for possession of a controlled substance. From what I can tell when I did some research, drugging someone like that is a kind of assault and has similar penalties.
What is really interesting is there is direct federal law for someone who drugs someone and then sexually assaults them
“In 1996, Congress passed the Drug-Induced Rape Prevention and Punishment Act, as an amendment to the Controlled Substances Act. This amendment established federal penalties of up to 20 years imprisonment and fines for anyone convicted of committing a crime of violence, including rape, by administering a controlled substance without the victim?s knowledge or consent. There are also state laws that may be used to prosecute these crimes.”
So if the girl in question had been slipped a roofie by turner (and I really wonder why in these cases law enforcement doesn’t routinely run checks for drugs in the victim, it isn’t like testing for them is outside the capability of any crime lab, they all have the ability to get those tests run or send them to where they can be run), it seems like the feds might have been able to step in and prosecute Turner, and I suspect the federal penalty has mininums the judge couldn’t overturn.
Again, I wonder if the the answer to this is federal civil rights laws that can allow them to step in and deal with someone like Turner when local law enforcement or judge decides to basically minimize the punishment.
@nottelling
I was talking to a friend of mine, who lives in Oregon but is a member of the CA bar as well. She confirmed what you said, that the only way on a retrial could Turner be given a stiffer sentence than the original one (assuming the appeals court finds reason to vacate the verdict and call for a new trial) would be if the judge used discretion he didn’t have. She told me that from what she has read about with this case, and what she knows of CA law, the judge likely was not violating his right to decide sentence, that CA as far as she knows doesn’t have absolute minimums for sexual assault like this, so likely if retried and found guilty he likely would receive the same penalty.
A question for the lawyers on here: If the appeals court calls for a new trial, could the state introduce new charges in the retrial? For example, assuming they still had blood samples from the victim, could they run a tox scan and see if she had been roofied, and if so, potentially add that charge? Or can they only retry him on the charges in the original trial (or potentially drop some of them if they decide their case is weak)?
Here’s the same story about jurors asking to be excused from Persky’s court from the Mercury News: http://www.mercurynews.com/crime-courts/ci_29997198/judge-aaron-persky-prospective-jurors-refuse-serve?utm_campaign=Echobox&utm_medium=Social&utm_source=Facebook#link_time=1465498576
And another story in the Mercury News says that Brock’s HS guidance counselor regrets her letter, "But in a statement released Wednesday by the school district, Owens said she was sorry for getting involved in the case.
“Of course, he should be held accountable,” she said, adding that she prays for the victim."
The article says Owens was one of “dozens of people who wrote to the judge on Turner’s behalf.” I wonder what story these “dozens of people” were told about Brock to get their support, and how horrified they were to read the woman’s statement.
And I, too, thought Joe Biden’s letter was wonderful – and I’m glad he didn’t focus on binge drinking because the whole point of his letter was to remove the blame from the woman.
I can see a potential juror thinking, “if I put in effort to come up with a decision on this case, and if the defendant is guilty of a felony, would that effort be mostly wasted if Judge Persky reduces the sentence to misdemeanor level?”.