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On the Orlando Massacre and Brock Turner’s Sentence

Fairfax criminal defense attorney on a massacre and a sexual assault

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If my blog reacted to every extreme act of violence and every controversy over court cases, my blog would cover nothing else.

The Western press repeatedly focuses on violence against Westerners — and in particular massacres — more than against those in the rest of the world, and on court cases involving privileged people or cases that are already getting heavy news coverage, and I am not interested in supporting that trend, but will at least provide my following brief thoughts that might help others form their opinions on the Orlando massacre, and on Brock Turner’s sentence:

What I will say very briefly about Omar Mateen’s Orlando massacre this past weekend is:

  • I decry all violence, and pray for all victims of violence, whether I publicly address their tragedies or not.
  • Calls from ISIS for attacks inside Western countries are not new.
  • Jumping to conclusions about Omar Mateen’s motives serves little benefit. He was a United States citizen who perpetrated a massacre at a gay nightclub, and himself reportedly frequented the same nightclub and used gay dating computer apps. He likely was a complex man with complex motives for the massacre.

As to Brock Turner, here is some food for thought in helping people to form their views on his sentence:

  • Turner was convicted on March 30, 2016, of  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. Whether or not it matters that Turner was convicted of using an object other than his penis to penetrate his victim, he was neither tried nor convicted for penile penetrationHis active jail sentence is six months.
  • His sentencing judge, Aaron Persky, had many hours of trial evidence and sentencing hearing information available before issuing a sentence two months after Turner’s March 30, 2016 conviction. Here are some of the court documents and sentencing documents in the case. A transcript of the trial and sentencing has not yet been released, which would be great to have to help form viewpoints about Turner’s sentencing.
  • Had Judge Persky wanted to fly under the radar, he would have given Turner a lengthier prison sentence. Persky was intelligent enough to have been admitted to Stanford Law School, and experienced enough with sexual assault cases, having for many years prosecuted such cases. He likely knew the social media and societal outrage that would result from his sentence, and arguably had the courage, independence, and seriousness about his oath of office to have nevertheless issued the sentence that he did.
  • San Jose, California, public defender lawyer Sajid A. Khan says many “colleagues in my office that appear before Judge Persky believe that a public defender client who wasn’t white or affluent would have received the same type of sentence from him.” It certainly would be tragic for trial judges to seek a sense of sentencing fairness through uniformity, by swinging to the side of issuing harsh sentences across the board for felony convictions for first time offenders.
  • Turner’s probation agent sought leniency for his drunkenness. How much should that have been a factor in his favor? Whenever my criminal defense client was drunk at the time of an alleged assault, I try using that to his or her favor both as to the guilt-innocence and sentencing phases of the defense.
  • The wisdom and fairness of a criminal sentence should not look only at one aspect of the sentence, but the entire sentence, which involves more than simply the incarceration period. Sentencing is supposed to address punishment, deterrence and rehabilitation.  Will Turner’s sentence be seen as a greenlight for others to commit sexual assault at will? As some public defender lawyers have pointed out, Turner’s sentence is more than merely his six months active jail sentence, but also is about his probation period, lengthy suspended sentence that can be imposed if he is found in violation of probation in the future, and obligation to register as a sex offender. Additionally, how many employers will wish to hire a convicted violent felon?
  • I am not opposed to Turner’s sentence not having been stiffer, and simply want judges to sentence each defendant on their own merits and past behavior, without regard to social privilege, gender, race, religion, national origin, nor discrimination about the victim.
  • Overincarceration is not the solution to the complexities of society’s ills. When convicts complete lengthy prison sentences, they are going to face formidable hurdles to adjusting to life on the streets. We need to continue to get to the root of criminal behavior — and help long-term convicts adjust to their prison releases, starting long before their releases — rather than simply imposing lengthy prison sentences.
  • Of little consolation to Turner’s victim may be that she will be able to sue and bankrupt Turner now that he has been convicted, just as Nicole Brown Simpson’s family was able to bankrupt O.J. Simpson through the huge civil jury verdict over her killing.
  • Had Turner been convicted in federal court, the prosecution would have been able to challenge his sentence on appeal. I do not know whether California law allows that.

The outcry over Brock Turner’s sentence continues loud and clear. Judges must not let that outcry sway them to impose harsher sentences.