Aaron Persky offered a wide range of justifications for his lenient sentencing of Brock Turner, who sexually assaulted an unconscious woman
The judge who ruled that former Stanford student Brock Turner should not spend time in prison for sexually assaulting an unconscious woman offered a wide range of justifications for his lenient sentencing.
The Guardian which was in the courtroom on 2 June when Judge Aaron Persky announced his sentence of onlysix months in county jail is now publishing the full text of his controversial decision.
As I indicated, I will announce a tentative, or indicated, sentence and then give counsel a chance to respond. And as Im sure everyone in the court can appreciate and as was stated several times today, it is a difficult decision. And I just want to, before I give my tentative decision, read something from [Janes] statement, which I think is appropriate actually, two things from her statement.
She gave a very eloquent statement today on the record, which was a briefer version of what was submitted to the Court.
Let me just say for the record that I have reviewed everything, including the sentencing memorandum, the probation report, the attachments to the probation report, and the respective sentencing memoranda.
And so [Jane] wrote in her written statement, [as read] Ruin a life, one life, yours. You forgot about mine. Let me rephrase for you. I want to show people that one night of drinking can ruin two lives you and me. You are the cause; I am the effect. You have dragged me through this hell with you, dipped me back into that night again and again. You knocked down both our towers. I collapsed at the same time you did. Your damage was concrete: Stripped of titles, degrees, enrollment. My damage was internal, unseen. I carry it with me. You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice, until today.
And then later on in her written statement, she writes, [as read] If you think I was spared, came out unscathed, that today I ride off into the sunset while you suffer the greatest blow, you are mistaken. Nobody wins. We have all been devastated. We have all been trying to find some meaning in all of this suffering.
And here I think this is relevant to the to the sentencing decision she writes, [as read] You should have never done this to me. Secondly, you should never have made me fight so long to tell you you should never have done this to me. But here we are. The damage is done. No one can undo it. And now we both have a choice. We can let this destroy us. I can remain angry and hurt, and you can be in denial. Or we can face it head on: I accept the pain; you accept the punishment; and we move on.
So, as she writes, the damage is done. The role of the Court at sentencing is to essentially follow the roadmap that our system of criminal justice sets out for the Court in sentencing decisions. Its not completely an unbridled discretion. It is constrained by factors that are contained in the Rules of Court. And so Ive tried do that to the best of my ability. And my tentative decision is to grant probation, as recommended by the Adult Probation Department, with the defendant to serve six months in county jail and to comply with the recommendations of probation as contained in the report, as will be slightly modified.
I understand that as I read that [Janes] life has been devastated by these events, by the not only the incidents that happened, but the the criminal process has had such a debilitating impact on peoples lives, most notably [Jane] and her sister.
And, also, the one other factor, of course, is the media attention that has been given to this case, which compounds the difficulties that participants in the criminal process face. So I acknowledge that devastation. And and to me, the not only the the incident, but the criminal proceedings preliminary hearing, trial, and the media attention given to this case has has in a in a in a way sort of poisoned the lives of the people that have been affected by the defendants actions.
And in my decision to grant probation, the question that I have to ask myself, again, consistent with those Rules of Court, is: Is state prison for this defendant an antidote to that poison? Is incarceration in state prison the right answer for the poisoning of [Janes] life?
And trying to balance the factors in the Rules of Court, I conclude that it is not and that justice would best be served, ultimately, with a grant of probation. Let let me go through the Rules of Court, because there is a limitation on probation eligibility, and thats due to the charge of Penal Code section 220. And pursuant to Penal Code section 1203.065, this is a case where probation is prohibited except in unusual cases where the interest of justice would best be served. And in this case, the Court is directed to apply the criteria in Rule 4.413(c) to evaluate whether the statutory limitation on probation is overcome.
And so one criteria which was mentioned in the probation officers recommendation related to 4.413(c)(1)(A), which states, [as read] The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation.
And the probation officer alluded to, I believe, the fact that alcohol was present and concluded that this would be a basis for overcoming the statutory prohibition of probation.
Im not relying on that circumstance. I think an argument can be made to that effect if you had a data set of violations of Penal Code section 220(a). My data set is small, even though I used to be a prosecutor and Ive been on the bench for a while. But that data set sometimes involves defendants who have no alcohol in their system, and the argument can be made that its more morally culpable for someone with no alcohol in their system to commit an offense like that than with someone who was legally intoxicated at the rate of .16 or so.
But it requires the the facts or circumstances be substantially less serious than the circumstances typically present in those types of cases. And Im not sure that it really reaches the in this case that level of substantially less serious, and Im not relying on it.
What I am relying on to overcome or at least consider probation in this case is Rule 4.413(c)(2)(C), which is where a defendant is youthful and has no significant record of prior criminal offenses. So when that is the case and that is the case here with Mr. Turner it allows the Court to further explore, under Rule of Court 4.414, whether probation should be granted or denied.
And so I have considered all the factors related in that rule, and Im just going to go through them.
4.414(a) relates to facts relating to the crime. The first one is similar to the one I just discussed in Rule 4.413, which talks about the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime.
So I think there is some weight should be given to the fact that a defendant who is, albeit voluntarily, intoxicated versus a defendant who commits an assault with intent to commit rape, a completely sober defendant, there is less moral culpability attached to the defendant who is legally intoxicated. Thats as a comparative measure. But I dont attach very much weight to that.
The second factor is whether the defendant was armed with or used a weapon. Thats not applicable.
The third factor is the vulnerability of the victim. And the victim in this case was extremely vulnerable. Thats an element of the crime with respect to Counts 2 and 3, but not with respect to Count 1. So I have considered that.
Whether the defendant inflicted physical or emotional injury. And as weve heard today, as I heard at trial, there was both physical and devastating emotional injury inflicted on the victim. That weighs, obviously, in favor of denying probation.
Second fifth, degree of monetary loss to the victim is not really applicable. Number six, the defendant was an active participant in the crime. That would weigh in favor of denying probation. Seven, whether the crime was committed because of an unusual circumstance, such as great provocation which was unlikely to occur. Not applicable in my mind.
Eight, whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant. And this was not Mr. Turners actions on that night did not demonstrate criminal sophistication.
Number nine, whether the defendant took advantage of a position of trust or confidence to commit the crime. I dont believe that was present.
The next the (b) factors in that Rule of Court Ill just go through those. The first is prior record of criminal conduct, whether as an adult or juvenile, including the recency and frequency of prior crimes and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct.
Thats favorable for the defendant. Theres no criminal convictions. The People have presented some evidence of, first of all, the pending minor-in-possession case, which I have considered, as well as communications involving recreational drug use, even a video showing recreational drug use. But I dont on balance, I dont find that enough to negate the absence of any criminal convictions.
And, also, I have considered the character letters that have been provided by Mr. Turners friends, family, which indicate a period of, essentially, good behavior. The second factor is prior performance on probation or parole and present probation or parole status. That is not applicable.
The third factor is a willingness to comply with the terms of probation. I find that to be favorable, as expressed to the probation officer and relayed in the report. I think there will be willingness of Mr. Turner to comply.
The fourth is the ability to comply with the reasonable terms of probation, as indicated by his age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors. I think that is favorable to Mr. Turner. I think he will be able to comply with the recommended terms of probation.
Number five is the likely effect of imprisonment on the defendant and his or her dependants. Obviously, a prison sentence would have a severe impact on him. And that may be true in any case. I think its probably more true with a youthful offender sentenced to state prison at a at a young age.
Number six are the adverse collateral consequences on the defendants life resulting from the felony conviction. And those are severe. And theyre severe in a couple of ways: One, with respect to the Penal Code section 290 registration that hell be subject to for life; and, secondly, with respect to the media attention thats been given to the case, it has not only impacted the victim in this case, but also Mr. Turner. Where, in certain cases, there is no publicity, then the collateral consequence on those on the defendants life can be minimized.
And so here, we have, I think, significant collateral consequences that have to be considered. And I think [Jane] made a good point, which is, well, if you had someone who wasnt in the fortunate circumstances that Mr. Turner had found himself in his youth, that they shouldnt it shouldnt count against them.
But the I I think you have to take the whole picture in terms of what impact imprisonment has on a specific individuals life. And the impact statements that have been or the, really, character letters that have been submitted do show a huge collateral consequence for Mr. Turner based on the conviction.
Number seven is whether the defendant is remorseful. And thats maybe one of the most conflicted and difficult issues in this case. Because Mr. Turner came before us today and said he was genuinely sorry for all the pain that he has caused to [Jane] and her family. And I think that is a genuine feeling of remorse.
[Jane] has stated that he hasnt really taken responsibility for his conduct. And I think at one point she basically wrote or said that He he just doesnt get it.
And so you have Mr. Turner expressing remorse, which I think, subjectively, is genuine, and [Jane] not seeing that as a genuine expression of remorse because he never says, I did this. I knew how drunk you were. I knew how out of it you were, and I did it anyway. And that I dont think that bridge will, probably, ever be crossed.
Mr. Armstrong offered an explanation for that disconnect, which is that Mr. Turner, in his state of intoxication, sees the events in a certain way. And if he were to, just for the benefit of a lighter sentence or to pacify the Court or the public, come in at a sentencing hearing or any other time and state otherwise, which Im sure defendants do all the time, he really would be not honest. I mean, I take him at his word that, subjectively, thats his version of events.
The jury, obviously, found it to be not the sequence of events. Our criminal justice system relies on juries to evaluate facts thats why we have 12 people doing it and to come to very difficult decisions about very specific factual incidents.
And its for some people have sat through the entire trial, and Im sure theres a lot of people here who werent able to sit through the entire trial. But the trial is a search for the truth. Its an imperfect process. And theres ambiguity at each stage of the proceedings.
Once a jury renders a verdict, everybody is bound by that verdict. Everybody must accept the verdict, including Mr. Turner. But Im not convinced that his lack of complete acquiescence to the verdict should count against him with respect to an expression of remorse because I do find that his remorse is genuine.
And, finally, the factor number eight is the likelihood that if not imprisoned, the defendant will be a danger to others. I think that he will not be a danger to others. I think he has a good chance of complying with the conditions of probation. The character letters suggest that up to this point he complied with social and legal norms sort of above and beyond what normal law-abiding people do.
And, yeah, there were a lot of a lot of character letters. And there are certain things that sort of stick out. And there is one character letter from Leslie Rasmussen, who and there there were a lot of them. And so some of them were more generalized but she wrote that Brock has been a peer of mine since elementary school, and she talks about how she came to know him.
And then she writes, [as read] If I had to choose one kid I graduated with to be in the position Brock is, it would never have been him. I could name off five others that I wouldnt be surprised about. And so, to me, that just rings true as to it sort of corroborates the evidence of his character up until the night of this incident, which has been positive.
And so, for those for those evaluating those criteria in Rule 4.414, I find that both chiefly, the facts related to the defendant, which Ive talked about, which are favorable to the defendant support the decision to grant probation. And, again, its a balancing act. The advisory committee comment to Rule 4.414 is instructive. It states, [as read] The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community. Each criteria points to evidence that the likelihood of success is great or small. A single criteria will rarely be determinative. In most cases, the sentencing judge will have to balance favorable and unfavorable facts. And thats what Ive I tried to do here.
With respect to another Rule of Court that that applies, Rule of Court 4.433 are the matters to be considered at the time set for sentencing. And pursuant to my indicated sentence, Rule 4.433(b) states that [as read] If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge must identify and state circumstances that would justify imposition of one of the three authorized prison terms referred to in section 1170(b) if probation is later revoked. The circumstances identified and stated by the judge must be based on evidence admitted at the trial or other circumstances properly considered under Rule 4.420(b).
And if you go to Rule 4.420(b), it states that [as read] In exercising discretion to select one of the three authorized prison terms referred to in section 1170(h), the sentencing judge may consider circumstances in aggravation or mitigation and any other factor reasonably related to the sentencing decision.
And then it talks about where those circumstances can be obtained from the case record: Statements in aggravation or mitigation and any evidence introduced at the sentencing hearing.
The reason that Im stating this for the record is that, if Mr. Turner should violate probation, this becomes important as to what sentence should be imposed.
So I have considered the aggravating and mitigating factors that the chart attached to the probation officers report checks as an aggravating factor, that the victim was particularly vulnerable. And I believe the the at some point in the report, it notes that thats an element of the crime in Counts 2 and 3. Its not an element of the crime in Count 1. So it is an aggravating factor at least as to Count 1.
The mitigating factors that Ive considered are that the defendant, Mr. Turner, has no prior criminal record.
I have also considered the fact that he was legally intoxicated at the time of the incident. Pursuant to the evidence at trial, this does affect judgment. And as I indicated previously, its not an and, I think, as [Jane] wrote its not on excuse. But it is a factor. And I think it is a factor that, when trying to assess moral culpability in this situation, is mitigating.
And, finally, I find another factor reasonably related to the sentencing decision is the character evidence provided both at trial and in connection with this sentencing hearing the character evidence with respect to Mr. Turners past up until the point of the incident. And, in fact, there was some character evidence post-incident related to what hes been doing since the criminal proceeding has been ongoing.
So, on balance, I find that I would select the mitigated term for each of the three counts that are for which Mr. Turner has been convicted, based on those mitigating factors that I have considered. And, again, that comes into play if there is a violation of probation.
The only other comments Ill make at this time, before I let counsel comment on this indicated decision, is I would modify the probation department sex offender recommendations to comply with the case of People versus Rebulloza. And thats at I have the Cal.App. LEXIS cite. Its 2015 Cal.App. LEXIS 193. Im sure theres an updated cite. But that I would modify some of the language with respect to that. And I think that would be the only modification that I would have to the Probation Department recommendations.
But with that, let me give counsel a chance to comment on the Courts indicated sentence.