How to mit­i­gate sex­ual as­sault

The Stanford case proves again that be­ing white and ed­u­cated are the best mit­i­gat­ing fac­tors.

Los Angeles Times - - OP-ED - By Mar­cos Bar­bery here are two ways Mar­cos Bar­bery served as a ju­ve­nile mit­i­ga­tion spe­cial­ist at Or­leans Public De­fend­ers from April 2014 to July 2015. He is at work on a doc­u­men­tary film on

Tto de­fend a client charged with rape: lit­i­gate and mit­i­gate. The first is the stuff you see lawyers do on TV, which sel­dom hap­pens in real life, es­pe­cially for clients who are poor and black. The se­cond has be­come in­creas­ingly im­por­tant in an age when few crim­i­nal cases go to trial. I’m not an at­tor­ney; I’m a mit­i­ga­tor. Mit­i­ga­tion isn't about ar­gu­ing guilt or in­no­cence. It's about di­min­ish­ing a client's cul­pa­bil­ity.

The pri­vate de­fense team hired by Brock Turner when the for­mer Stanford Univer­sity swimmer was ac­cused of rape, lit­i­gated and mit­i­gated at the same time. The out­come for their client was ex­tra­or­di­nary: Turner was found guilty of three felony counts of sex­ual as­sault but at sen­tenc­ing, he got off easy. If like me you’ve worked in public de­fense, the out­come of Turner's case is also heart-wrench­ing. It proves what we all know: In Amer­ica's court­rooms, be­ing white and ed­u­cated are the two big­gest mit­i­gat­ing fac­tors.

Af­ter Turner lost at trial, his vic­tim read her im­pact state­ment at the sen­tenc­ing hear­ing. It was im­pas­sioned, more than 7,000 words long, and once made public, it cap­tured the na­tion’s at­ten­tion. There's noth­ing more sear­ing than hear­ing di­rectly from the vic­tim of a vi­o­lent crime. Her words were the op­po­site of mit­i­gat­ing, they were ag­gra­vat­ing — for the de­fen­dant and the en­tire crim­i­nal jus­tice sys­tem. Turner's vic­tim asked, “If a first-time of­fender from an un­der­priv­i­leged back­ground was ac­cused of three felonies and dis­played no ac­count­abil­ity for his ac­tions other than drink­ing, what would his sen­tence be?”

It's an im­por­tant ques­tion. In the last week, as many as 1 mil­lion peo­ple have signed pe­ti­tions de­mand­ing the re­moval of Santa Clara County Su­pe­rior Court Judge Aaron Per­sky, who sen­tenced Turner to a mere six months in jail. The out­rage stems from the dis­pro­por­tion of the dam­age done by Turner — as de­scribed by his vic­tim — and the light jail sen­tence. Yet it’s also driven by an­other in­jus­tice: How much more se­vere the sen­tence would have been if Turner’s skin were sev­eral shades darker, if his par­ents had been un­able to post $150,000 bond or hire a de­fense team that man­aged to lose at trial but win at sen­tenc­ing. If be­ing white and ed­u­cated in Amer­ica is mit­i­gat­ing, then be­ing black and un­e­d­u­cated is ag­gra­vat­ing.

I have never helped de­fend a client who was white, older than 17 or born into priv­i­lege. Most of the ju­ve­niles I've worked for are now in prison. How would a judge sen­tence a first-time of­fender from an un­der­priv­i­leged back­ground who was guilty of felony sex­ual as­sault? Here's an ex­am­ple: I mit­i­gated a case on be­half of a boy charged as an adult with two counts of rape (in most of the U.S., a child as young as 14 ar­rested for rape is au­to­mat­i­cally charged as an adult). The charges car­ried a sen­tence of more than a 100 years in prison. He agreed to a deal; had he gone to trial and been con­victed, he was all but guar­an­teed to die in prison. For Turner, even at 19, youth was a mit­i­gat­ing fac­tor. For kids grow­ing up in public hous­ing sur­rounded by vi­o­lence and ac­cused of a heinous crime, youth is no longer a mit­i­gat­ing fac­tor — it is a sign of de­prav­ity.

Far from Palo Alto, in cities like New Or­leans, due to ane­mic state public de­fender fund­ing, an un­der­priv­i­leged Turner prob­a­bly would have sat in jail for months be­fore see­ing a lawyer. It's ex­tremely un­likely he would have seen trial. For poor de­fen­dants of color, the chances of los­ing at trial are as­tro­nom­i­cal. And sim­ply by virtue of re­quest­ing a jury trial, and los­ing, the risk of re­ceiv­ing the harsh­est sen­tence spikes. We call this the “trial tax.” Public de­fend­ers of­ten use the term with clients to pref­ace the state's plea deal — what­ever is of­fered in ex­change for the de­fen­dant's ad­mis­sion of guilt, po­ten­tially to a lesser charge, and as a re­ward for re­mov­ing the case from the court's docket. The pre­cise of­fer depends on the facts of the case.

Sex­ual as­sault is sex­ual as­sault ex­cept if you're de­fend­ing the ac­cused. A de­fense theory is built by weigh­ing good facts against the bad. For Turner, there wasn't just one wit­ness, there were two. Bad fact. The wit­nesses saw a young man as­sault­ing an un­con­scious wo­man and con­fronted the as­sailant, who fled the scene. The wit­nesses gave chase, tack­led and pinned down the as­sailant with­out ever los­ing sight of him. Af­ter the po­lice ar­rived, the young man they took into cus­tody was iden­ti­fied as Turner. All bad facts.

But Turner's de­fense had a few things go­ing for it. His vic­tim had no rec­ol­lec­tion of the crime. She had blacked out. Good fact. The vic­tim had a boyfriend. Per­haps she felt guilty for “cheat­ing” on him, and hence had a mo­tive for cry­ing rape. For the de­fense, the boyfriend was a good fact. Both par­ties were drunk. Also good. No one knew when the vic­tim passed out. Good again. It could have been in the fi­nal mil­lisec­onds of what Turner's father later de­scribed as his son's “20 min­utes of ac­tion.” At trial, the bad out­weighed the good, the de­fense failed to com­pel the jury, but all along the lawyers were in­tro­duc­ing mit­i­ga­tion about their client to the judge.

In the end, the most im­por­tant fact for the vic­tim was that Turner, who didn't know her but had been in­side her, re­fused to ad­mit his guilt. Had Turner been black, no doubt his lack of re­morse would've sealed his fate. The gavel would've slammed down, and all you'd have heard was his mother wail­ing from the gallery af­ter the judge im­posed the max­i­mum sen­tence. Never mind that re­morse is an ad­mis­sion of guilt, and it might undo your chance to ap­peal.

In her im­pact state­ment, Turner's vic­tim re­peat­edly re­ferred to a pro­ba­tion of­fi­cer's re­port, the state's sup­pos­edly un­bi­ased eval­u­a­tion of the de­fen­dant and its sen­tenc­ing rec­om­men­da­tion. The re­port cap­tured Turner's in­her­ent di­min­ished cul­pa­bil­ity. The of­fi­cer who eval­u­ated him didn't talk to a poor black teenager in jail. Turner was white, well-ed­u­cated, squeaky clean look­ing. He came from a good home, got into a good school.

At sen­tenc­ing, the de­fense theory was surely that the judge, a for­mer Stanford ath­lete, would see some­thing of him­self in Turner, some­thing he wouldn't have seen if Turner had a dif­fer­ent skin color and a dif­fer­ent life history: a young, pre­cious hu­man be­ing, for whom prison and all it de­stroys, just wouldn't be ap­pro­pri­ate.

A col­league asked me if I would like to see Turner do more time, or my for­mer clients do less, be­cause we can't have it both ways.To which I re­sponded, "Why not?" mit­i­ga­tion.

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