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The Cruelty of Brock Turner's Defense Lawyer

The defense bar is attempting to spin the narrative about the lenient sentence given Stanford rapist Brock Turner.

The problem, it tells us, was mostly a well-meaning but white tribalist judge.  The problem decidedly was not the defense-friendly sentencing submissions made in Turner's behalf  -- or, if they were a problem, it's because they were strategically inapt and tone-deaf. That they were morally bankrupt and odious plays second fiddle in the defense view, see, e.g., here and here (if they even get a seat in the orchestra). 

Still less of a problem is defense counsel's work.  This is notwithstanding that the entire purpose of that work was to get the rapist off with a trickster acquittal  --  or, failing that, to get a non-incarceration sentence.  In the latter, the defense very nearly succeeded. Yippee!

But rather than take a victory lap for this rare, chipper outcome, the defense bar  -- politically shrewd as ever  --  smells trouble and has commenced damage control. The public might, for once, show significant interest in, and concern about, how the victim got treated in court.. Thus, while much is said about the judge, the system, white privilege, class bias, jocks, drinking, fraternities, etc., etc., next to nothing is getting said about defense counsel's treatment of the victim.

Q:  Now why would that be?
A:  Because any normal person would be shocked by it.

Not for nothing did the defense bar so forcefully seek to muzzle victims, see, e.g., the amicus briefs in Payne v. Tennessee.  Fortunately, it lost.

The unmuzzled victim in this case tells us what the rapist's lawyer did to her in the course of trying to hoodwink the jury.  It's not a pretty picture.  But it is, sadly, a representative one.

In her sentencing letter, she spells it out: 

He [the rapist under questioning by his attorney] can say whatever he wants and no one can contest it. I had no power, I had no voice, I was defenseless. My memory loss would be used against me...His attorney constantly reminded the jury, the only one we can believe is Brock, because she doesn't remember. That helplessness was traumatizing.

Instead of taking time to heal, I was taking time to recall the night in excruciating detail, in order to prepare for the attorney's questions that would be invasive, aggressive, and designed to steer me off course, to contradict myself, my sister, phrased in ways to manipulate my answers.

What?  Defense counsel would manipulate answers?  Not really seeking the truth here? Goodness gracious.

Instead of his attorney saying, Did you notice any abrasions? He said, You didn't notice any abrasions, right? This was a game of strategy, as if I could be tricked out of my own worth. The sexual assault had been so clear, but instead, here I was at the trial, answering questions [designed to distort what happened].  [Ed. note:  I list the questions below as the victim did].

Then, the victim recounts what amounted to verbal rape by the defense lawyer:

I was pummeled with narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name. After a physical assault, I was assaulted with questions designed to attack me, to say see, her facts don't line up, she's out of her mind, she's practically an alcoholic, she probably wanted to hook up, he's like an athlete right, they were both drunk, whatever, the hospital stuff she remembers is after the fact, why take it into account, Brock has a lot at stake so he's having a really hard time right now.

Yup, little Brock is having a hard time.

Ladies and gentlemen, meet your criminal defense bar at work.  This is where we are.


You don't have to be a genius to figure out what the retort is going to be:  Defense counsel was only doing his job.  That's how the system works.  Get over it.

Let's think about that.  If Kent or I were to defend the death penalty by saying, "It's part of the law.  That's how the system works.  Get over it," we would be accused, not only of moral obtuseness, but of terminal stupidity.  To say "that's how the system works" is to say absolutely nothing  --  and is instead to avoid  --  the question whether it's how the system should work.

I have argued many times, not that the client should be abandoned, but that an attorney's ethical obligations should be adjusted away from solely client-orientation and more in the direction of truth-orientation.  I shall make those arguments again in a future post, cast against the backdrop of this case.


The victim's  letter recounts her cross-examination in part as follows (emphasis added):

How old are you? How much do you weigh? What did you eat that day? Well what did you have for dinner? Who made dinner? Did you drink with dinner? No, not even water? When did you drink? How much did you drink? What container did you drink out of? Who gave you the drink? How much do you usually drink? Who dropped you off at this party? At what time? But where exactly? What were you wearing? Why were you going to this party? What' d you do when you got there? Are you sure you did that? But what time did you do that? What does this text mean? Who were you texting? When did you urinate? Where did you urinate? With whom did you urinate outside? Was your phone on silent when your sister called? Do you remember silencing it? Really because on page 53 I'd like to point out that you said it was set to ring. Did you drink in college? You said you were a party animal? How many times did you black out? Did you party at frats? Are you serious with your boyfriend? Are you sexually active with him? When did you start dating? Would you ever cheat? Do you have a history of cheating? What do you mean when you said you wanted to reward him? Do you remember what time you woke up? Were you wearing your cardigan? What color was your cardigan? Do you remember any more from that night? No? Okay, well, we'll let Brock fill it in.

N.B.  I should perhaps remind readers that I do not speak for CJLF.  I don't know whether CJLF takes the same dour view of counsel's behavior in this case, or generally, that I do.  I do know it cares for the well-being and legitimate interests of crime victims.


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