Brock Turner, Saying Trial Wasn’t Fair, Appeals Sex-Assault Conviction

Brock Turner departs Santa Clara County's main jail in San Jose last September after serving three months on his sexual assault conviction. (Veronica Weber/Palo Alto Weekly)

Brock Turner, the former Stanford student whose six-month sentence for sexually assaulting a drunken and unconscious woman provoked widespread protests over what critics called an overly lenient sentence, is headed back to court — this time to set aside the guilty verdict on grounds that he was denied a fair trial.

Mill Valley attorney Eric Multhaup, a veteran litigator and appeals specialist, filed a 172-page brief on Friday with California’s 6th District Court of Appeal.

Turner was arrested in January 2015 after witnesses found him “thrusting aggressively” atop a partially clothed woman near a Dumpster on the Stanford campus.

Turner was found guilty in March 2016 on three counts of sexual assault. Less than three months later, the case gained a national profile when Santa Clara County Superior Court Judge Aaron Persky sentenced Turner to six months in county jail and three years probation — a sentence condemned both by the victim in a courtroom statement and by anti-rape activists across the country.

After serving his sentence, Turner returned to his home state, Ohio, and was required to register as a sex offender.

Multhaup’s appeal brief includes a detailed examination of the testimony surrounding how drunk the victim, known as Emily Doe, was at the time of the crime. He concludes that it’s “highly debatable” that Doe was too incapacitated, as she had testified, to consent to a sexual encounter.

The evidence he cites includes Turner’s uncorroborated testimony that Doe willingly left a sorority party with him and walked 116 feet — the figure the brief repeatedly cites as the distance between the sorority house and the scene of what the brief calls “the sexual conduct.”

Multhaup cites several instances in which he says Turner’s defense was placed at an unfair disadvantage:

  • Judge Persky limited Turner’s character witnesses to testify only about his “high moral character as it relates to sexual
    assaultive behavior.”
  • The jury was deprived of the opportunity to consider alternative lesser offenses than those charged by the prosecution.
  • The prosecution had prejudicially focused on the crime’s surroundings, specifically through repeated use of the phrase “behind the Dumpster.”
  • Persky failed to provide “an accurate and appropriate response” to jury questions during trial deliberations.

Twenty pages of Multhaup’s brief focuses on the prosecution’s allegedly prejudicial references to the Dumpster at the crime scene. The attorney writes that the focus on the garbage receptacle — which was 20 to 30 feet from where Turner was seen on top of the half-naked Doe — amounted to “propaganda” meant to sway the jury and faulted Turner’s trial counsel for failing to object to it.

The brief says the references implied Turner was trying to hide what he was doing and were meant to suggest “moral depravity, callousness, and culpability … because of the inherent connotations of filth, garbage, detritus and criminal activity frequently generally associated with Dumpsters. ”

In fact, Multhaup wrote, the scene was actually “a clean, well-maintained area shaded by pine trees, typical of the sylvan Stanford campus.”

Reaction to Turner’s appeal?

Jeff Rosen, Santa Clara County district attorney, said in a statement, “Brock Turner received a fair trial and was justly convicted. His conviction will be upheld. Nothing can ever roll back Emily Doe’s legacy of raising the world’s awareness about sexual assault.”

Michele Dauber, the Stanford law professor who is leading a campaign to recall Persky over Turner’s sentence, told the New York Times, “The jury heard the evidence and decisively rejected Turner’s efforts to blame the victim. The problem with this case is not that Judge Persky was unfair to Brock Turner, it’s that Judge Persky was unfair to the victim.”

“Regardless of whether it happened behind the dumpster or adjacent to the dumpster or the dumpster didn’t exist, he committed sexual assault,” Jess Davidson, managing director of the group End Rape on Campus, told the San Francisco Chronicle. “Turner clearly still does not get it.”

Multhaup’s brief notes what it calls “an inordinate amount of publicity, public outcry, and vituperation” against Turner and Persky, and asks the appeals panel to “distance itself from the media renditions of the case in favor of immersion in the actual evidence.”

Brock Turner, Saying Trial Wasn’t Fair, Appeals Sex-Assault Conviction 4 December,2017Dan Brekke

  • Curious

    So what is Michele Dauber afraid of?

  • Cathy Berne Scott

    Better be careful what he wishes for–he got off with a slap on the wrist…he may go to jail for a long time after a retrial.

Author

Dan Brekke

Dan Brekke is a blogger, reporter and editor for KQED News, responsible for online breaking news coverage of topics ranging from California water issues to the Bay Area’s transportation challenges. In a newsroom career that began in Chicago in 1972, Dan has worked as a city and foreign/national editor for The San Francisco Examiner, editor at Wired News, deputy editor at Wired magazine, managing editor at TechTV as well as for several Web startups.

Since joining KQED in 2007, Dan has reported, edited and produced both radio and online features and breaking news pieces. He has shared in two Society of Professional Journalists Norcal Excellence in Journalism awards — for his 2012 reporting on a KQED Science series on water and power in California, and in 2014, for KQED’s comprehensive reporting on the south Napa earthquake.

In addition to his 44 years of on-the-job education, Dan is a lifelong student of history and is still pursuing an undergraduate degree.

Email Dan at: dbrekke@kqed.org

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