There are two ways to 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?”
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 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.
If being white and educated in America is mitigating, then being black and uneducated is aggravating.
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?”
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 mitigation.
Follow the Opinion section on Twitter @latimesopinionand Facebook