Retired justice said Brock Turner's judge was right to rule the way that he did

By Dee Thompson | Jan 31, 2017

STOCKTON — A retired judge who served on a panel of legal experts that met recently to discuss the Brock Turner case said that a Santa Clara judge was right to rule the way that he did in the case.

"It was a lawful sentence within the discretion given to the judge by the legislature based on the crime as it was defined at that time," Arthur Scotland, retired presiding justice of the California Court of Appeals for the Third District, told the Northern California Record. 

In June 2016, Judge Aaron Persky sentenced Turner to six months in jail after he was convicted of sexually assaulting a young woman who was intoxicated and unconscious. Turner also had to register as a sex offender. He only served three months in jail.

Since that time, there has been a public outcry over the short sentence.

Scotland joined other legal experts in the "Know Impartiality, Know Justice: Ensuring the Importance of an Impartial Judiciary in California" panel, which drew 200 people to the University of the Pacific event in November.

Judge Barbara Kronlund, of the Superior Court of San Joaquin County, organized and co-moderated the presentation, prepared and presented a PowerPoint.  In addition to Scotland, other panel members included: 

Ming Chin, an associate justice of the California Supreme Court;  Morrison England, chief judge for the U.S. District Court for the Eastern District of California; and Mike Vitiello, University of the Pacific law professor.

Some of the ideas discussed were: why the general public should care about preserving a fair and impartial judicial system, whether courts and judges are accountable for their rulings, and whether the potential for recalling judges is a good system. The panel also covered whether the threat of media coverage impacts the ability of a judge to make impartial decisions, whether the media gave fair coverage of the sentencing of Turner and commented on the letter by 46 law school professors, saying “the recall movement seeks to make (judges) fear the wrath of voters if they exercise their lawful discretion in favor of lenience."

In addition, the panel covered what judges can do when they are subject to unfair criticism of their judicial decisions and how the judicial branch seeks to police itself from bias/conflict to ensure an impartial judiciary.

Vitiello told the audience that he thought the result of the controversy might be that judges would start to give out longer sentences; however, Scotland disagreed.

“All of the judges with whom I served for over 23 years took their duties seriously and cared deeply about making the legally correct decision, even if it might be unpopular," Scotland told the Record.  "I do not suggest that there is no judge who might allow the potential of a recall effort to affect his or her sentencing decision. But I believe that Mike, whom I respect as a smart and talented professor, overstates this potential.”

Scotland said judges cannot sentence on whim.

"They must follow rules set forth in the Penal Code giving judges limited sentencing discretion and must apply Rules of Court that require judges to consider specified circumstances in mitigation and aggravation relating to the crime and the offender," he said. "Judges also must consider a report prepared by the County Probation Department, which has the responsibility to do a background investigation of the defendant, prepare a social history report and recommend a sentence.”

Scotland thought that media coverage of the Turner case was inadequate.

“In my view, most of the media coverage about the Brock Turner sentencing was superficial and failed to fulfill the media’s obligation to accurately and thoroughly inform the public of the reasons for Judge Persky’s ruling and the fact that he imposed a lawful sentence recommended by the probation department," he said.

He concluded that public pressure on judges is inappropriate except in a legislative forum.

“It would be a sorry state of affairs if public pressure causes judges to hold their fingers in the wind and rule based on public sentiment rather than impartial rules of law," he said. "If the public feels that the rules are wrong, they should seek to change the laws through legislative action, rather than undermine the judiciary simply because a judge issued a lawful but unpopular decision.”

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