Crime, White-Collar Crime

The Stanford Rape Case, Social Media, and The Duties of Criminal Defense Counsel

Criminal defense lawyers should keep the power of social media in the back of their mind.

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twitter birdFormer Stanford swimmer Brock Turner’s six-month sentence for having sex with an unconscious woman behind a dumpster has taken over the internet.

There’s a lot about the case to talk about. The sentence strikes many as a shockingly lenient; a petition has been circulated to try to oust the judge from the California courts. The woman who was attacked wrote a powerful letter about the assault, her experience with the criminal justice system, and Turner’s privilege and lack of remorse. That letter has had more than 4 million hits. And Turner’s dad wrote a letter as part of the sentencing presentation that has been widely mocked and may be the most tone-deaf piece of writing this millennium.

This kind of attention is a new thing. Sure, there have been high profile cases in the past, but the way things go viral is new. Virality is, itself, an odd thing. It’s great and fun when it’s a video of John Oliver giving away $15 million of medical debt.

But I worry about it in other contexts, like where it intersects with the legal system. Have the thousands of people who have signed a petition to oust the judge thought about what that might do to judicial independence? It seems to me there are pretty good reasons to not remove judges just because of what they do in one case; setting up such a system could pretty quickly get very bad.

Social media is, ironically, the enemy of reasoned conversation. Facebook and Twitter are notoriously good places to increase heat and decrease light in an exchange. There’s a reason Donald Trump’s demagoguery plays better on Twitter than Hillary Clinton’s reasoned and rational policy discussion. And that difference does not make social media look good. (It’s also the laziest form of activism. With waning church attendance, Facebook is the new opiate of the masses. “Revolution? Nah, my latest post will surely tear the system down. I’m bending the moral universe!” If only Phil Ochs were alive to mock it.)

The facts of the Stanford rape case are horrible.

Probably the most telling part is the reaction of one of the Swedish graduate students who broke up the rape. (By the way, go Sweden! Swedes also break up fights in New York. Coast to coast, Swedish visitors may be the best part of our criminal justice system.) As reported in this story, the report contained this description of one of the graduate student’s statements:

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“It should be noted that several times throughout giving his statement, Jonsson became very upset, to the point where he began crying while recounting the incident,” the report read. “He had to stop and take several deep breaths before being able to resume giving me his statement. He said it was a very disturbing event for him to witness and be involved in, but he just reacted to the situation at hand without really thinking.”

Nonetheless, Turner had, and should have, a lawyer. And that lawyer — judging by the end result — did a really good job for his client. I wonder, though, how the reaction to this case on the internet should figure into what a lawyer’s tactical approach should be as it’s being litigated.

Much of what drove the emotional force from the letter of the woman who was assaulted was how Turner’s lawyer cross-examined her. For example, she lists some of his questions:

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?

She describes the questioning from her point of view:

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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.

Everything the lawyer did was textbook. It’s what defense lawyers are supposed to do. If people have a right to trial by jury, then relevant questions will have to be asked, even if those questions are invasive. What happened is pretty close to exactly what should have happened.

Yet four million people have looked at the woman’s statement about the case and that level of attention imposes a cost on Turner.

Then there was the father’s statement.

It’s common for family members to submit a statement to a court before sentencing. It’s an important part of giving the judge the full picture of the person being sentenced.

Turner’s dad submitted such a letter. He summarized the effect the case was having on his son Turner. He highlighted that his son “is a very good cook” and used to like to eat “a big rib eye steak.” Since he was convicted of sexual assault, he has lost his appetite.

I get that a father wants to show how hard it is to see his son go through something like this. A parent should stand by his or her child. But, really, dude, choose a better example. The loss to mourn here is not the rib eye steak that didn’t get eaten. Aside from not recognizing the seriousness of the crime, this is just really poor advocacy. I don’t see a judge thinking “the guy no longer likes rib eye? That’s punishment enough.”

The father then concluded that the loss of steak enjoyment “is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”

To give him the benefit of the doubt, let’s assume what he meant was something like no one is as bad as the worst thing they’ve done — an idea frequently invoked by anti-death penalty folks and criminal defense lawyers. It’s a beautiful sentiment about the worth of every person despite the wrongfulness of any particular act that is wholly appropriate to invoke here.

If that’s right, then the father should really have used the word “conduct” or “activity.” Because, obviously, “action” is also a synonym for having sex. The reaction on twitter to “action” was pretty foreseeable.

When one of my clients goes to sentencing, I read all of the letters that go to the judge, before they go to the judge. I don’t write them, and I don’t edit them, but I do suggest to the people who write them phrases that strike the ear wrong. For example, I try to dissuade people from arguing that a person is factually innocent in a sentencing letter. When I was a public defender, I once suggested that someone remove a line saying that my client “wouldn’t hurt a fly” when he had a prior murder conviction.

Few lawyers read sentencing letters, or other pleadings, with an eye toward how they will play out on Twitter; normally you read to see how they’ll play to the judge and whether they undermine the presentation you have planned. Yet, as we see in Turner’s case, the Twitter issue is real.

None of this is to say that what the lawyer did was wrong; clearly he’s an excellent lawyer. Turner’s lawyer got, for his client, what anyone going in would think is a very good result. Very few lawyers could have delivered that sentence on these facts. Every person accused of a serious crime should have access to a lawyer that skilled.

As lawyers, prison is the focus and the world tends to shrink to what’s happening in the courtroom. Yet we have to be mindful of collateral consequences of all kinds. In an age of social media viruses, things mutate and spread. Should lawyers guard against that? Can we?

Immigration consequences are easy — you can hire an immigration lawyer and ask her to opine. But when the world on social media can take a phrase out of context and go to town — see, generally, So You’ve Been Publicly Shamed (affiliate link) — I think we may need to think about our obligations in a slightly broader way.

Not all the jurors that matter are in the courtroom.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.

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