An attorney for Brock Turner, the former Stanford University student who served three months in jail for sexually assaulting an unconscious woman on campus, argued in the state's 6th District Court of Appeal in San Jose on Tuesday that there was insufficient evidence that his client committed the three felony crimes he was convicted of in 2016.
Mill Valley attorney Eric Multhaup, who filed an appeal on Turner's behalf in December, argued that the jury had to engage in "speculation" to conclude beyond a reasonable doubt that he committed the crimes.
"They filled in the blanks in the prosecution's case," Multhaup told the three presiding justices. "That's imagination. That's speculation."
A Santa Clara County jury found Turner guilty of assault with the intent to commit rape, sexual penetration with a foreign object of an intoxicated person and sexual penetration with a foreign object of an unconscious person. He served half of his six-month sentence, which incited global outrage and led to the contentious recall this June of the judge who oversaw the case, Aaron Persky. Turner is also required to register as a sex offender for life.
Multhaup and Deputy Attorney General Alisha Carlile, on behalf of the state Attorney General's Office, presented their respective oral arguments in front of Associate Justices Franklin Elia, Wendy Clark Duffy and Adrienne Grover on Tuesday.
Initially, the appeal argued for a new trial on the basis that Turner was deprived of his right to due process and that the jury was prejudiced for several reasons, including the exclusion of evidence of Turner's credibility and honesty and the prosecution's repeated descriptions of the assault taking place behind a dumpster. In May, Multhaup withdrew all of the appeal's claims except for one: insufficiency of the evidence, court documents show.
After filing the appeal, Turner "took stock of the likelihood of success of the pending arguments, and of the potential consequences in the trial court if one or more of the arguments were successful on appeal" -- including a retrial and possible re-sentencing, a May 13 withdrawal notice states.
On Tuesday, Multhaup focused instead on two new arguments.
He argued that because Turner was fully dressed when two Stanford graduate students observed him "engaged in aggressive thrusting" on top of the partially unclothed, unconscious woman, known anonymously as Emily Doe, outside a fraternity party in 2015, he was engaging in "outercourse" rather than demonstrating an intent to commit rape.
Multhaup defined outercourse as a "version of safe sex" during which the participants are fully clothed and there is no "penile contact."
Associate Justice Franklin Elia rejected this argument, telling Multhaup that the Supreme Court has ruled that a defendant's exposure of him or herself is not required to provide intent to commit rape.
For the other two charges, Multhaup argued that there was no concrete evidence to prove at what point Doe lost consciousness and could thus not consent to being digitally penetrated by Turner. Multhaup said the jury had to "speculate" about when that happened in what he said was a 30-minute period after Turner and Doe left the fraternity party.
During the trial, the jury heard a slurred, incoherent voicemail Doe left for her boyfriend on Jan. 18, 2015 at 12:16 a.m. Shortly after, two Stanford graduate students intervened after they saw Turner on top of an unmoving Doe.
Turner testified that Doe was conscious and consented throughout their interactions.
Associate Justice Wendy Clark Duffy questioned Multhaup's time frame, suggesting that he was asking the justices to "draw the inference" that Doe could have lost consciousness toward the end of the 30-minute period, when Turner himself told a police officer that night that he and Doe were outside together for about five minutes.
The three justices repeatedly reminded Multhaup that their role is not to reweigh evidence that was presented during the trial or consider alternate conclusions the jury could have reached.
Carlile similarly argued that Multhaup was asking the court to "act as a super fact-finder" and reject the jury's verdict in favor of his own "far-fetched version of events."
The evidence was "ample" for the convictions, she argued, from the graduate students' testimony that Turner fled after they confronted him and did not offer an explanation for why he was with Doe to the fact that she was unconscious for several hours and had a blood alcohol level three times the legal driving limit in California of 0.08.
Multhaup countered that Turner fleeing — or him kissing Doe's younger sister without permission at the fraternity party earlier in the evening — does not amount to "affirmative evidence" that would prove beyond a reasonable doubt that he intended to rape Doe.
There is rarely direct evidence to demonstrate intent to commit a crime, Elia told Multhaup.
"You look at the entire circumstances. You can't just surgically remove these" pieces of evidence, the justice said.
The court has 90 days to issue an opinion.
Alaleh Kianerci, the Santa Clara County deputy district attorney who prosecuted the Turner case, attended the hearing. She declined to comment to the Weekly.