Appeals court hears arguments in Brock Turner case

Justices to issue opinion within 90 days

Brock Turner exits the Santa Clara County Main Jail after serving a three-month sentence on Sept. 2, 2016. Photo by Veronica Weber.

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.


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34 people like this
Posted by Misguided
a resident of Adobe-Meadow
on Jul 24, 2018 at 1:59 pm

RECALL the appellate judge, right?

23 people like this
Posted by The Palo Alto Justice League
a resident of Greenmeadow
on Jul 24, 2018 at 2:06 pm

Mr. Turner wants those convictions off his 'permanent' record as it will probably hinder his future job prospects, apartment/condo rental applications, and quite possibly any potential investigations conducted by a future spouse or girlfriend. *gasp*

Having to register as a sex-offender has its certain drawbacks.

41 people like this
Posted by Parent
a resident of Professorville
on Jul 24, 2018 at 5:23 pm

Can the court give him a longer sentence?

21 people like this
Posted by He Needs to be Evaluated.
a resident of Barron Park School
on Jul 24, 2018 at 8:35 pm

What person in his right mind will keep bringing this up, this only makes the community to remember the pain that a young person had togo through when she was raped. He is risking that another judge gives him extra time, which is what Persky should have done. I guess he wants to continue to be famous.

Posted by Name hidden
a resident of Crescent Park

on Jul 24, 2018 at 10:02 pm

Due to repeated violations of our Terms of Use, comments from this poster are automatically removed. Why?

30 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jul 25, 2018 at 6:52 am

mauricio is a registered user.

What a shame the apples court doesn't have the authority to finally correct the injustice perpetrated by former judge Persky, and give Brock Turner the only sentence he deserves:14 years in a state prison.

8 people like this
Posted by Nope don't buy it
a resident of Adobe-Meadow
on Jul 25, 2018 at 7:06 am

[Post removed.]

15 people like this
Posted by R. Davis
a resident of Crescent Park
on Jul 25, 2018 at 8:34 am

QUOTE: He Needs to be Evaluated.

The one who needs to be evaluated is the attorney who filed and accepted this appeals case.

Then again, a $10K retainer + $450.00 per billable hour can look mighty 'appealing'.

2 people like this
Posted by really?
a resident of Green Acres
on Jul 25, 2018 at 10:29 am

"and quite possibly any potential investigations conducted by a future spouse or girlfriend."

They won't have search engines in the future?

13 people like this
Posted by Lennie
a resident of Barron Park
on Jul 25, 2018 at 11:38 am

Lennie is a registered user.

Mauricio thinks that Brock Turner should have received a 14 year sentence. Is it any wonder that the USA has the world's largest prison population?

27 people like this
Posted by Stanford alum
a resident of College Terrace
on Jul 25, 2018 at 11:59 am

This is an outrage. It's bad enough that he only served 3 months. I hope the court does the right thing.

24 people like this
Posted by Paul
a resident of another community
on Jul 25, 2018 at 12:04 pm

Lennie,the overcrowding is largely due to mandatory minimums for non-violent drug crimes. It's not because of rapists or attempted rapists (including ones who got slaps on the wrist because they were preppy white guys).

24 people like this
Posted by Online Name
a resident of Embarcadero Oaks/Leland
on Jul 25, 2018 at 12:12 pm

Online Name is a registered user.

Maybe this time the new judge will consider the photos showing Brock and his sister drinking and smoking a joint, both of which violated his parole and undercut his claims to be oh-so-clean-living. I vaguely remember there were also pictures of him indulging before his trial that Judge Persky failed to consider that gave impetus to his recall.

37 people like this
Posted by Novelera
a resident of Midtown
on Jul 25, 2018 at 12:34 pm

Novelera is a registered user.

It's sickening to me to read the flimsy stuff Turner's defense attorneys are coming up with to try to get this weasel's record wiped clean.

If he were a young black man instead of an entitled white one, he'd have gotten 20 years and we'd never have heard of him again.

13 people like this
Posted by Riding a Swing at Peers Park
a resident of Southgate
on Jul 25, 2018 at 12:37 pm

> The one who needs to be evaluated is the attorney who filed and accepted this appeals case.

As per this morning's San Jose Mercury News, Mr. Turner's attorney is claiming 'outercourse' rather than 'intercourse'.

According to this particular attorney, since Brock Turner kept his clothes on while performing his questionable acts, he was wrongly convicted.

In Henry IV, Shakespeare had a comment about lawyers.

22 people like this
Posted by Saddened
a resident of Another Palo Alto neighborhood
on Jul 25, 2018 at 12:57 pm

Novelera, I'm afraid that possibly could be a best case scenario. If he were a young black man he may likely have been shot multiple times.

25 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jul 25, 2018 at 4:14 pm

mauricio is a registered user.

The former judge refused to admit evidence that proved Turner lied, through his attorney about never using drugs and alcohol before arriving at Stanford. Turner also violated his parol which prohibits drug and alcohol use. This is just further proof of how wrong the former judge had been in the slight slap on the wrist he gave to this entitled preppy, a slap on the wrist no black defendant would ever get a chance at.

There is no doubt the appeals court will reject this ridiculous and frivolous appeal. Let's hope he is charge with court costs, and let's hope the DA revokes his parol and he is sent where he belongs:doing long and hard time in a state prison.

Sorry, but further commenting on this topic has been closed.

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