Friday, June 10, 2016

It's Not About Removal Of One Judge

Charles Pierce is referring to Donald Trump's attack on Judge Gonzalo Curiel when he writes "Part of the conservative brand within the Republican Party has been to attack the integrity of the judicial process, and of the individual judges working within it, every time a decision comes down that sets the flying monkeys aloft. "

Exhibit A is the case of the late Terri Schiavo of Florida, kept alive, long after death, by a John Ellis Bush pursuing a heartless right-wing agenda.

There is now an Exhibit B. It is Brock Turner.  Recognizing a political opportunity when he sees it, according to a blogger for Crooks and Liars

Conservative Texas Congressman Ted Poe (R) on Thursday lashed out at Judge Aaron Persky after he sentenced former Stanford student Brock Turner to six months in jail for the sexual assault of an unconscious woman.

"The woman, just 22 years of age at the time, was being raped and the rapist was caught in the act," Poe explained in a speech delivered on the floor of the U.S. House of Representatives. "Brock was found guilty of the sexual assault on three counts. His sentence, a mere six months in prison and three years probation."

"Because the judge said a prison sentence would have a 'severe impact' on him," the Texas Republican continued. "Well, isn't that the point? Mr. Speaker, the punishment for rape should be longer than a semester in college."

Semesters don't last six months, but Mr. Poe may be out-of-touch and the report continues "Poe, a former criminal court judge, read a portion of the victim's emotional statement, and then called for Persky to be removed from the bench.... 'Justice demands the judge be removed!' He exclaimed."

Well, no, it doesn't.  The day before Poe's outburst, Mark Joseph Stern (ironically) had criticized the backlash of liberals to Judge Persky and explained

America’s criminal justice system has been distorted in other ways—almost always by well-meaning activists—in an effort to dispense the appropriate punishment to sexual abusers. “Propensity evidence,” or evidence that a defendant committed prior bad acts and is thus more likely to have committed the crime for which he is being tried, is generally barred from the courtroom. That rule, however, does not apply in sexual assault cases, allowing the prosecutor to present evidence that the defendant committed previous sexual assaults. This is cheating. It allows the prosecution to make a weaker case, trusting that the jury will presume that, since the defendant has committed rape previously, he probably did so this time, too. Two state supreme courts have invalidated this exception, with one explaining that it “violates a defendant’s right to be tried for the offense for which he is indicted.” But it remains the rule through most of the judiciary.

Stern understands that evidence of prior criminal acts, sexual and/or violent or otherwise, can be presented as mitigating or aggravating factors in sentencing. Admitting it in sexual assault cases- solely- is on its face a double standard. It may be unclear whether its admissability should be expanded or further restricted, but the principle Stern emphasizes is not:  "What Brock Turner did was sickening; what he received as punishment is far less than what he deserved. But eroding due process and threatening judicial independence is not the way to bring his victim justice."

The question arises: was Representative Poe born yesterday? Surely, as one who served on the criminal bench, he is aware that if any Judge were removed once he or she issued an excessively lenient sentence upon a defendant in a criminal  case, there would be few if any judges remaining. Even the more punitive judges periodically go  too easy on a defendant. They have a lot of cases, and it's what they do.

The Texas congressman knows what he's saying and what he's doing.  Of contempt for Judge Curiel, Pierce writes "He, Trump is not an aberration. He is an exaggeration, nothing more than that." Many progressives are exorcised about the lenient sentence meted out to one individual, Brock Turner. However, from Terry Schiavo to Merrick Garland to Mary Barzee Flores to Aaron Persky, Ted Poe and other Republicans are taking the long game, and the target is the judicial independence Stern cites. As a presidential election awaits, it's yet one more thing to ponder for skeptics of Hillary Clinton flirting with Donald Trump.

I'm taking a short hiatus from blogging. Please come back on June 15 for more incisive, always humble, commentary. 

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