Episode 3: People v. Brock Turner, Part 1
Jessa: Hey everybody. I’m Jessa.
Nick: This is Nick
Jessa: And this is Getting Off. Today, we are going to talk about our first sort of case analysis and we’re doing the People v. Brock Turner. Nick is going to take a prosecutorial stance. I’m gonna take the defense stance. We’re gonna start out by telling you about the crime and walking all the way through the court proceedings that, in this case, spoiler alert, if you don’t know the case, did end with a sentencing.
Nick: It sure did.
Jessa: We are, just as a warning, this is a sexual assault case. We’re going to be talking about images of sexual violence or nudity. We’re gonna be talking about sensitive subjects. If that’s something that is difficult for you to listen to, particularly because we’re going to try and give you both the prosecutorial and a defense perspective, so if that’s something that’s gonna be difficult to listen to, this is probably not the episode for you.
Nick: Right, and this won’t be the only episode, but just to reiterate that. This podcast and this particular episode of this podcast is going to be talking about difficult, violent crimes. This is a case that involved a terrible, difficult, violent crime. We don’t have to speak about it in terms of allegation because Brock Turner was convicted by a jury. He did that. So we’re gonna be talking both about a pretty difficult, brutal, violent crime and we’re also gonna be talking about it in explicit terms. Now, I think one of the things you’ll hear us talking about, we alluded to it a bit in the last episode, and we’ll probably make comments about it as we go along, but we’re gonna be using particular language. We are going to be talking about it in explicit terms, but they’re really going to be legally relevant and legally necessary explicit terms. I think one thing you’re gonna hear us talk about is, we try to avoid using sort of unnecessarily emotional-loaded language. We tend to think that’s pretty manipulative. We also tend to think that prosecutors do that more often than defense attorneys. I’m sure there are prosecutors out there who think the exact opposite. And I’ve actually got some notes about examples of that in this case, but the point being, you’re going to hear us discussing the dynamics of sexual assault, the machinations of sexual assault, in some pretty explicit terms, and if that’s difficult, maybe come back next time.
Jessa: Additionally, we’re going to be referring to the victim in this case as Emily Doe. That is obviously a fake name, and that is intended both to protect her privacy and it’s consistent with when we reviewed the court file and the stuff online, that was how she was pretty consistently referred to.
Nick: Yeah, and I think there was a really strong effort, and I think a noble and worthy effort, to keep her name anonymous throughout that proceeding. I’m not aware of what her name actually is, and I think that is a pretty impressive accomplishment for a case that got as much attention in the media as this one did. And, you know, I think, in different places in the media, or in different places in the police report or court filings or whatnot, she’s referred to slightly differently, sometimes it’s V01 of victim 1 or Jane Doe 1 or Emily Doe, but the point is, we want to make sure you understand who we’re referring to and we’re also going to, you know, we’re certainly not going to do anything to change the fact that her identity remains confidential.
Jessa: Alright. So, let’s talk about what happened and when. We’re going back to January 18, 2015. We are on the Stanford University campus. That is in Palo Alto, California, as I’m sure most of you know. And we are at the Kappa Alpha House. Right? Kappa Alpha?
Nick: Yeah. Kappa Alpha, and it actually started, I mean, the crime took place on January 18, 2015, in the wee hours of the morn, on January 18, so, you know, to sort of set the scene, it would have started on Saturday, the 17th, the 18th was a Sunday. And it was indeed at the Kappa Alpha House on the Stanford campus and that was a location where a fraternity party was taking place. Kappa Alpha is a fraternity, apparently. And that was where Brock Turner and at least one friend of his went to party that night, and Emily Doe, who was 22 years old at the time and I believe was a college graduate of a different college, went to that fraternity party with her younger sister and some other friends. And so that is where they encountered Brock Turner.
Jessa: And, surprise surprise, at this fraternity party, everybody is drinking. Emily and her friends had pre-gamed, so she recalls having taken about four shots of whiskey, sometime between, let’s say 8pm and 11pm.
Nick: Yeah, I think it was pretty specific, I think it was like between 10 and 11, she did that because I think her statement was that she’d eaten a pretty full dinner but that it had been on the later side, like 8:30 or 9 o’clock, and that she’d had four shots of whiskey before she left home to go to the party.
Jessa: And the other girls were drinking champagne, as well. She doesn’t specifically make reference to having the champagne, but there was that alcohol available. Similarly, Brock pre-gaming, it looks like he was drinking at least a couple swigs of Fireball. I think he had some beer.
Nick: Yeah, I think it was something about, something like five to seven Rolling Rocks that he’d consumed. I think it might have been five before he left wherever he was pre-gaming, so then it was five Rolling Rocks and two shots of Fireball, is my recollection of what he said he had to drink prior to going to the fraternity party.
Jessa: Is it just me or is Rolling Rock, like, pretty fancy beer for a college party?
Nick: Oh, do you think so?
Jessa: I totally think so.
Nick: See, no. I totally noted the fact that it was Rolling Rock.
Jessa: So did I.
Nick: But what I noted about that was, I was like, wait. Is that still, do college kids still think that’s a fancy beer? Cause I remember, like, 20-some odd years ago now, if we could get our mitts on some Rolling Rock.
Jessa: Hell yes.
Nick: That was fancy beer back then.
Jessa: This is what I’m saying.
Nick: I no longer think, I have not thought that Rolling Rock was fancy beer for a very long time. But back then, that is fancy beer for college kids.
Jessa: Dude, it wasn’t the Natty Ice, so that was an immediate..
Nick: Did you, we’re hopping ahead of here a little bit in the story in terms of the accounts and the testimony of what happened that night, but Natty Light does figure in later.
Jessa. That’s true. It does.
Nick. Yes. So yes, there was a lot of Rolling Rock drinking going on, and of course there’s the lovely juxtaposition of Rolling Rock with Fireball.
Jessa: It’s a dinner of champions.
Jessa: Okay. So after 11pm, Emily and her friends arrive at this party at some point.
Nick: Yes. And interestingly, they get, cause, Emily Doe goes with her sister.
Nick: And they get dropped off on the Stanford campus somewhere in the proximity of the fraternity house by their mother.
Nick: Where they then meet up with other friends, I think at the fraternity house,
Jessa: Which is, like, adorably wholesome.
Nick: It is.
Nick: Mom dropped them off.
Jessa: And, you know, to borrow a phrase, Emily did not go there. “She doesn’t even go here”. That’s what I keep thinking. She was a recent grad. Emily had a boyfriend. I mention this only because she makes some phone calls to him later in the evening that become sort of relevant.
Jessa: So, you know, you can probably conclude, assuming that her relationship is happy, that she’s not really on the prowl for any type of male-interaction, and in fact, she says that when she’s interviewed later. She’s just going out to have fun with her friends.
Nick: She absolutely does say that to the police. She says that she felt, she actually said she felt a little silly as a recent college graduate, as a 22-year old going to a undergrad fraternity party, but she thought it would be fun to go hang out with her sister and she says explicitly “I wasn’t going with the intention of meeting anybody new”, like literally not even like, you know, socializing with strangers, let alone, like, meeting a guy to hook up with. I was literally just going with my younger sister, and her friends.
Jessa: And I would note that even if she had been going, looking to hook up with someone..
Nick: All of that is, yes.
Jessa: That doesn’t, we’re not trying to say, like, if she had been going on the prowl, that somehow that means you end up behind a dumpster.
Nick: Yeah, no. Because if we’re even gonna bring up the things we said before, one could infer from that that we’re suggesting that that’s relevant in some way. It’s not except to the extent that, like, her statement is “I wasn’t looking to literally talk to any strangers that night” But as Jessa said, even if she had been like “Yeah! I’m going to a fraternity party. Maybe I’ll meet some guys.” That doesn’t, obvious, I mean, it should go without saying, part of our problem in this world is that it doesn’t go without saying, apparently, but no matter what your intentions are upon going to a party, you don’t, nothing justifies winding up, you know, underpants removed, unconscious, with some dude on top of you behind a dumpster.
Jessa: So, before we get to all of that.
Jessa: So, why did this case get so much attention? Part of this was who Brock Turner is. So we should just, for those of you who don’t know, he was quite a talented swimmer. He was All-American.
Nick: In high school, yep.
Jessa: He was an olympic-hopeful.
Jessa: Swam for Stanford, which consistently has one of the best swim teams in the country.
Nick: Absolutely. It’s produced many, many, many, many Olympians and is, you know, along the handful of other schools, is one of the absolute top collegiate swimming programs in the country and regularly turns out Olympians, so he was a swimming star in high school. He was a three-time high school All American. He came from a town in Ohio. Yeah. And was at Stanford on a swimming scholarship, which, for whatever it’s worth, it was noteworthy, you know, got Jessa’s attention and my attention cause both of us are former competitive swimmers, as well. And so this guy was a really, really, really high-level competitive swimmer. Like, you know, borderline world class. Like, potentially word class swimmer.
Jessa: Right. And you know what stroke he specialized in?
Nick: I don’t.
Jessa: I didn’t see that, either.
Jessa: I was just curious.
Jessa: I would note that Gansner was a much better swimmer than I was. He swam in college. I just swam in high school. I don’t like to act as though my foray into high school sports counts as..
Nick: Whatever. It was a sport we both participated in and so it was like, you know, that just caught our attention at the time.
Jessa: That also means that, you know, he’s swimming at this level. He’s got to be in just outstanding physical form at this point. I mean, he’s 6 foot 3. He was probably working out five hours a day. You have to imagine he’s quite physically fit. Probably pretty strong.
Nick: Absolutely. He was 19 years, I mean he was a 19 year old scholarship Division 1 athlete. He was extremely physically fit. He was at, you know, sort of within the window of the height of his physical prowess. I mean, he was what he was. He was a 19 year old scholarship Division 1 athlete, at one of the best programs for his sport in the country.
Jessa: Right. So sitting in a position where things, life should be pretty fun for Brock Turner, at this point in time.
Nick: I mean, having been a college swimmer myself, I would suggest that, swimming five hours a day isn’t a whole lot of fun, but setting that aside, that was a choice he made. Yes. Life should’ve been quite grand for him. But getting, so that was who he was. What we know about Emily Doe is sort of what we’ve said already. 22 years old. Recent college graduate. There was some other character information about her presented much later in the case. Sort of as they approached sentencing. She was a very close family friend of a law professor at Stanford who advocated very strongly on her behalf, who talked about, you know, what a fine young woman she was and what a good family she came from and said, you know, many, very positive things about her. But so that’s sort of what we know about, that’s some of what we know, sort of the two main participants. We also know that Brock Turner, I mean, he was 19. He was in his freshman year at Stanford, so this happens in January of his freshman year, hadn’t been there too long. And he had not, he, this wasn’t a guy with a long history of involvement with law enforcement or the criminal justice system. He’d gotten a drinking ticket, I think, what, earlier in the fall.
Jessa: Alright. So I couldn’t quite sort that out. I couldn’t tell if he was issued the “Minor In Possession” ticket for the night of.
Nick: Of this?
Jessa: Yeah. Or if that was an earlier ticket.
Nick: No, no, That was earlier. I believe it was in November of ‘14, which I took to be November of his, like, first semester, freshman year. The description I read of that was that, I mean, oddly, I read a description he was wearing an orange tuxedo. But what I read of that was he was with some guys from the swim team. They were drinking beer out in public. A cop swung by, saw them, stopped and was like, those look like people under 21 drinking. I’m gonna go inquire about that, and they tried to run, and of course that didn’t work out very well for them.
Jessa: Okay. Either way, he has no criminal history, possessing alcohol as a minor is not..
Nick: No, it was a ticket. It was a forfeiture..
Jessa: Right. It’s not a crime. So, you know, generally speaking, good kid, good family..
Nick: Etc Etc
Jessa: All of that. Yeah. Unlike Emily, who was not on the prowl that night, pretty much all the reports indicate that Brock was DTF.
Jessa: There are at least a couple of young women who say that he was pretty aggressive.
Nick: He was more than DTF. He was, like, LTF. He was, like, looking.
Jessa: Yeah. ALTF. He was “aggressively looking to fuck”.
Jessa: But he was making out with different girls, and he corroborates that, too, in his initial statement to law enforcement, he had said he had hooked up with four girls that night.
Nick: Right, which I took to mean, and I think is actually explained in other places in the court file and in some of the documents, that he kissed or made out with some number of women, perhaps four that night. There’s also description, I mean, what it sounds like is, what I believe happened was, Emily Doe and her sisters and perhaps their friends first encounter Brock Turner and some of his friends out on the back porch of the fraternity. And I believe that Brock Turner first tries to get with Emily Doe’s sister.
Jessa: I think that’s true.
Nick: And it’s described that he makes out with her cheek, which was a new one for me.
Jessa: It’s what every little girl dreams of, just having some dude lick your face.
Nick: I mean, that’s exactly how I envision that, and I’m like..
Jessa: It’s totally how I do, too.
Nick: I was, like, well, that’s awful.
Jessa: Dude. Don’t be gross. Like, why are you doing that? No one wants their face licked.
Nick: I mean, that is a state, that is a phrase we use in this office frequently. “Why are you doing that?”
Jessa: Or “Why did you do that?”
Nick: Yes. And so, why would you do that? Why would you go up and start putting your mouth on someone’s side of someone’s face? Don’t do that.
Nick: Even if it stopped at that point, it’d be like, alright. You need to go, you need a time out for a while. Like, that can’t happen again.
Jessa: So, despite the fact that he was, you know, pretty much on the prowl, that seemed to be reasonably well received in that he wasn’t hauled out of the party.
Nick: It sounded like he was being quite aggressive. I think he was described, you know, cause like, in the immediate aftermath of this, the women that had been with Emily, they didn’t know this guy.
Nick: Emily didn’t know this guy.
Jessa: Yes. They were strangers.
Nick: Yeah, they were strangers. Like, they’d literally never met this guy before this night, and they also, I mean, nobody was at this party very long. Like, this, like, Brock and his friend, they got there, I think somewhere around 11 or 11:30, and I think Emily and her sister met their friends at the party somewhere in the same time range, and in the police reports, Emily and Emily’s sister and their friends describe being at the party for maybe 20 or 30 minutes before they walked out of the fraternity house to pee, and then returning to the fraternity house but hanging out on the back porch and never re-entering the house itself. So like, none of these folks were there very long before something terrible happened. Right? And, but the descriptions were that Brock was being, was, right. ALTF. Was aggressively looking during this relatively short period of time he was there, he was, like, macking on, like, aggressively climbing on and touching other women.
Jessa: Right. I did read that once Emily got to the party, she remembers having approximately two shots of vodka. She described taking that out of a red solo cup and saying that the vodka was poured to the first line in the bottom of the cup. And that was how she estimated that.
Nick: Right. And one thing that’s curious about this case is that, I mean I think, there was a trial. That’s a fact. And from a certain perspective, you know, when Jessa and I started looking at this case very closely, more closely than we had at the time, one question we had was, “Why was there a trial?”, because there are certain facts that would lead one to say, “Where are the triable facts here?” And frankly, at the end of the analysis, especially if I’m gonna take a prosecutorial view of this case, I still think that. I can make a pretty argument that this was a terrible trial case for the defense and that Brock Turner should have significantly hurt himself by taking the case to trial, and I, notice how I said that: “significantly hurt himself by taking this case to trial”, and that’s something we’re gonna get to, what I’m alluding to there. But to the extent that there were any triable issues in this case, and Jessa and I are gonna tell you that the final analysis is that this was a bad trial case.
Nick: But, leading up to the facts, the specific facts, that made this a terrible trial case, you know, the testimony, the accounts, including from Emily herself, was that she was really, really intoxicated. And one area of ambiguity, and there often times are areas of ambiguity, I mean, factual errors of ambiguity, in many cases, particularly in a lot of sexual assault cases, particularly in sexual assault cases that involve drugs or alcohol, so one of area ambiguity is, she described, she had a pretty clear sense of how much she had to drink that night.
Jessa: Well, she had a pretty clear of how much she had to drink that she remembers.
Nick: Well, okay. Fair enough. Well, and that’s where, she gave a clear account of how much she had to drink. A separate question could be, “How reliable is that information?”
Jessa: Right. And since, you know, I think this is the, I think we’ve covered the part that everybody agrees on the facts.
Jessa: So what I would suggest, Nick, is why don’t you tell everybody what happened from the prosecution perspective next?
Jessa: Then I’ll tell them what the defense perspective is.
Jessa: And then we can circle back to that question about, how much everybody had to drink cause I have some defense-related thoughts on that.
Nick: Let’s do that. Okay. So, I think the point where the facts are probably relatively uncontested ends somewhere during the period of time where Brock Turner and perhaps friends, and Emily Doe and perhaps friends, are on the back porch of the Kappa Alpha fraternity. After that, I think there’s probably, well, for sure the defense and the prosecution did and probably would again present that case, the facts that what happened after that, differently. So what the prosecution would say is, Emily became separated from the other people that she was there with, and the reason that we know that and believe that is, number one: she wound up behind a dumpster, by, without her friends. And number two: there was evidence recovered from her cell phone and others about communications that she attempted to engage in between midnight and 1 in the morning. And the assault happens right around 1am. Like, somewhere between, like, 12:55 and 1:05am. And so, there was testimony about her attempting to reach her boyfriend by cell phone and leaving a largely incoherent voicemail to him. There were also text messages from her to some of these other women that she was with, where they’re sort of looking for each other and wondering where they are, which, the inference you would draw from that, of course, is that they’re not together. And so, what happens at that point is, Brock Turner, she winds up not that far away from the back of the Kappa Alpha fraternity, but, you know, 50 yards or so, in an area between two dumpsters on a walkway between the fraternity and another residential house, university residential housing building, under some pine trees, and she is unconscious and Brock Turner is on top of her. She also has portions of her clothing removed. She was described as wearing a skin tight black dress, but when she is found by passersby and law enforcement, that black dress is hiked up above her waist. Her underwear has been removed. It is present on scene, and it is nearby, but it is off of her body. Her, she has a sweatshirt on, it was, it had come off of one arm, but was still on the other. Her boots were still on. Her bra, I think, was described as “disheveled”.
Jessa: Yeah, I have no idea what a disheveled bra is, exactly.
Nick: As a former English major, police reports sometimes offend me in their use of language, but they’re not intended to be pieces of literature. They’re intended to quickly convey factual information, so we can probably conclude from that her bra was still on her body, but it was not on her body in the way that it would normally be. That’s what I think.
Jessa: That’s what I understood, too, that it looked like maybe somebody was trying to shove it up or..
Nick: Right. There’s some dispute about how did Emily Doe go from the back porch of the Kappa Alpha fraternity, how did she wind up going from there and winding up on the ground, with this six foot three, Division 1 scholarship athlete on top of her while she was unconscious. And so what the prosecution would say was, he led her away. He identified her as being super intoxicated to the point that she really couldn’t say no or, well, the prosecution would certainly say that she was so impaired that she couldn’t consent at all, that she was too impaired to consent, that pertained to some of the actual charges. And that he did so in sort of a predatory fashion. I mean, they explicitly made that argument at sentencing, that he was acting as a predator and she was his prey, meaning that he had sort of identified as being in a highly compromised state and took advantage of it. And so, he got her isolated, away from everybody else, where no one else could interfere or that’s what he thought. And then assaulted her, and so that would certainly be the short of it, the short version of the prosecution’s view of the case.
Jessa: Alright. From Brock’s perspective, he talks to law enforcement about five hours after this happens. Looks like his interview started around 6:30am. So when he was arrested, he appeared drunk, but coherent. I think they essentially let him sober up.
Nick: And that he would have been more, and we’ll talk in a bit probably pretty soon about what every, what law enforcement believed everyone’s BAC levels to have been at the time of the, at the time of the crime. But yeah, I think they describe Brock, by the time Detective Kim interviews Brock, he describes him as being coherent.
Jessa: Right. So from Brock’s perspective, what he says happens, initially at least, and he does have some inconsistencies in the way that this is presented and the way the story changes in preparation for, and ultimately during his testimony at trial. But in his initial statement to law enforcement, he says he was dancing with a bunch of different girls, there were people dancing on the table, there were people, you know, fooling around and just having a good time, that he ends up seeing this girl with dark hair who he’s never seen before. He thinks she’s pretty. He approaches her. They don’t say a word to each other. You know, as one does, and start dancing, that they were dancing in a sexualized manner and then they start making out on the dance floor. And that that goes on for at least a little period of time, that they are kissing and that they decide to take that to a more private place. Again, in his initial statement, he reports that none of this was discussed verbally.
Jessa: That this is just what everybody knew was happening, based on, I guess, the sexual chemistry between the two of them in this brief hook up. So he asserts that they go outside, they wander off kind of behind where it's this dumpster.
Nick: He talks about them holding hands.
Jessa: And the pine cones, the pine trees, that they’re holding hands, they’re kissing, they end up, she is on the ground. He does say she falls down.
Nick: Yeah. He said she slipped and goes to the ground and then they chose that time and place to have a consensual hook up.
Jessa: Right. Because..
Nick: Because we all dream of just such a scenario.
Jessa: Right. When I fall down, the absolute next thing I want is someone to dry hump me. Always.
Nick: Particularly when I fall down next to a dumpster, which, I mean, in my life experience, dumpsters usually smell terrible. That is, again, sort of adds...
Jessa: Sexy time.
Nick: Adds to the tableau.
Nick: In legal terms, I think we would call these issues with the credibility of his account.
Jessa: Right. So that’s what he says, is that she falls down, he kind of falls on top of her, this is some type of romantic movie meet cute, sort of clumsy moment. They continue to start making out. He takes off her underwear. He begins digitally penetrating her with his fingers and she seems to be into that, from his account. Again, the first account, he says that she kind of moaned a little bit and that while he was doing this to her, she was rubbing his back with both hands but not saying anything. So that’s kinda what he understood the affirmative consent to be, was this rubbing his back.
Nick: In his first story.
Jessa:In his first story. He is able to remember some additional facts in the future.
Jessa: But this is the initial, right after the fact, story. And that then, all of a sudden, he was interested in having consensual sex with her. That was sort of the grand plan, but all of a sudden, there are these two guys that come screaming and yelling at him, that they’re physical with him and pull him off and he’s terrified and doesn’t know why these guys are coming at him, so he takes off running because he thinks these guys are gonna hurt him.
Jessa: That’s how Brock Turner sees this sequence of events.
Nick: Right. At like, 6am or approximately 6am on January 18, 2015, that’s his view of what happened.
Jessa: And prosecution, is that what those guys were doing from the prosecution perspective?
Nick: Absolutely not. Number one: these guys, from a prosecution perspective, these guys are total good samaritans. They’re good guys. They’re two foreign exchange students or graduate students at Stanford. They’re riding their bicycles in the area at the time. You know, one thing that’s pretty interesting to me and I would have really emphasised if I were the prosecutor, is that these guys aren’t, like, you know, out there, like, as vigilantes, patrolling the world, looking for rapists. These are two dudes just riding their bikes at night, and like, from the perspective, from the vantage point atop their bicycles as they pedal down the sidewalk, they can tell that Brock Turner is raping an unconscious human being.
Jessa: Well. Well, well, well.
Nick: Of course, again, this is the prosecutorial perspective, but I would have laid it on hard and thick that way because, again, these guys aren’t out there. They aren’t, you know, Batman looking for evil-doers. They’re just riding their bike down the street, and like, are you at your most observant about a potential rape when you’re pedaling your bicycle? No. My point would be, it was so obvious that what was happening was a sexual assault and was a crime and was wrong, that these two dudes riding their bicycle at one o’clock in the morning, could tell, from some distance away, atop a bicycle, as they pump their legs and jostles back, they could tell immediately, “Whoa. What’s going on there? That’s a crime.” One of them in particular, I think it was Jonsson, not Arndt, who was the one who was like “whoa whoa whoa. We have to stop. There’s something amiss here”. Arndt actually told the cops that morning, that night, that at first, he thought it was just two people hooking up and having sex. Jonsson was the one that pretty quickly discerned, “Wait a minute. That woman’s not moving. Like, she’s on the ground not moving” and Arndt then says, once they stopped and looked, Arndt was like, “Yep. That woman’s not moving.”
Jessa: Right. So, everybody, both Jonsson and Arndt, which are the two kinda good samaritans here, they both initially see it and say, you know, “Oh. We just thought it was somebody hooking up.”
Jessa: So, from their initial vantage point, all looks to be in order. It’s only as they get closer..
Nick: Well, that’s what Arndt says. Jonsson is the one who more quickly discerns that there’s something amiss here. Arndt, at first glance, which isn’t difficult to understand, again, from a bicycle, might say, “Oh, here I am on a college campus. There’s two kids on the ground fooling around. A little weird, but, like, okay maybe.” But then once they do stop, Jonsson is the one who is like, “We need to stop. There’s something amiss here.” Arndt says his first look was “Oh, might be two kids hooking up on the ground” then once he took a closer look, he’s like “Yep, that person is unconscious”. So they, at sort of Jonsson’s initial instigation, they approach these two and say, basically say, “What the hell are you doing?” They don't lay a finger on Brock Turner. Again, this is the prosecution’s story and this is based off of what Jonsson and Arndt said themselves. They intervene because you know, they say something to the effect of, Jonsson actually testified at trial, he said “What the fuck are you doing? She’s unconscious”. And Brock Turner, at that point, got up and looked at them and then ran away. And one thing that was interesting to me, that I probably would have, I don’t think it’s a huge point, but it’s a small point, is that when Brock Turner was interviewed later that morning, he talked about those guys having, he only got 10 yards away before they continued to physically attack him and in fact, took him to the ground. In actuality, it was, like, 50 yards away. It was sufficiently far away that when law enforcement got there, they had no idea that Brock Turner
Nick: That’s right. It sounds like they had been there for one or two or three minutes before someone said, “Hey. The dude who did this is over there and being held down. Go get him.” The cops were not able to independently, like, perceive that information upon arrival. So it wasn’t ten yards away because if it had been ten yards away, they would have known about it.
Jessa: They would have seen it.
Nick: In thirty feet, if some guy is struggling and being held down to the ground by two strangers, if that’s thirty feet from you, you know that’s happening. 50 yards is a whole other ball of wax. And my point there is that Brock Turner’s was like “Oh yeah. It was, like, 10 yards away.” Well, that goes to the credibility of his own perceptions of what happened that night.
Jessa: Another thing that, and this is more your point than mine, but there were two other young men who saw the cyclists, kind of struggling with Brock.
Nick: That’s right.
Jessa: And they came and from their reports, it appeared to them that it was clear that these two cyclists were not jumping him or robbing him or mugging him, committing against him. They were able somehow, whether it was through words or just observation, to conclude that these two cyclists were attempting to detain him because he was, he was the dangerous person, not the cyclists.
Nick: That’s correct.
Jessa: And I think that’s relevant because there were people that watched this interaction and that was their perception.
Nick: Right. And that is relevant after, you know, this goes to more the defense story, that these two guys, Jonsson and Arndt, sort of, like, physically assaulted him or battered him or attacked him in some way. And so, you know, the two other fellows who walked up slightly after Jonsson and Arndt detained him. Right. Their perception was, they weren’t fighting this guy, they weren’t beating him up. They were attempting to stop wrongdoing by him. That’s where that becomes relevant. Cause then it, again, casts doubt. Now the cops do note that those two guys had been drinking as well. So, you know, I don’t believe the two foreign exchange students had been drinking
Jessa: I think they’re sober. At least, there’s nothing to suggest.
Nick: But obviously, Emily is unconscious, so she can’t say, obviously, at least beyond the point that she was unconscious, what happened. Brock is pretty drunk himself. And the two other dude who came up at the end and observed, they were noted by law enforcement to have, you know, showing signs of having been drinking, but also, were coherent and able to care for themselves and were able to have a normal conversation.
Jessa: Right. And here’s the deal. Sober people, generally more reliable witnesses than drunk people.
Nick: Right. So when we bring that up, that’s what we’re getting at. We’re talking about factors that impact or at least could impact the reliability or the credibility of the information that is being shared by the account giver.
Jessa: And, you know, on the subject of that, it was not entirely clear to me what the lighting situation looked like here. I have to deduce that it was well enough lit, I mean there must’ve been a street lamp or something such that you could clearly see that these were two people and not a trash bag. So I mean, they were able to identify them firmly as people while riding their bikes from presumably some distance away.
Nick: Yeah. That actually is pretty interesting. I didn’t see anything in the police reports, I mean, there was stuff in the police reports about efforts law enforcement made to find out if there were any security cameras, any video cameras of any kind, that would’ve been pointed in that direction in the area. And there weren’t. I didn’t see anything in the police reports that talked about the lighting in the area, because, of course it’s one in the morning, obviously it’s dark out, nor did I see any measurements or any specific information about the distance from where Jonsson and Arndt were bicycling to the dumpsters.
Jessa: Right. So i’m not sure if they were five feet away and there was a little trail that went through, or if they were on a road and could see this. And that would be something that would be important in terms of cross-examination, is it, you know, when you’re making this determination that somebody appears unconscious, how far away are you. Are you doing this from 40 feet away? You know, over the midnight hour, while you’re in motion? How reliable is that observation? And the defense did argue, and would argue, if I’m the defense attorney for this, that you can’t rely on what somebody sees in a matter of seconds from some distance away at night when they’re strangers, as being the absolute be-all and end-all of what happened.
Nick: Agreed. I mean, that’s obvious territory for cross-examination. It’s like, “Okay, this is what you say you saw. Let’s talk about how much we should believe that.”
Jessa: So now both Jonsson and Arndt say that they’d be able to ID Brock Turner again if they had to. They were both pretty firm in their descriptions. They described, you know, his relevant characteristics, height, clothing, etc etc, and felt confident that they could ID him. Brock, when he’s talking to the police, says that he didn’t get Emily’s name, that he doesn’t have a real clear recollection of what she looked like, other than being dark haired and that he didn’t think he’d be able to pick her out of a lineup in the future, if he were asked to identify her again. So clearly, that’s a romance for the ages. So that’s what happens there. Now, Emily is not available to give a statement for quite some time because when the police get there, she is totally unresponsive. I mean,
Nick: Which is, actually, I mean, it’s terrible, obviously, on a human level, you’re like, good lord. But from the prosecution’s perspective, that’s actually excellent evidence and information. I mean, this woman was so impaired that she was A: unconscious the crime happened, B: was unconscious afterwards, not just, like, when these good samaritans intervene, like she didn’t get up and brush herself off and stand up and say “what the heck just happened?” She was unconscious for, like, three hours and 15 minutes longer. They describe her not regaining consciousness until 4:15am. You know, once law enforcement, once 9-1-1 is called or whatever and campus security start showing up and paramedics start showing up, they can’t rouse her.
Jessa: Well, and they, something that is, I think arguably important, is that they have to give her an IV and that becomes.
Nick: Once she gets to the hospital, yeah.
Jessa: Yeah, when they get to the hospital, they give her fluids and that becomes relevant because at, was it 7am, Nick, when she finally, when they PBT’d her, when they had her take the breath test?
Nick: Yeah, well they took blood from her.
Jessa: Oh, was it blood?
Nick: Yeah, I mean, right. Her BAC comes from, I think, from both of them, the BAC comes from blood, and then they extrapolate backwards, try to figure out what it was at the time of the crime.
Jessa: Cause she was a 0.12 when they took her blood.
Nick: Which I think was, like, at somewhere in the 4, 5, 6am range.
Jessa: And so the backwards extrapolation was that she would have been about a 0.22. Now, first defense that I feel like I can come in swinging on, the defense argues at trial that she was blacked out drunk. And they wanted to talk about, and they called an expert to talk about alcohol black outs and how people can be walking, talking, engaging in behaviour, seemingly coherent to other people, able to carry on conversations, but at the same time, have no memory of it. And one thing that I think that is important is if you add, and this is rule of thumb, I’m not using this girl’s weight, I’m not using her exact height, everybody metabolizes alcohol differently, however, there’s a rule of thumb which is that one drink per one hour is a 0.02, and if she had four whiskey shots in an hour’s time, that would put her at a 0.08, has two shots of vodka, part of that whiskey is gonna have dissipated because it’s at least an hour later. So, you know, by my math, the highest she gets is maybe a 0.14, assuming that those are big shots.
Jessa: You know, so, for her to, assuming the extrapolation was correct, for her to be at a 0.22, she had more to drink than she remembers.
Nick: And this goes to what we talked about before. This is an area of factual ambiguity in this case because she gave, Emily gave a pretty clear account, quite clear account of how much she believed she had to drink that night and what she had to drink and when she drank it. But what Jessa’s getting at is, that probably isn’t accurate, if she was. She either didn’t drink what she said she drank or she wasn’t a 0.22 it had happened. Those two things cannot, it is hard to understand how both those things could be true. So we’re, and that’s where the ambiguity comes in. Now, what is consistent is, with her being unconscious and her being a 0.22.
Jessa: Yes. Those two things go together quite well.
Nick: What doesn’t go together is four shots of whiskey between 10 and 11, two more shots of vodka later on, and maybe a beer mixed in there somewhere getting you to a 0.22. So there’s some ambiguity there. And Emily, when she talks to the police, actually, in both on the 18th in the morning, and I think again later, like at night on the 18th, after she goes home and comes back, they found her cell phone and they had her come in so they could give her her phone back and that kind of stuff, and she talks to them, and it’s in the police reports about how she’s really confused and unclear on how she got that messed up.
Nick: And, I mean I think, if you’re listening to this, perhaps, you’re a criminal practitioner or you have something to do with the system or maybe you just find this stuff interesting, but some of you may be wondering, perhaps there was something messing her up that we don’t know about.
Jessa: Right, I mean, I think a very natural suspicion, “Well, was there GHB? Was there some type of other drug?” And there were certainly no medical records that indicated that.
Nick: And they, look, they took blood from her somewhere in the 4-6am range on the same date that this happened and we didn’t see any records of anything like that in her blood. I’m not aware of there being urine tests, which could have potentially produced different results. But this is an example of, like, ambiguity that creeps in during trials. Like, this is hard, and the defense would want to pounce on that ambiguity. The defense would want to say, “Wait a minute. This is what you say you had to drink” etc etc etc, whereas the prosecution would say “Let’s not worry about what she thinks she had to drink. She was so drunk that she was unconscious at that point, perhaps by her own doing, perhaps by others”, although I wouldn’t be allowed to say that during the trial.
Nick: But the defense would want to say, excuse me, the prosecution would want to say, “Let’s not worry about what she had that got her there. What does track is, we think she would have been about a 0.22 at one o’clock in the morning, and what we know for a fact, the one thing that doesn’t require and extrapolation or any inferences or anything, the one thing that was observed by multiple other people was, she was stone unconscious at one o’clock in the morning.
Jessa: Right. And we also know that sometime around 12:30, she left her boyfriend a voicemail that was, I mean I think it was over 30 seconds long, it was quite long, and it didn’t make much, if any, sense. And then I think she called back and he had said it sounded like she was trying really hard to make sense but that she just wasn’t making any sense.
Nick: Right. And so, you know, one thing that Jessa and I have talked about with this case is, there’s a universe, I’m not saying it exists here, but there is some universe or some case, some hypothetical scenario where Brock Turner could’ve had a defense up to a point. Meaning that, you know, we’ve had experts, we’ve been involved with experts who have explained to us the dynamics of black outs or brown outs or whatever you want to call it. Situations where people are significantly impaired to the point where they will not have any recollection later of what they were doing, but that they were walking and talking and presenting as a person capable of making decisions for themselves.
Nick: And people in those states in black outs or brown outs do make decisions for themselves. They make decisions about continuing to party or going to get food or even decisions about whether or not to have sex with somebody. And experts, there are experts who would say, people can make those decisions and be presenting in a way that others around them would not be aware that they were so intoxicated that they were in this kind of black out state.
Nick: And so, that, there, you know, in some universe, that could’ve been helpful to Brock Turner, except there are other facts that basically ruin that story for him.
Jessa: Well, it is helpful. It is helpful to Brock Turner because people can consent to things when they’re black out drunk, and this is where some of the language of the law really matters. Part of what he is charged with, and he’s ultimately charged initially with five separate counts. But what part of what he’s charged with requires that somebody be so intoxicated that they’re unable to understand the nature of the act they’re engaging in, or if we’re looking at the unconscious or anesthetized person, which is another statutory charge that he faced, it’s that, you know, that she’s flat out unconscious, and so they charge it both ways. They charge it as intoxicated and they charge it as unconscious.
Jessa: And part of that allows for the argument from the defense that, you know, yeah, okay, she was intoxicated, but she wasn’t so intoxicated she was unable to consent, and then his position was, she was never unconscious.
Nick: Right. His position on the unconscious part, I mean, they have to be. They..
Jessa: There’s no other thing he can say.
Nick: No. Well, on that particular count. If you were going to trial on any number of counts that involve her being unconscious, obviously the defense has to be “She wasn’t unconscious”.
Nick: Cause otherwise you’re out of luck.
Nick: I mean that’s, like, both, that is a necessary argument to make. On the intoxicated things, you could, because part of what is necessary there is, she has to have, in fact, been terribly intoxicated, but also he needs to have been aware of that.
Nick: And so that’s where this black out brown out expert testimony business comes. The point of that is, she could have been in that condition, that deeply intoxicated black out brown out condition without Brock Turner having been aware of that, and another fact for Brock in that situation is, he too was super ham canned. And so, I mean, they extrapolated his BAC, they estimated, I think he was a .017, was the best estimate at the time. So part of the argument for the defense would have been, “Well, she may have been deeply intoxicated. Perhaps she was in some kind of black out state. But that doesn’t mean that others around her could’ve been, could’ve perceived that and Brock would have been even less likely than a sober person to have perceived it because he, too, was really really intoxicated himself.
Jessa: Over twice the legal limit.
Nick: And of course, we all know that the more intoxicated you get, the less observant you are.
Jessa: So that’s, you know, that’s sort of what happens that night. The police arrive on the scene. I’m not entirely on who called the police, but somebody called the police.
Nick: I think the two Swedish fellas were like, because they intervened, they stopped the assault. I mean.
Jessa: Yes, they did.
Nick: Gold stars for those guys. They did a whole bunch of great things that night. The number one gold star they get is they literally stopped the assault. The assault was happening as they approached him, and I believe they brought, they brought it to an end, due to their intervention.
Jessa: And part of what, when you get into the five charges that result from this, two of them were dismissed at the prelim and we’ll get to that in a second, but they probably are the reason that this case ultimately, only had the three counts at trial instead of five because the first two counts were rape of an intoxicated person and rape of an unconscious person. And in California, it looks like they use sexual assault differently than they use the word “rape” in a statutory way.
Nick: Yeah. Last time you guys heard us talk about using language really carefully and Jessa’s about to get into that because what we use here in Wisconsin and what they use in California, not the same thing.
Jessa: Right. And so, “rape” as I understand it reading these statutes in California, is a really kinda hetero-normative idea because it involves, it has to be genital, it’s gotta be penile to vaginal rape, essentially.
Nick: Yeah. That is a really, sort of patriarcal, hetero-normative view, use of legal terminology there. That really surprised me.
Jessa: It really surprised me, too, and I don’t know if there’s, like, a separate sodomy statute, but I found that interesting, that, you know, it seemed to be geared very specifically about penile penetration of a vaginal cavity. Sexual assault, as defined in the statutes, is penetration with any foreign object, and this is important because I didn’t know this, and I had heard when I learned that he had been convicted, that he was convicted of assault with a foreign object. The foreign object in question is his finger or fingers, and that’s because the California statute defines anything except a genital as a foreign object for purposes of the sexual assault statute.
Nick: Which also, I mean, like, whatever. Any lawyer will tell you, there’s all sorts of weird stuff in the law, and the law, often times, is confusing and doesn’t make sense, but that’s a weird one to me.
Jessa: And you know, so, technically, under California law, while Brock Turner was convicted of a sexual offense, three sexual offenses, actually, he was not convicted of rape. And part of the reason for that is probably that there were these interveners. Because what they see is, they see him thrusting approximately ten times, and I mean, this is a pretty vivid description. They think it’s about ten times that they see him thrusting when they get up. His pants are on, not off. Neither of the two guys can see if his penis is out of his pants or not.
Nick: That’s just not where their focus was.
Jessa: Right. They just don’t know the answer to that. He looks sort of disheveled. But that could be from..
Nick: The fact that they were on the ground next to a dumpster.
Jessa: Right. It could be the dry humping behaviour, which, like, by the way.
Nick: Yeah. I know where you’re going.
Jessa: I mean. It’s a college party, dude. Like, really? Dry humping? Really?
Nick: I mean.
Jessa: I mean, ick.
Jessa: I got nothing for that.
Nick: He’s a 19 year old male. That’s the best explanation I’ve got for that.
Jessa: No one wants to be dry humped. Even conscious people don’t want to be dry humped.
Nick: It’s terrible.
Jessa: Anyway. So the police, when they encounter Brock shortly thereafter, and this was quite a special gem in the police report.
Nick: Boy, howdy, was it.
Jessa: Are able to note his bulging erection inside his pants upon their approach.
Nick: I hate that fact.
Jessa: Well. What is it? Fear boner?
Nick: He’s also laughing.
Jessa: Yeah. It’s the fear boner from the two guys that attacked him.
Nick: I mean, one can assume that he was in some kind, some state or another of sexual arousal at the time he was sexually assaulting this girl because he was committing sexual acts upon her. Now, we can have a separate conversation about what rape is actually about, but I think you know where I’m going with this. But, like, these dudes chase him. Like, slide tackle him, and it’s two that were holding him down for some number of minutes before the cops get there and the cops are still observing this tubular boner shape in his pants.
Nick: What is going on?
Jessa: Apparently dry humping really does it for him.
Jessa: Okay. So that’s what’s up. He’s arrested, and he is charged with rape of an intoxicated person, rape of an unconscious person, assault with the intent to rape an intoxicated person, sexual assault of an intoxicated person with foreign object, which is the digital penetration, and sexually penetrating or sexual assault, digital penetration of an unconscious person. Those are the five initial charges.
Jessa: When Emily Doe finally wakes up at the hospital, she remembers essentially nothing.
Nick: Well, she doesn’t, to get back to her, how hard it was, how deeply sort of unconscious or out of it she was, of course when paramedics, they try to rouse her and they talk to her loudly, they shake her shoulders, and they get no response at all from that. I think one of them describes, he had to, like, pinch her nail beds to get, like, any kind of physical response from her at all.
Jessa:I think she was out.
Nick: Like, out out. I mean, you got people actively, medical professionals actively trying to get a reaction out of you and they are struggling to do so. I think they also, I’m not sure if this was with EMTs or with, once it was at the hospital, but she was an 11 out of 15 on the Glasgow Coma Scale. She was out. You know, and so I think there’s a point back at the hospital where her eyes open for a little bit, but she doesn’t really regain consciousness until 4:15 in the morning, which is three hours and 15 minutes after, you know, the assault takes place.
Jessa: So, you know, Brock says he made the conscious decision to hook up with her and have sexual contact, that she seemed to enjoy, but his intentions were, and I’m quoting “Not to try and rape a girl without her consent”. Which is always so helpful as the defense attorney, when somebody’s like, hey hey, though. I’m not a rapist. Why would you think I’m a rapist? What did I do that makes me seem like a rapist? Totally not a rapist. Did not intend to rape.
Jessa: Like, most people don’t have to say that 12 times.
Nick: Well, also, here’s something we can talk about. On the larger issue of sexual assault. Right. Just because you didn’t intend to rape someone, do you think that means you didn’t rape someone?
Jessa: Well. So here’s what.
Nick: Is that your argument? Really?
Jessa: Well, here’s what’s interesting about California law, and this was something that you and I were, like, freaking out about.
Jessa: So just to cover this really quick, the top two counts, the rape of intox and rape of unconscious.
Nick: You’re talking about the original 1 and 2?
Jessa: Yeah. They get kicked at the preliminary hearing.
Jessa: And the reason for that is, number 1: no one actually saw his penis out and inside of her.
Nick: Right. The original counts 1 and 2 presumed that he had had penis to vagina intercourse with her unconscious body. And so because those were the rape, under California rape charges, so. And those weren’t attempted or intended. Those were, like, actual completed acts. And so once DNA came back showing no presence of her DNA on his genitals, those counts, those two counts went bye bye.
Jessa: The physical evidence just didn’t support the idea that the rape had been completed.
Nick: That’s right. And so, my assumption, my belief about where those charges came from is the two good samaritans described her, like, making thrusting humping motions, what have you, on top of her, and so, people formed the belief or the assumption based on that, that he had been having, that he may have been having at least sexual intercourse with her. So they charged what might have been there at the beginning, and then the evidence didn’t support the original counts 1 and 2, so they eventually went away. Now, it is important to know that one of the things he was convicted of, what became the eventual, for the three counts that went to trial on, the counts that had been, the original 3, 4, and 5 became renumbered as 1, 2 and 3, so the amended count 1 and the amended information was assault with intent to commit a felony, and specifically, the felony they’re talking about is rape. So he was convicted a charge of assaulting her with the intention of raping her, meaning penis to vagina.
Jessa: Right. Which, I also understand is being an attempted rape charge.
Nick: That’s right. They’re using way more words than are necessary to say basically that that was an attempted rape.
Jessa: And that charge did carry a lifetime sex offender registry with it upon conviction.
Jessa: It also carried a presumptive minimum sentence.
Nick: Yeah and I was, I’m a little confused by that cause I read a lot about the case and it saying that there was a presumptive three year prison sentence, but when I actually look at that statute, it’s California Penal Code section, hold on a second, California Penal Code section 220(a)(1), it says either two, four, or six years. So, I mean, that’s a different sentencing structure than we have in Wisconsin, but regardless of the amount of time for which there was a presumptive minimum prison sentence, there was a presumptive minimum prison sentence in this case. Not mandatory. Presumptive.
Jessa: Right. And what that means is that you assume somebody, the judge starts with the idea that prison is appropriate and only sentences to not-prison if, and the language of the California statute is if the interests of justice are served by deviating downwards and placing someone on probation.
Nick: Right. And one of the many interesting things about this case is, of course, the reaction to this case. And what happened, one of the many things that happened in the wake of this case was that, legislators changed the law.
Nick: It’s no longer presumptive. It’s mandatory now. And one of the statutes changing the law was written by the elected DA in this county.
Jessa: So that’s where we get. He posts bail. $150,00 bail. I think that because it’s a bail bond state, he probably had to put 10% up that just goes away into the ether and bail bonds post the arrest, is that right?
Nick: It doesn’t go into the ether. It goes into the bail bondsman’s bank account.
Nick: Yeah. But he is released. $150,000 cash bail. That’s secured through the bail bondsman. Bail is a policy issue that you will hear us address in a later subject. It’s one we’ve got real strong feelings about, but for these purposes, the point is, he gets out relatively quickly, from jail, released from custody pending the rest of the case after posting that significant amount of bail.
Jessa: Right. So then, preliminary hearing is hearing. Those top two counts are.
Nick: Yeah, the prelim wasn’t for months later. Did you see that?
Jessa: It took a while.
Nick: Which is also an interesting thing. Just sort of, you know sometimes I think about comparing, like, looking at criminal cases from other states from our perspective here in Wisconsin. And of course, you know, criminal law is one of the areas that is almost exclusively a state matter. But like, you know, are there federal prosecutors? Of course there are. But there is a fairly limited range of topics that there are criminal federal laws on. Most of it is left to the state, and so, we’ve got 50 different states. We’ve got 50 different sets of law, so it’s almost like doing comparative literature. Looking at ours and comparing it to theirs. And I just lost my train of thought, so you pick it up now.
Jessa: Alright. Well, I think what Nick was probably gonna say is, here.
Nick: Oh yeah.
Jessa: If defendants don’t waive time limits for preliminary hearings, if they’re in custody, they have to have it within 10 days. And if they’re out of custody, they have to have it within 20.
Nick: Now thanks for reading my mind. That’s exactly where I was going.
Jessa: Yeah. Well, you know. That’s what I’m here for.
Jessa: So there was probably a choice by defense counsel to
Jessa: waive time limits. And perhaps, you know, I would speculate that maybe part of that was they were waiting for the crime lab to get that DNA evidence back because Brock was telling his lawyer, “I didn’t have sex with her. I know I didn’t have sex with her. There’s no way that my”, you know.
Nick: Yeah. Like, “her DNA will not be on my genitals because my genitals literally never came out of my pants. Like, we did not have penis to vagina intercourse”.
Jessa: Right. And.
Nick: Or, careful. “I did not have penis to vagina intercourse with her unconscious body”.
Nick: That’s a prosecutorial terminology.
Jessa: Yes. You know, and to Brock’s credit, the physical evidence seems to corroborate that.
Nick: Yeah. And so those two charges, you know, it appears to be appropriately dismissed. And that’s fine.
Jessa: Well. So we’ve been talking for an hour. So I think here is a good place to end part 1. Cause you’ve now got a sense of what the crime looked like and we will pick up with part 2 which is what happened at trial and what evidentiary issues occurred there and what happened at sentencing. So we’ll hear back to you, back to you, back from you, whatever. We’re coming right back, just download the next episode to get the conclusion of this, okay?
Nick: And we really hope we will. We’ve been totally heartened to see how many of you folks have been downloading the episodes that exist so far. We really appreciate that. That’s wonderful. Thank you.
Jessa: Yep. And you can follow us pretty much everywhere @gettingoffpod, email us at firstname.lastname@example.org, our Instagram is gettingoffpod. Twitter: gettingoffpod. Patreon: gettingoffpod. Facebook. Facebook group. All of that. Getting off. So we will hear from you in just a second. Alright. Bye.