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The argument is one of five presented by Turner’s new attorney Eric Multhaup in a new 172-page appeal seeking to clear his client of a conviction stemming from the January 2015 assault of a 22-year-old woman at Stanford University.
Turner’s decision to appeal re-injects the woman — known to the public as “Emily Doe” — and a host of prosecution and defense witnesses in California and Ohio back into the national maelstrom surrounding the trial and sentencing.
The appeal also gives Turner, now 22, an attempt to shed his lifetime status as a sex offender, while avoiding the potential of a heftier sentence under a new trial.
"Under the California constitution, double jeopardy would generally preclude him from receiving any harsher sentence than the one he has received," said Stanford University law professor Michele Dauber, a friend of Doe who is leading an effort to recall the judge who sentenced Turner.
‘Victim-blaming garbage’
Dauber blasted Turner’s appeal brief, calling it “victim-blaming garbage” that is “re-victimizing Emily Doe, which is appalling.” She believes Turner “never took responsibility for his crime, and he never expressed real remorse.”
“Now we have 172 pages of the same victim-blaming, victim-shaming nonsense that he presented to the jury,” she said. “He didn’t do well with the jury, and now he’s rehashing it in front of the appeals court to see if they’ll buy it.”
The Sixth Appellate District Court denied a motion to accept Turner’s 36,442-word brief, which the court called “oversized,” according to the docket. His attorney was granted a 15-day extension to refile.
Multhaup declined to comment or make Brock Turner available for this article.
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A jury found Turner guilty in 2016 on three felony counts: assault with intent to commit rape of an intoxicated or unconscious person, penetration of an intoxicated person, and penetration of an unconscious person.
He was sentenced by Judge Aaron Persky to six months in jail, but served three months of the sentence.
Turner is serving a three-year probation and, having now returned to his parents' new residence in Greene County, is a Tier III sex offender in Ohio, according to Ohio's sex offender registry. The designation means he is required to register with the county every 90 days.
In separate letters to Persky before sentencing, Turner’s parents expressed frustration with this designation.
“Brock will have to register at the highest tier which means he is on the same level as a pedophile/child molester,” Carleen Turner wrote.
“The fact that he now has to register as a sexual offender for the rest of his life forever alters where he can live, visit, work, and how he will be able to interact with people and organizations,” added Dan Turner.
Dayton-area witnesses
Four character witnesses who knew Turner in Ohio were called by his defense team during trial.
Those four witnesses — friend and fellow swimmer Andrew Cole-Goins, ex-girlfriend Lydia Pocisk, swim coach Gary Galbreath, and swim coach and former Oakwood High School teacher Jennifer Jervis — each testified. None agreed to comment for this article.
Turner also testified as his own witness and was cross-examined about inconsistencies between his statement to a detective after the incident and his testimony in court, according to the appellate brief.
Multhaup argues the court erroneously restricted the testimony of the four character witnesses “to the trait of sexual non-aggression relevant to his conduct at the time of the offense … and excluded it as to appellant’s honesty and veracity.”
“In light of the prosecutor’s sustained assault on appellant’s credibility, he was entitled to present countervailing extrinsic evidence, and the erroneous exclusion of that evidence cannot be deemed harmless,” Multhaup wrote in the court filing.
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In other words, Turner claims he was not permitted to “rehabilitate” his honesty after the lengthy cross examination, said Tom Hagel, University of Dayton School of Law professor emeritus.
“He gets up there, he testifies, the cross examination tries to show there’s holes in his testimony,” Hagel said. “Only after that can the defendant call witnesses on his own behalf to try to ‘rehabilitate’ him, it’s called, where they (the character witnesses) get up say, no, we’ve known him for 20 years and he’s always told the truth.”
Dale Nance, a Case Western Reserve University School of Law professor, said the argument raises “one of those complicated areas of the law” that draws a distinction between Turner as a defendant and Turner as his own witness.
“As a defendant, he’s entitled to put on character witnesses to show he’s not the type of person who would assault women,” Nance said. “He’s also entitled as a witness to defend his character if he is attacked.”
“The prosecution did attack his testimony and give reason to suspect he is lying. Those things are not an attack upon his character, they’re an attack on his testimony,” said Nance, who earned a law degree at Stanford, but is not involved in Turner’s case. “So the question is, when the prosecution attacked his credibility, were they also attacking his honesty?”
“In my own mind, this is probably not going to be a successful argument.”
‘Behind the dumpster’
Multhaup argues there is insufficient evidence of the three counts and argues the court failed to try Turner on lesser charges. He also argues the court “failed to adequately respond to a critical jury question during deliberations,” according to the brief.
Multhaup also claims the prosecution “malevolently” used the phrase “behind-the-dumpster” to describe the location of the incident because it implied Turner wanted to shield the incident from view and because “it implied moral depravity, callousness, and culpability on the appellant’s part…”
“The image that the sexual contact occurred ‘behind the dumpster’ implies a sordid and debasing interaction in a place where no woman would voluntarily engage in sexual contact,” Multhaup wrote. “The prosecutor’s campaign to instill in the jury the image of the offense as have occurred in a squalid and hidden area behind a dumpster must be viewed as both factually unsupportable and malevolently designed to taint the jury” against Turner.
Dauber laughed when asked about Multhaup’s claim that her sentencing letter to Persky — she wrote Turner assaulted Doe “in public” — is “diametrically different” from the prosecutor’s “behind the dumpster” characterization.
“I think it shows how desperate they are,” she said. “The jury saw pictures of the crime scene and understood exactly where the crime occurred.”
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