Legal Aspects of The People v. Brock Turner

Many non-lawyers do not know what an in limine is (pronounced in limnay). From the Latin, it literally means "at the start", or, "on the threshold". It is a motion, discussed between judge and counsels, outside the presence of the jury, to request that certain testimony and/or evidence be excluded. Chanel Miller, in her own words, is conflicted about her narrative, torn between the facts of evidence and her own feelings. She was in a walking blackout state from 11:50 to around 12:30, when she passed out. Her feelings of violation depended on complete reconstruction of events, once she woke up around 4 AM in the Emergency Room. Until then she was unable to form any memories. It is likely she agree to press charges in order to save face, to send a signal it was not consensual. And yet, even she could not rule out this posssibility, as she stated in the police report. In the People v. Brock Allen Turner, Turner (age 19) was found to be twice the legal alcohol limit (BAC .17) and Chanel Miller (age 22) scored a Blood Alcohol Content (BAC) of .23-.26 (3 times the legal limit). We know from the Police Report that Chanel Miller admitted that she could not remember anything after 11:50 PM. We also know there was a lot of activity after 11:50: several phone calls were made...up until the time of 12:30 AM. She admitted (in the police report) to having started drinking around 8:30 PM . She later changed this version of events to 10:00 PM when cross examined on the stand. In the Police Report, she admitted to a long history of binge drinking, saying “I've never had any problems before.” Neurologists define her condition as alcohol-induced anterograde amnesia, essentially a walking blackout drunken state. Seemingly normal, conversational, often dancing, speaking in a relatively coherent fashion...yet unable to form short-term memories of anything taking place. A large body of expert analysis exists on this. Blackout is a different condition than pass out. Once Chanel fell into unconsciousness (sometime after 12:30 AM), she remained in a coma-like state for some 4 hours beyond that. We also know there were many discrepancies between the People's Complaint narrative and the Police Report in multiple ways, but also with respect to Chanel's confidence in police and other first responders. Before trial, the prosecution crafted the “People's Motions In Limine”. Of particular interest is the 13th in limine, for without it, there would have been sufficient reasonable doubt to question proceeding with the prosecution. By her own admission, Chanel Miller could not remember whether or not she might have consented (to going back to Turner's dorm room). The prosecution used the John Z. standard of “No means no”. This could not have applied in this case given that Chanel Miller was passed out, could not remember, hence could not rule out, her possible consent. The 13th in limine served as the core building block for the manufacture of the People v. Brock Allen Turner. Citing a 1976 case, the People v. Kelly, prosecutor Alaleh Kianerci, wrote in the 13th in limine, The People specifically object to Dr. Fromme's testimony because it has not been established that alcoholic blackouts are generally accepted in the scientific community. From the year of this case (2015) and the 1976 cited case there is much consensus in the scientific community involving alcohol-induced blackout. The key here is, the prosecution needed this in limine granted just to have a case. Prosecutor Kianerci further explained, citing a 1956 case (People v. Cole), “The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness, or whether...that opinion of the expert would assist the trier of fact.” The medical inference was simply that Doe's blood alcohol level was between .23-.26 at the time she passed out. The prosecutor further says that these facts would prejudice the jury and shame the victim. Really? This would likely have eliminated this case. According to the Police Report, Brock Turner waived his Miranda rights and confessed that he and Chanel Miller were in mutual agreement, about returning to his dorm room. It was late, around 40 degrees outside, both were legally drunk. To him, he sincerely believed that everything that occurred was consensual. And so, to clear up this misunderstanding, he voluntarily spoke openly to the questioning officer, Detective Mike Kim. Why would Turner be so open and waive his rights unless he sincerely believed it was consensual and that he was innocent? The prosecution's use of the 7th in limine turned his full admission and testimony to the officer against him, and then deemed it hearsay evidence, thereby inadmissible. The jury never saw this. The 7th in limine also converted Turner's immediate drunken confession to the interrogating officer Kim to hearsay, weapon used by the prosecution. And, given his .17 Blood Alcohol level，he was in no condition to confess absent counsel especially to Detective Kim (who ultimately was acting as a D.A. Investigator), which should have waited and insisted he have counsel present. So, Turner waives his Miranda rights (without counsel), thinking that this entire event was consensual and he simply wants to explain, to clear up any misconceptions. Instead, his drunken honesty is immediately turned against him. So, nothing he voluntarily admitted (unfiltered) could be admitted toward his defense. He was hamstrung. Here he was speaking openly, after waiving his Mirandas, and nothing that he says is allowed to be admitted into trial evidence. His trial defense failed to challenge any of this strategy. Let's move back to the 13th in limine to examine just how insidious and how flawed it was. We know from the police report that there was insufficient evidence to charge rape. The scheme then became to charge attempted rape. And yet, both Turner and Emily Doe were so completely intoxicated that neither of their recollections were allowed as evidence in court. Instead, the prosecution would rely instead on witness testimony that began at 12:55 am, at least 25 minutes after she had passed out. Between 12:30 and 12:55 am, there is a total blackout. No cameras, no phone activity, no witnesses. Moreover, Emily Doe, upon awaking fours later at an emergency room believes she was at a Stanford Campus recovery “Drunk Tank”. Her expectation was that she had been found drunk, unconscious and had been removed to a recovery site. A number of questions arise: Why didn't the Police and D.A. treat this like any other ordinary campus drunken frat party hook-up gone wrong? Were other underlying political motivations possibly at work, behind the scenes? Why did Emily Doe need to make a phone call to answer Det. Mike Kim's question (Do you want to ask for a rape charge?). Who did she call? Why wasn't her cell phone record for that call introduced as evidence? The details of this call disappeared. It is unclear, even after Emily Doe's phone call before answering the police officer's proffer, that she herself understood the vast impact of what her saying yes would mean. She could not have anticipated the roaring machine of Michele Dauber's minions that were soon to be unleashed. It also raises the question of why Officer Mike Kim asked this question so early in the process before other evidence feedback had come back into the loop. Was there a motive? The 13th Motion in Limine initially denied by Judge Persky, was soon answered by the prosecution with a request for a 402 “Daubert” hearing, wherein the expert was formally challenged, before being able to face the jury. (TT #8) Kianerci asks: “From the the beginning, Ms. Does reached sufficient levels of alcohol intoxication to blackout due to alcohol. But she would not have reached the level of alcohol intoxication typically associated with passing out or losing consciousness. Aren't these two inconsistent?” Dr. Kim Fromme: “No, they're not...” (pg. 37, TT#8) Still prosecutor Kianerci kept hammering away at this argument, to confuse the non-expert jury. She sought to frame this case as some exception, to discredit Fromme by applying a rigid chart definition. BAC of .30 or above equals pass-out; less than this is blackout. She tried to blur the lines. Alcohol blackout is not observable at the time it occurs. It can only be inferred retrospectively based on corroborable observances and activities such as phone calls, purchases, sexual relations, etc. that are not remembered. There is a large body of expert literature that covers this, in all aspects of living situation. One's history of alcoholism is a major contributing factor to blackout. Hence, supporting evidence would be one's history of drinking and blackout. Chanel Miller's prior history was excluded using in limine #11. Although this referred specifically to sexual history, it also included previous drinking and possible blackout episodes. Quotes from the Trial Transcript: ..."timeline followback." It's considered the gold standard in the alcohol field for being able to study the effects of higher doses of alcohol.(TT #8, pg. 126) Kianerci: “And you would agree that seeing her would help you make an assessment about whether she's in an alcoholic blackout or not?” Fromme: “No. There's no observable evidence that someone is in a blackout. So having -- if I saw her, I -- that would not help me make that decision, no.” (pg. 128)(Note: the prosecution failed to prove that Turner, given his .17 BAC, could have known Chanel was in a walking blackout state.) Kianerci: “You have no way of knowing when somebody goes from an alcoholic blackout to becoming unconscious. Isn't that true?” Fromme: “That is true.” (pg.128) Kianerci: “You have no idea or you cannot tell us at what point someone goes from a blackout to a passout?” Fromme: “No, ma'am, I cannot.”(page 140) Armstrong: “You were asked a question by Ms. Kianerci as to whether you could determine whether any person at a particular moment went from a blackout to being unconscious, right?” Fromme: “Yes.” Armstrong: And you said you couldn't determine that; correct? Fromme: That's correct. No one could. Armstrong: To your knowledge, with all the knowledge you have in this field, is there anybody that could determine that? Fromme: No, not to my knowledge. Armstrong: Have you spoken with other experts in the field -- your field of alcohol and its effects on memory and those kinds of things -- about whether they testify as experts and what their fees are in relation to yours? Fromme: Yes, I have. (Pg. 141-143) Key questions remain: Why did Mike Armstrong—-Turner's defense counsel--focus primarily on Chanel's .245 BAC? Why not more emphasis on Turner's .17 BAC? It would have changed the defense from a Possible Consent case, to a Voluntary Intoxication case (which would have eliminated the intent to rape, intent to commit sexual assault, etc.). Why did the trial court fail to raise this matter, either in pre-trial and during jury instructions? The Trial Transcipt is very clear: this subject was never voiced. The court has no sua sponte duty to instruct on voluntary intoxication; however, the trial court must give this instruction on request. (People v. Ricardi (1992) 9 Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364]; People v. Castillo (1997) 16 Cal.4th 1009, 1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Saille (1991) 54 Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Although voluntary intoxication is not an affirmative defense to a crime, the jury may consider evidence of voluntary intoxication and its effect on the defendant’s required mental state. (Pen. Code, § 29.4; People v. Reyes (1997) 52 Cal.App.4th 975, 982–986 [61 Cal.Rptr.2d 39] [relevant to knowledge element in receiving stolen property]; People v. Mendoza (1998) 18 Cal.4th 1114, 1131–1134 [77 Cal.Rptr.2d 428, 959 P.2d 735] [relevant to mental state in aiding and abetting].) The parties bringing this rush to judgment: did they have an agenda going in? Turner's Title IX case was sealed by Stanford. And it's a key component because technically Stanford had a duty to conduct its own independent investigation of this incident. Remaining Issues: (1) Even assuming there was no evidence tampering, there still was a lack of evidence to bring this case. (2) Given the pretrial prejudice, Why did Armstrong not motion of a change of venue? Why did the D.A. withhold DNA evidence that went unchallenged by the defense? (3) Motions in Limine: why was his testimony to police deemed hearsay? Why was her testimony to police deemed hearsay...without objection? (4) The 402 Daubert challenge (TT#8): afterward, why didn't Armstrong ask that the challenge itself be entered into evidence for the jury to see? (5) When the two rape charges were dropped at the October 2015 preliminary hearing, why wasn't the 29.4(b) raised to get the remaining 3 charges dropped/consolidated? (6) Could this have been entered as a jury instruction, in terms of finding lesser charges? (7) What reversible errors did Persky make in light of Armstrong's error? Both Persky and Armstrong knew this would go to appeal. (8) What liability does Stanford have for the Title IX failure? Did Michele Dauber's direct involvement with the D.A. while a Stanford employee, create residual liability for Stanford? (Note: all the emails)