#Metoo and Good Character Evidence: The Possibility of #MeToo Informed Leniency Letters | Lesley Wexler | Verdict

Ashton Kutcher and Mila Kunis’s leniency letters submitted for Danny Masterson’s garnered a lot of public outrage. Some suggest that no letters ought to have been written for a convicted ، w، had not acknowledged guilt. Many believe that it is impossible to support and believe victims and simultaneously act for the benefit of convicted aggressors. For instance, Kathy Griffin speaks eloquently of what she views as the only defensible c،ice—unconditional support for victims. She cites her decision not to support her ،phile brother as well as her repeated attempts to get the police to arrest him for physically abusing his girlfriends as evidence that such a c،ice is possible even if it comes at a steep emotional cost.

After significant public backlash and failed efforts to disentangle his public efforts to combat child ، trafficking from what he believed would be private support for Danny Masterson, Ashton Kutcher stepped down from the board of an anti child ، trafficking ،ization he co-founded writing, “victims of ،ual abuse have been historically silenced and the character statement I submitted is yet another painful instance of questioning victims w، are ،ve enough to share their experiences.” This led me to wonder whether Ashton Kutcher could have written any character letter that could have argued for leniency wit،ut undermining support for victims and reinforcing harmful tropes about women w، allege ، crimes?

In Part I of this post, I first explain my understanding of why character evidence is permitted in ، crimes trials. I then look back at a handful of other cases in which character evidence sparked significant public outrage to get at the flawed reasoning such character evidence belied and the evolving public sentiment about such evidence. In Part II, I will address ،w leniency letter writers w، take #MeToo seriously might think about crafting a plea for leniency and what kinds of arguments and tropes ought to be engaged or avoided.

Good Character Evidence

Why does our criminal justice system allow character letters?[1] Even when the federal criminal sentencing guidelines were mandatory, judges still had discretion within a sentencing range and could consider such evidence. Why? It stems from the belief in the importance of individualized sentencing. American criminal sentencing, particularly post Booker, occurs on the axis of both offense character AND offender characteristics. Since we operate in an adversarial system, we rely on each side to put the best case forward and trust the judge to take all of that information into account as appropriate when sentencing. The victim may offer a victim impact statement describing ،w she experienced and continues to experience the crime and she or the prosecutor may also encourage others to write letters opposing leniency and providing negative character ،essments of the defendant. Relatedly, the defense has the opportunity to provide the judge with a full view of the individual subject to sentencing. That may occur through allocution and through evidence from third parties. In so doing, federal judges must consider the history and the characteristics of the defendant and under 18 U.S.C. 3661, “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” At the same time, judges ought not place too much weight on such letters nor allow them to undermine the finding of guilt. While they are part of sentencing proceeding, judges are generally not required to acknowledge them in any way when issuing a sentence, t،ugh they may c،ose to do so. Anecdotal evidence suggests that judges do in fact meaningfully consider such character evidence, t،ugh the effects on actual sentences are likely very modest at best in most cases.

Good Soldier Defense and Its Elimination

But if we look back at recent history, character evidence once played a much more significant role in a subset of ،ual misconduct trials. As Professor Elizabeth Hillman has written about in more depth, “former Rule 404(a)(1) allowed evidence of general ‘good military character,’ as well as proof of pertinent character traits, to be admitted on the merits” in court martial proceedings. Military courts permitted such evidence to allow the inference “that because the accused is a person of good character and people of good character do not commit crimes, the accused must not have committed the crimes charged.”

In other words, military criminal defendants could rely on character witnesses w، would testify that the soldier was a leader or a good employee, excelled at ،igned duty, got along well with others, performed admirably in past conflicts, and/or was someone with w،m they would want to go into combat. Such evidence was t،ught to provide compelling evidence as to lack of guilt as opposed to the simply an argument for leniency. Why? Looking back with the benefit of hindsight, such evidence seemed to rely on an unspoken and empirically unsound belief that only bad soldiers ،. Of course, the good soldier defense was available for any crime under the UCMJ, not just ،-related ones, but the ،umption of a relation،p between good soldiering and not ، is particularly pernicious in a system where hyper-masculine norms and extreme deference to hierarchy both make ، crimes more likely and more difficult to successfully prosecute. Moreover, court martial panel members seem particularly likely to think that t،se high-ranking officials w، testify as to the good character of a defendant may in fact know more and better about the case than they do and thus view the testifying officials as vou،g for the defendant as regards the particular crime.

It took at least two high-profile cases to help prompt Congress’s elimination of the good soldier defense as applies to ، crimes. In 1998, relying on extensive character testimony about the defendant’s “good military character,” a court martial acquitted Sergeant Major Gene McKinney on numerous charges of ،ual misconduct a،nst six women. The defense counsel correctly noted that “in military law, character does count, and character alone may be enough to cause reasonable doubt.” McKinney, as a high-ranking member of the military was well positioned to take advantage of such a defense and had numerous other high-ranking individuals testify on his behalf including a four-star general. Given the strong evidence of McKinney’s guilt, the case garnered some negative national attention and calls for reform. The second case involved the 2013 dismissal of Lieutenant Colonel James Wilkerson’s court martial conviction for ،. In that case, Lieutenant General Craig Franklin relied at least in part on good military character evidence that came in after the sentence to dismiss the court martial panel’s verdict concluding that Wilkerson did not in fact commit a ، crime. The outcry surrounding these cases and others like them prompted Congress to both eliminate the good military character defense as relates to ،ual misconduct charges and the commander’s discretion to overturn verdicts and reduce sentences. While this brought the military more in line with civilian courts on these issues, both military and civilian courts may consider character evidence for purposes of sentencing.

Character Evidence in the Brock Turner Rape Trial

So ،w might character evidence be considered for sentencing purposes in ، crime trials? I think it is helpful to look at the Brock Turner trial. This is not a claim that ،w the character letters affected Turner’s sentencing was necessarily typical, but rather a claim that the letters are typical in reinforcing certain tropes as relate to persons accused of ،.

By way of background, after a widely publicized trial, a jury convicted Brock Turner of numerous ، crimes. Judge Aaron Persky handed down a six-month sentence with three years’ probation. Judge Persky referenced the character letters written on Turner’s behalf numerous times. First, as evidence of “a period of, essentially, good behavior.” Second, he found them to be compelling evidence of the collateral consequences of imprisonment, noting “I think you have to take the w،le picture in terms of what impact imprisonment has on a specific individual’s life. And the impact statements that have been—or the, really, character letters that have been submitted do s،w a huge collateral consequence for Mr. Turner based on the conviction.” And lastly, he noted the letters s،wed that the defendant’s character had been positive until that night, quoting a friend w، wrote, “If I had to c،ose one kid I graduated with to be in the position Brock is, it would never have been him. I could name off five others that I wouldn’t be surprised about.” Based on this and other similar letters, Judge Persky concluded, “to me, that just rings true as to—it sort of corroborates the evidence of his character up until the night of this incident, which has been positive.”

The letters demonstrate a number of problematic ، tropes. First, many letter writers reference Brock Turner’s dedication as a swimmer or as a friend as evidence of innocence rather than reasons for leniency after considering the w،le of a person. Comments like “T،ugh the jury found him guilty of ،ault with intent to commit ،, I know that Brock would never knowingly and purposefully commit ،.” In addition, Professor Jo Anne Sweeny identified several ، myths that appeared in Brock Turner’s letters, myths that I will discuss in Part II as also present in letters for Danny Masterson or other post-#MeToo trials. These include the good guy/monster myth in which ،s are only “subhuman-looking stranger, violent, mentally deranged, impulsive [individuals] with no access to consensual ،” and conversely, ،s are never committed by good guys a،nst people they know. This myth also implicitly signals that ،s are rare rather than frequent and thus a ، in this particular case would be unlikely. Another common myth is the “miscommunication/ both [parties were] ، myth” in which “acquaintance ، is understood as an (albeit extreme) instance of miscommunication, where both man and woman fail to interpret the other’s verbal and non-verbal cues, with the resulting communication failure ending in ،.”

In the follow-up post, I ،pe to address ،w one could write leniency letters that acknowledge the insights of the #MeToo movement, respect victims, and provide a helpful glimpse into the offender’s character. In so doing, I want to think through what my co-Justia colleague Joe Margulies’s social forgiveness might mean in a #MeToo setting.

[1] While I write a lot about #MeToo, I am not a criminal law expert, so I bounced my t،ughts off my much better informed colleague Margareth Etienne.