Jan. 4, 2013

Superior Court Judge Derek Johnson is seen in this undated file photo. (photo: KABC)

y the stated logic of a California judge in 2008, no woman is raped unless she can demonstrate that her "vagina was shredded by the rape" (full text below). The California prosecutor in the case pretty much agreed with the judge, even though they were both misstating California law at the time. And, more than four years later, the California Commission on Judicial Performance voted the lowest possible public penalty for the judge's remarks, mere "admonishment."

When the Commission announced its decision of a mild sanction against Orange County Superior Court Judge Derek Guy Johnson on December 13, 2012, the Los Angeles Times played it as a brief, local story, and the wire services picked it up with similar brevity. The ensuing brief burst of internet posts focused on the judge's horrendous language and his expressed attitude to rape, almost to the exclusion of other issues - such as why were a state judge and a state prosecutor both getting rape law wrong? Or why was a judge citing his own (wrong) opinions as if they were evidence? Or why was this sorry performance only "admonished"?

The initial story was first and best reported in 2008 by R. Scott Moxley of OC Weekly, although there was apparently no media coverage of the trial at the Newport Beach Courthouse in June that year. Moxley came to the case obliquely, in October, when it turned out that the deputy district attorney trying the case was also having an affair with the detective who was one of the prosecution's main witnesses. Moxley, concerned that a vicious rapist might escape justice, wrote that: "... the shameful conduct of certain members of OC's justice system in the case - namely, the judge, the lead prosecutor and the lead police detective - is the real story here."

Jury Convicted on Multiple Counts in Half an Hour

As it turned out, the prosecutorial misconduct was immaterial to the verdict in the case, People v. Metin Reza Gurel, which was upheld by the fourth district California Court of Appeal. After the original criminal trial, the jury took about 30 minutes to convict Gurel, then 43, of committing the multiple crimes of rape, forcible oral copulation, domestic battery with corporal injury, stalking, making criminal threats (three counts), and making criminal threats with a deadly weapon.

Metin Reza Gurel was a married Turkish citizen with a previous domestic violence conviction against another woman. In 2004, he and the victim in this case, identified only as Alicia V., started dating. They moved in together in 2006. She first reported his behavior to the police in early 2007 (threatening her with a knife and threatening to slash her throat with a broken CD). After that, Gurel moved out at Alicia's request, but they continued to date. In September and October 2008, Gurel's behavior became increasingly frightening as he apparently had access to her apartment and to her computer, and started making threats to get her fired from her job or to blow up her car.

On November 10, as the appeals court described it, defendant Gurel:

"... showed up at the restaurant where Alicia was on a date with another man, [he] used the man's name, grabbed Alicia by the face, and said, I've got you now, baby in an angry, hostile manner. Defendant left the restaurant; while standing outside, he looked in at Alicia, and made a slicing gesture across his throat; Alicia was agitated and scared....

"At the end of Alicia's date, she discovered a cell phone message from defendant, warning her to check her car. When she returned to her car, she discovered one of her tires had been slashed. Alicia was afraid to start her car, given defendant's previous threats to blow it up.

"Defendant had also left messages on Alicia's date's cell phone; one of the messages said, go ahead and fuck her...."

Alicia's date is not otherwise identified and apparently played a less than heroic role in the event, leaving her to drive home alone. According to the court, this man received more messages from Gurel during the following week - after Gurel had attacked Alicia - but he told police later that he deleted all those messages without listening to them.

Alicia Went to Talk Sense to Gurel

On her way home alone, and after she got home, Alicia received more that 20 more calls from Gurel, threatening her with violence unless she came to see him right then. She later explained that, although she was scared, she still thought she would be able to reason with him, so she went to see him. According to the appeals court:

"When Alicia entered defendants apartment, she noticed defendant was holding an ASP in his hand. (An ASP is an expandable metal baton carried by peace officers; a civilian must be certified to carry or use one.) Defendant ordered Alicia to sit on a chair; she complied. Defendant began yelling at Alicia.... Defendant poked Alicia in the breast with the ASP, causing a bruise....

"Defendant heated the end of a screwdriver on the stove, and threatened to brand Alicia's face and stick the screwdriver in her vagina to prevent her from having sex with anyone else.

"Defendant smashed Alicia's cell phone, then held a lit cigarette lighter near her face and threatened to burn her face and hair with it. Defendant continued yelling at and threatening Alicia for 45 minutes to one hour.

"Alicia did not say anything during the entire time. She had never seen defendant so angry, and he had never before made such threats ..."

At the time, Gurel also had one arm in a cast and threatened to beat Alicia's face with the cast. She no longer had any thought of reasoning with him, but concentrated on trying to figure out a way to escape from the apartment safely. Gurel forced her to undress, then threatened to burn her with the lighter. Before he demanded oral sex, he threatened to shoot and kill her. At that point, the appeals court wrote,

"Alicia did not believe she had a choice, and was afraid defendant would hurt her if she screamed or resisted, so she orally copulated him. Defendant then engaged in intercourse with Alicia, eventually ejaculating in her mouth. Alicia said no a few times, but did not use force against defendant or scream because she was afraid defendant would hurt her.

"When defendant said he wanted to engage in anal sex, Alicia said no. Defendant did not try to force her to engage in that act."

Alicia Was Afraid to Try to Leave

When Gurel eventually fell asleep, Alicia was afraid to try to leave because she knew he was a light sleeper. He had smashed her cell phone earlier with his illegal ASP. When Gurel woke up, he demanded that Alicia make him breakfast and talked about going with her to her apartment to get her belongings so that she would come to live with him. Somehow Alicia persuaded him to let her leave alone to go to her apartment, but she went first to buy a new cell phone, then drove to the Irvine police department. According to the appeals court:

"Alicia reported defendant's threats from the previous evening. She did not report being raped until a police interview about 17 days later; Alicia thought rape could only be committed against a stranger and could not occur if two people were or had been involved in a consensual relationship."

This was an outdated understanding of California law, which was changed in 1980. The appeals court, citing cases from 1998 to 2005, rejected Gurel's argument in the appeal that he was not guilty of rape or forcible oral copulation on the ground that "there was no evidence Alicia did not consent to engaging in those acts." The court found ample evidence that was "reasonable, credible, and of solid value" to support the conviction:

"The California Supreme Court has defined the evidence necessary to support a rape conviction: The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.

"The Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape....

"The same proof is required to support a conviction for forcible oral copulation.... As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful. (People v. Guido, 2005)"

Court Excuses Alicia's Misunderstanding of Rape Law

The court also found that the 17 days that passed before Alicia told police she was raped was "... reasonable, given her misunderstanding that rape could only occur between strangers." The court pointed out that, at trial, Gurel's lawyer aggressively cross-examined Alicia on this point. And addressing Gurel's argument that he refrained from anal rape shows it was all consensual, the court noted: "That defendant did not sodomize Alicia when she refused to consent does not prove defendant did not rape or force Alicia to orally copulate him."

Immediately after the events, Alicia sought shelter at her sister's home. During that time, Gurel continued to leave angry messages and threats to her and her family, promising to track her down no matter what. Even after he was arrested and jailed, Gurel continued to call Alicia, trying to get her to change her story.

In June, at Gurel's trial, Alicia told her story again and the jury promptly convicted him on all counts - rejecting a defense that argued, in effect, "Well, that's the way we do things in Turkey." The prosecutor was deputy District Attorney Suzy M. Snyder, who had a reputation as a "passionate courtroom advocate for rape victims" (at that time her affair with the detective on the case was not public). At the sentencing hearing, June 20, 2008, she argued that Judge Johnson should sentence Gurel to 16 years in prison (he faced a maximum of almost 24 years).

Exchange at Sentencing Hearing Doesn't Go Well

Judge Johnson rejected the prosecutor's argument and offered a "preview" of what he planned to do: sentence Gurel to six years on Count 1, and six years on Count 2, but have them run concurrently. When the prosecutor asked why "the court is exercising its discretionary power" in this way, the Judge headed down the path that would get him sanctioned, as the transcript quoted by the judicial commission shows (the emphasis is the commission's):

THE COURT: All right. Let me tell you why I'm going to sentence Mr. Gurel to six years only in spite of the People's request for -

MS. SNYDER: Sixteen.

THE COURT: - 16. And that is, I spent my last year and a half in the DA's office in the sexual assault. I've seen sexual assault. I've seen women who have been ravaged and savaged whose vagina was shredded by the rape. I'm not a gynecologist, but I can tell you something: If someone doesn't want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn't necessarily willing, she didn't put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it's an insult. I think it trivializes a rape.

MS. SNYDER: May I respond, Your Honor?

THE COURT: Pardon?

MS. SNYDER: May I respond:

THE COURT: I'm just telling you. We don't need to get into a discussion. You are free to join in, but I'm telling you the reasons why I think this case is worth six years because it's the mid-term. There's nothing in mitigation. There's nothing in aggravation. And it's what the jury has put in front of me.

MS SNYDER: All I wanted to say, Your Honor, was I'm not in any way equating this to a stranger rape, to a forcible rape where she was beaten ... so it's not the People's intention and position to in any way trivialize what we normally consider to be true victims of rape. I just - in speaking with her and seeing her testify, I know that she doesn't feel any less of a victim because she had a relationship with him or she had at one time engaged in sexual intercourse with him. I understand the court's reasoning when you're looking at the cases in comparison, and I understand the court's position on them being the same occasion. The only thing I would ask, and maybe I shouldn't have submitted as quickly as I did, is on count 1 why the court is not finding there to be any circumstances in aggravation to aggravate the term to eight years based on the fact that there were threats involved, there was a weapon involved, and just that there are aggravating circumstances that do apply where not many mitigating do? I was just wondering.

THE COURT: I just found the threats to be technical threats. I found this whole case to be a technical case. The rape is technical. It's more of a crime law test than a real live criminal case. I don't know what more to say.

Judge's Comments Violate Two Ethics Rules

In its December 13, 2012, decision, the commission concluded that Judge Johnson's remarks violated two canons in the code of judicial ethics, because the judge had undermined public confidence in the integrity and impartiality of the judiciary, and because he had shown bias and prejudice against assault victims who, in effect, have suffered less than having their vaginas "shredded by the rape."

The commission also criticized Judge Johnson for relying on his own opinion about "real rape" requiring resistance and bodily injury, when there was no evidence offered in the trial to support such an opinion. (Only three years earlier, in another highly-publicized rape case trial in Newport Beach involving a wealthy deputy sheriff's son and two other young men, the jury heard just such testimony from doctors for the defense - "that the only way an erect penis could enter a woman's vagina and rectum was if she consciously agreed to penetration." The penetration in the Haidl case included a Snapple bottle, a cigarette, and a pool cue. The jury rejected the "expert" testimony and found all three young men guilty.)

Without mentioning the Haidl case, the commission said that Judge Johnson's comments ("if someone doesn't want to have sexual intercourse, the body shuts down" and "the body will not allow that to happen unless a lot of damage was inflicted") were not based on any evidence, which is accurate - but then added that the judge's comments were based "upon his experience in the district attorney's office" - as if the comments actually had some credible basis in fact.

The Commission on Judicial Performance did note that the view the judge expressed from the bench had no basis whatsoever in law since 1980, but the panel chose not to make much fuss about the judicial performance of a judge getting the law wrong. With the opportunity to remove Judge Johnson from the bench, publicly censure him, or issue a public reproval, the commission voted 10-0 for a public admonishment (although they did have the option of keeping it private).

Who Filed Complaint Is Still a Mystery

One of the more curious aspects of this process is that the commission made a point of saying it had not learned of Judge Johnson's comments until May 2012 - but it gave no indication of why it took so long and how they were brought into the loop.

Judge Johnson has reportedly behaved dubiously in other domestic violence cases. In the case of People v. Jeffrey Patrick Haley, in which Haley was convicted of punching, kicking, strangling, and pointing a gun at his girlfriend, Judge Johnson insulted the girl in open court, calling her "a dullard." In another case, convicted killer and woman-beater Terrance Russell was facing California's third strike law for trying to strangle a woman in 2007; even though Russell pled guilty, and prosecutors asked for a sentence of 35 years to life, Judge Johnson ignored the victim's wishes, reduced the two felony charges to misdemeanors, and sent Russell to a local jail for just eight months.

In an odd ruling of quite another sort in 2010, Judge Johnson ordered special meals for an inmate based on the inmate's religious belief in "Festivus," a mock religion popularized by a "Seinfeld" episode.

Judge Johnson has reportedly apologized to the judicial commission, but if there's any public apology anywhere it's still well-hidden.

Rather than an apology, the folks at WatchDog.net are sponsoring an online petition to the judicial commission with 56,839 signatures to get Judge Johnson to leave the bench. Over at Change.org, three more petitions to the commission are seeking Judge Johnson's removal, with 9, 43 and 59 votes. MoveOn.org's similar petitions have been signed three and four times.

Others suggest the judge needs time in a re-education camp - such as a prison, perhaps - where he could develop empathy for the rape experience without having to strain his imagination.

OC Weekly Takes a Curtain Call

Since the flurry of internet comment in mid-December, there has been little follow-up coverage. A blogger at Yale Law and Technology took New York Magazine and others to task for being sloppy and late to the party that OC Weekly first covered four years ago. The one comment on his blog was from Gustavo Arellano, Editor, OC Weekly:

"Gracias for your defense of our paper. Just as background: The OC Weekly is an alt-weekly in Orange County, CA, and the sister paper of the Village Voice. The reporter who broke the news back in 2008, R. Scott Moxley, is an investigative reporting legend - he has sent our former sheriff to federal prison, gotten many politicians out of office, gotten innocent people out of jail, and generally makes life miserable for the comfortable, like the rest of us do.

"We're used to people not paying attention to us, ESPECIALLY in the mainstream media, because the MSM considers OC a backwater with no possible intellect, while the locals despise us because we ARE a backwater. Whatever: we continue being us, and letting everyone else play catchup."

 

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William Boardman runs Panther Productions http://www.facebook.com/pages/Panther-Productions-work-in-progress/135723679847043.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

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