Friday, December 14, 2012
CJP Admonishes Superior Court Judge for Rape Comments
By KENNETH OFGANG, Staff Writer
The Commission on Judicial Performance yesterday publicly admonished an Orange Superior Court judge for making insensitive remarks about a rape victim at the defendant’s sentencing.
Judge Derek G. Johnson’s remarks suggesting that the victim’s lack of resistance and the paucity of serious physical injuries indicated that she wasn’t really the victim of a crime “reflected outdated, biased, and insensitive views about sexual assault victims who do not ‘put up a fight,’” the commission said in a unanimous decision.
The commission rendered its decision following a closed-door meeting at which Johnson, a former sex-crimes prosecutor who has been a judge since 2000, contested the discipline. The judge elected the procedure under CJP rule 116, which permitted him to waive formal proceedings that would have been open to the public.
The public admonishment ends the case, because a judge who proceeds under rule 116 waives the right to petition for Supreme Court review.
Raped Fomer Girlfriend
The discipline stems from a 2008 case in which Johnson sentenced Metin Reza Gurel to six years in prison for the rape of his former girlfriend, rejecting the prosecutor’s request for a 16-year sentence.
Testimony in the case, cited in an unpublished Court of Appeal opinion affirming the conviction, indicated that after the woman ended the relationship, Gurel stalked her, punctured one of her car tires, and on one occasion confronted her at a restaurant and threatened her date.
She later agreed to visit Gurel at his apartment in order to try to convince him to leave her alone. Once she arrived, however, he threatened her, shattered her cell phone with an illegally possessed baton, forbade her from leaving, heated a screwdriver and waved it around her body—threatening to maim her face and vagina so no other man would want to date her.
He subsequently forced her to perform oral sex and raped her repeatedly before ordering her to make breakfast. He then told her she was going to have to live with him, and when she said she would but had to go home to get her clothes, he let her leave and she contacted police and said she had been threatened, although she did not tell them she had been raped until 17 days later.
The jury, after a reported 30 minutes of deliberation, rejected Gurel’s consent defense and found him guilty of rape and six other crimes, including stalking and making criminal threats.
Johnson commented at sentencing:
“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 hear about is an insult to victims of rape. I think it trivializes rape.”
After the prosecutor protested that there were aggravating circumstances, including threats and use of a weapon, the judge responded:
“I found the threats to be technical threats. I found this whole case to be a technical case. The rape is technical. The forced oral copulation is technical. It’s more of a crim law test than a real live criminal case.”
Those remarks, the commission said, violated ethical rules requiring that judges promote public confidence in the impartiality of the judiciary, and to avoid bias or prejudice or the conveying of an image of bias or prejudice.
The commission noted that Johnson apologized when he appeared before it. But it rejected his claim that he had merely been responding to a legal argument on whether the rape and forced oral copulation were “separate occasions” for sentencing purposes, which would have permitted the judge to impose full-term consecutive sentences.
The offensive statements had nothing to do with the issue of “separate occasions,” the commission said, and “[a]t a minimum...constituted improper action.”
Not only did Johnson give the appearance of bias against sexual assault victims, he “improperly relied on his own ‘expert opinion’ concerning serious bodily injury during resistance based on his own experience…rather than evidence before him,” the panel said. It added that the judge improperly substituted his personal views for the law of the state, which was amended in 1980 to eliminate any requirement of proof that a rape victim either resisted or was prevented from resisting by means of threats.
The commission voted 10-0 to admonish the judge, with fellow Orange Superior Court Judge Frederick P. Horn recused.
Johnson was represented by Costa Mesa attorney Paul S. Meyer, who told the MetNews:
“Neither Judge Johnson nor I will have any comment on today’s decision.”
Copyright 2012, Metropolitan News Company