Jason Berlin, a former pickup-artist-in-training currently serving eight years in prison for the 2013 rape of a drunken San Diego woman, appeared again in court today in a rare hearing to recall his sentence.
Dressed in a blue prison jumpsuit, a shackled Berlin was backed by a half dozen family members and a new roster of high-powered attorneys. His victim sat on the left side of the courtroom with an investigator from the District Attorney’s Office.
San Diego Superior Court Judge Jeffrey Fraser told the participants he had not given enough weight to 29-year-old’s early guilty plea and his cooperation with the prosecutors when he sentenced Berlin to the maximum punishment allowable under California law in February. With these considerations in mind, Judge Fraser changed Berlin’s sentence from eight years to six, the next tier in the state guidelines.
Berlin, along with codefendants Alex Smith and Jonas Dick, were all convicted of raping a woman whom The Daily Beast has called Claire in previous exclusive reporting on the proceedings. They were all given eight-year sentences.
In October 2013, Smith and Dick were working as paid instructors for a company called Efficient Pickup, which offered students “rejection proof” training to sleep with any woman. In 2013, Berlin was a paying student who also rented an apartment near the downtown bars for their activities. All three were blogging about their exploits, in online forums dedicated to “Pickup,” part of the misogynistic Internet known as the manosphere.
Dick and Smith met an intoxicated Claire on the street and brought her back to their apartment where Smith raped Claire, then called in Berlin, who did the same. Berlin and Smith later blogged in lurid detail about the incident, documenting how Claire vomited during her rape and how they threw her out the door when she woke up and began to fight back.
At Berlin’s February sentencing, Judge Fraser noted a “high degree of callousness,” to Berlin’s crime. “He made the victim into a sex object.”
What looked to be a quick hearing by a judge with second thoughts on Thursday, turned into a preview of what will likely be Berlin’s appeal, with his lawyers arguing a recent autism spectrum disorder diagnosis made him unaware that his actions were wrong. Judge Fraser threw out a request to retract his 2015 guilty plea citing a lack of jurisdiction, but allowed hours of testimony “for the record” from a forensic psychiatrist who testified that Berlin has the social and emotional capacity of a 5-year-old.
Berlin’s developmental disability made him more of a hapless participant than predator, forensic psychiatrist and autism expert Dr. Denise Kellaher testified, calling him a gullible victim of the pickup artist teachers he paid and offering the opinion that he had learned his lesson. Though she acknowledged there was no research to support her claim, Kellaher testified that in her experience, people with autism like Berlin are unlikely to repeat their crimes.
“Once they realize they made a mistake, they don’t repeat it,” she said.
Kellaher was questioned by New York criminal defense lawyer Mark J. Mahoney, “the most prominent and experienced attorney in the country involved in defending persons with Autism Spectrum Disorder,” according to his website. Mahoney is part of a new legal team—the third counsel acquired by Berlin thus far. Leading his new defense is San Diego’s Judy Clarke, once called “the most ferocious lawyer in America.” Clarke is best known for defending “the worst of the worst,” people for whom the death penalty seems deserved, and saving them from a capital sentence.
Clarke’s former clients include the Unabomber, Ted Kaczynski; Susan Smith, who drove her car into a lake to drown her children; serial bomber Eric Rudolph, whose bombs killed three and injured more than 100; Zacarias Moussaoui, convicted for conspiracy in the September 11 attacks; Jared Lee Loughner, who shot Congresswoman Gabrielle Giffords and 18 others outside a Tucson shopping center, killing six; and most recently Dzhokhar Tsarnaev, her only client to receive a death sentence, handed down for the 2013 bombing of the Boston marathon which killed three and injured hundreds of others.
Clarke rarely gives interviews—and did not return a request from The Daily Beast—but has said of her guiding principle, “None of us, including those accused of crime, wants to be defined by the worst moment or the worst day of our lives.”
Clarke sat beside Berlin at court, in a dark grey suit and trademark green and blue flowing watercolor scarf. She whispered to Berlin and passed notes to Mahoney as he questioned the witness.
The victim stood and spoke to the court, turning to face Berlin at one point, who did not look up to meet her gaze. Claire spoke for 10 minutes, urging Judge Fraser not to reduce his original sentence. “I’m scared this ASD diagnosis will be the excuse all pickup artists will use in the future,” Claire said, adding that she was “absolutely offended” at the notion that Berlin wasn’t aware that his actions were wrong.
“To have this passed off as Jason's first mistake is insulting. ‘There’s a learning curve. He just didn't have the social experience, but don't worry, he'll do better next time. He now knows it's a rule to not rape a person while they are physically sick or not moving.’ Does he know that murders are wrong? How about mass shootings? Terrorist attacks? Will he obtain a "get out of jail free" card for those first offenses?”
Following Mahoney’s closing remarks, Clarke indicated Berlin wanted to speak.
“I’ve learned a lot about myself and I now know that I’ve got a long way to go and I need professional help. I understand that I hurt [Claire] and I’m very sorry for what I did,” Berlin said, cupping his head in his hands and sobbing.
It was nearly 5 p.m. when Judge Fraser gave a long sigh and announced his decision to reduce Berlin’s sentence. Rejecting the defense’s argument for probation—that Berlin suffered during his time served without treatment, and would continue to suffer because of a lifetime as a registered sex offender—Judge Fraser agreed to the six-year term originally proposed by the District Attorney.
“Sentencing is not about revenge, it’s about punishment, Judge Fraser said before announcing Berlin’s reduced sentence. “I hope that one day the victim will understand that.”