Judge not, lest ye be judged

Should California-elected judge Persky be recalled because of his sentence to convicted rapist Brock Turner?

By Sarah Sidlow

Ninety-five thousand. That’s a conservative estimate of how many signatures were submitted in the campaign to recall Judge Aaron Persky of Santa Clara, California. What’s the reason for all the petition signing?

You may remember Judge Persky from his 2015 appearance in People of the State of California v. Brock Allen Turner, a criminal case filed in Santa Clara County Superior Court which convicted a (at that time) Stanford student athlete of three felony counts of sexual assault. Turner, an Oakwood, Ohio, native, sexually assaulted an intoxicated, unconscious woman outside a Stanford campus fraternity party. Persky sentenced Turner to six months in the Santa Clara County jail, and three subsequent years of probation. After three months, Tuner was released from jail and sent back to Ohio.

That didn’t go over so well with, like, a ton of people, who accused Persky of drinking the privileged white male Kool-Aid, and essentially handing Turner a slap-on-the-wrist sentence for a really horrendous act of sexual violence.

If Persky is recalled, it would be the first time a California judge has been kicked to the curb in a recall election in over eight decades.

Commentators on this Persky business can easily draw parallels between the recall effort and today’s social environment of heightened sensitivity to sexual assault and its victims (see also: Harvey Weinstein, #MeToo, any newspaper).

If you haven’t noticed, there’s a growing sentiment and deep concern over the seriousness of sexual assault instances—and those involved in the movement view slap-on-the-wrist cases like Turner’s as part of the problem.

Yet there are many who view the recall effort as misdirected energy. Instead of focusing on Persky’s decision, they argue, why not take a look at why police departments or colleges don’t do more to investigate rape cases?

Plus, many argue, ousting Judge Persky could set a dangerous precedent on the issue of judicial independence. That is to say, judges can’t do their jobs effectively if they are worried about obliging  public opinion toward themselves or the cases they hear. Persky supporters, including 30 Stanford law professors, also argue that Persky’s sentence was perfectly lawful, and even correlated with the recommendations made by a probation officer.

Turner will be registered as a sex offender for the rest of his life. That means he’ll face limited residence and employment opportunities, face child custody challenges and a loss of privacy, and basically always be infamous for being Brock Turner.

Recall supporters need at least 58,634 valid signatures from Santa Clara County voters to qualify for the election, which takes place on June 5. And if the recall does qualify, the question of who will replace Persky will appear on the same ballot.

And how’s this for some late-game drama: Persky has asked a state appellate court to block the election entirely, regardless of how many certified signatures they have. As they see it, since Perksy is technically a state officer, the California secretary of state, not the county registrar, should oversee the petition drive. But the 6th District Court of Appeal said “no” to Persky’s request to fast track the election block, which may indicate that the justices aren’t interested in Persky’s side of the story.


Get Him Outta Here!

California Recall Movement Gains Momentum

By Tim Smith

We seem to be living in an age of bad decisions and “What were they thinking?” moments, from inflammatory online posts to questionable court rulings. A recent grassroots movement in California revisits the sentencing of Dayton’s own Brock Turner, who was convicted of sexual assault of a fellow Stanford University student in 2016.

The State of California v. Brock Allen Turner was a 2015 criminal case filed in Santa Clara County Superior Court, which convicted Turner of three counts of felony sexual assault. On June 2, 2016, Santa Clara County Superior Court Judge, Aaron Persky sentenced Turner to six months of confinement in the county jail to be followed by three years of probation. Additionally, Turner was informed of his lifelong obligation to be lawfully registered as a sex offender. Citing overcrowded jail conditions, Turner was released after three months and returned to his family home in Sugarcreek Township. 

The statutory maximum sentence was fourteen years. Prosecutors sought a six year term, while the Santa Clara County Probation Department recommended a six month term. Following the controversy, the Associated Press analyzed 20 cases where Persky had passed sentence since January 2015 and found that he had followed the sentencing recommendation of the probation department every time.

The sentencing sparked national outrage among victims’ rights advocates, and resulted in a drive to recall Judge Persky in an upcoming election. The campaign has collected nearly 95,000 signatures, which is far more than is required to get it on the ballot. If Persky is recalled, it will be the first time a California judge has been ousted in a recall election in 85 years. Only four judges have been recalled in California history, one in San Francisco in 1913 and three on the same ballot in Los Angeles in 1932. 

Persky has dug in his heels and is girding for a fight. He has raised over $300,000, nearly two-thirds of which were in free legal services and other non-monetary contributions. Recall backers have raised more than $700,000, less than 2 percent of which was in non-monetary contributions. 

There are some judges and elected officials who seem to think that their decisions and actions aren’t subject to scrutiny. This is not the case, which is why we have appellate courts and peer review panels. It’s called the system of checks and balances, and it’s there for a reason. For an elected judge to think that his actions are above reproach simply because he has the title smacks of arrogance. As proof, look at Judge Roy Moore, who hid behind his judicial robes while allegedly trolling shopping malls for teenaged girls. 

Some might argue that Persky’s decision was reflective of the era he came from, where sexual conduct on college campuses was viewed differently, with an attitude of “that’s just the way it is.” That defense didn’t work for Harvey Weinstein, and it won’t work for Persky, either. Of note is that Persky had also been a Stanford student and was captain of the Lacrosse team. Since Turner was attending the university on a swimming scholarship and came from an affluent family, could this have influenced the outcome? 

Critics of Persky’s decision accused him of judicial bias in favor of men and class privilege, and it wasn’t the first time the issue came up. In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza College baseball team, who were accused by a minor plaintiff of sexually assaulting her while she was unconscious. The victim sued the team, claiming post-traumatic stress disorder. During the trial, Persky decided that the jury should be allowed to view photographs of the plaintiff taken at a party she attended approximately a year after the alleged incident, bolstering the defense’s assertion that this evidence contradicted the plaintiff’s claims. The jury found the defendants not liable. 

Fallout from Persky’s decision in the Turner case was swift. In June 2016, at least ten prospective jurors refused to serve in a misdemeanor trial for possession of stolen property where Persky was presiding, citing the judge’s sentencing of Turner as a reason. The following week, a prosecutor filed a peremptory motion to recuse Persky from presiding over the criminal trial of a surgical nurse charged with sexual battery. The wagons officially began circling. 

Persky’s decision likely didn’t provide much comfort for the victim. It also stoked the fires that have been burning for years about the increase of campus sexual assaults, and the less-than-satisfactory way these allegations are often handled. Advocacy groups jumped on his ruling as one more example of giving deference to the accused while ignoring the rights of the victim, especially when the accused is a star athlete from a “good family.” During sentencing, Persky said he considered the “severe impact” of imprisonment on the defendant’s life. What about the severe impact on the victim’s life?

Since Judge Persky doesn’t have the fortitude to admit that he made a bad ruling and step down, a recall election would make the decision for him. Since the recall effort started, Persky began an assignment he can do from home, out of the direct public eye. He is now the “night judge,” meaning he’s on call 15 hours a day, five days a week, from 5 p.m. to 8 a.m. to respond to a variety of requests and emergency restraining orders.

See you at the polls, Your Honor. 


Recalling Principles

Aaron Persky should stay put

By Ben Tomkins

The movement to remove Brock Turner judge, Aaron Persky from the bench will likely trigger a recall vote later this year. It has been spearheaded by Stanford law professor Michele Dauber, who seeks to replace him with a female judge, and is carried on in the face of stern criticism from a legion of decorated female legal figures in California. With the exception of Persky and Turner, everyone, on both sides of the aisle, is a woman. This collision is significant not only for judicial independence, but as a moment of reckoning between the forces of reason and extremism within the women’s movement itself. 

Dauber had taken to Twitter in the months leading up to the triumphant march into the Registrar of Voters office in the County of Santa Clara with 94,000 signatures, to drum up support for the recall vote of Persky. She excoriated his record in the media, saying, “He does not understand violence against women and he does not take it seriously. The voters…will hold judge Persky accountable for his pattern of bias in favor of athletes, and other privileged offenders who commit sex crimes and violence against women.” She has cited two other examples during his tenure as “terrible and biased.” A little time on her Twitter feed is like reading greatest hits of far-left liberal propaganda, and I’m a dedicated, lifelong liberal saying this. It creeps me out. 

However, this is not about me and my feelings. It creeps out a lot of high-profile women in California’s judiciary and law schools too. In the open letter written and signed by over 30 women law professors at Berkeley, USC, Santa Clara, UC Davis, UCLA and her own female colleagues at Stanford, opponents of Persky’s removal declare that “Rather than take on the difficult democratic work of seeking to change the law that confers sentencing discretion upon judges, or filing a complaint with the independent state agency charged with investigating and punishing judicial misconduct, the recall movement seeks to make Judge Persky and all other California judges fear the wrath of voters if they exercise their lawful discretion in favor of lenience. … Nationally, hundreds of millions of dollars now pour into judicial elections, converting them, as former United States Supreme Court Justice Sandra Day O’Connor has lamented, into “political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law.’”

At the center of Dauber’s case is Persky’s sentence of Turner to six months in jail and three years probation, but this recommendation was the product of two probation officers assigned to the case—both of them women. They interviewed the victim personally, and while Jane Doe 1 was unhappy with their recommendation (see: her wonderful victim statement), in that statement she also indicates that she changed her mind about Turner after hearing what he had to say (see: Turner described Oakwood as a “small town in Ohio” and was demonstrably lying in the face of established fact by his third sentence). 

I certainly don’t blame her, and neither did Deputy District Attorney Alaleh Kianerci, who wrote passionately about Turner’s lack of remorse, refusal to accept responsibility, willingness to lie and distort and so forth. One might think that, of all people, Kianerci would be an unsympathetic ear for Persky, but to the contrary, she is on record writing the following: “Your honor, I am really sorry for any negativity or personal attacks you are enduring. I disagreed with the sentence, but I have the utmost respect for you as a judge. You have always been fair to me personally, and it is a pleasure to appear before you.”

The list of women who staunchly oppose Dauber goes on and on. Dolores Carr, the first woman District Attorney in the history of the County of Santa Clara opposes Persky’s removal. LaDoris Cordell, an African American woman and retired Superior Court of California justice, said of Dauber’s Tweets, “I think that the fact that a Stanford law professor who teaches undergraduates and who blatantly and vigorously endorses violence against a young man who is exercising his constitutional right to appeal his conviction is highly disturbing and totally inappropriate.”

I have a limited number of words so I must leave it, but time and time again, one finds that reasonable, highly-educated, highly-qualified women of all races, sexual preferences, and types of law experience strongly oppose Dauber’s efforts, and yet she is determined to drive the spear of a recall into the belly of her White Whale. Dauber says of Persky on Twitter, that he “belongs with Team Trump – Trump is exactly the kind of privileged harasser who gets light treatment from him,” and yet she embraces Trump’s populist tactics and ignores expert opinions. What are moderate women to do when one of their own rejects the foundational principle of the women’s movement – that we must listen and learn from knowing female voices around us – and declares that her personal rage and opinions are greater than the consensus of the group? She is angry. She is nasty. She is persisting. And she is wrong.

It must be terrifying for women to see a Michele Dauber spring from the best intentions of the women’s movement. I hope that the moderate, expert, strong, intelligent and reasonable women of California will reclaim the reigns of justice and truth for Californians.

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Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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