Judge Who Sentenced Brock Turner Recalled by Voters
Superior Court Judge Aaron Persky became the first California judge recalled by voters in 86 years Tuesday. Persky, who drew controversy over his handling of the Brock Turner Rape case, had been on the bench since appointment in 2003 by then-Gov. Gray Davis.
For those that don’t recall, SF Chronicle summarize the original Brock Turner Rape Case.
Persky, 56, was a deputy district attorney who prosecuted sex crimes before Gov. Gray Davis appointed him to the bench in 2003. He won two new six-year terms without opposition and drew little public attention or criticism until 2016, when he presided over the sexual assault trial of Stanford student Brock Turner.
Turner, 19 at the time, was arrested after two graduate students on bicycles discovered him late one night in January 2015 lying on top of an unconscious woman and caught him when he tried to run away. Turner denied assaulting the 22-year-old woman, maintaining they had acted consensually after meeting at a fraternity party where both had been drinking heavily, but a jury convicted him of three felonies.
The crimes were punishable by up to 14 years in prison, and prosecutors sought a six-year sentence. But Persky noted that the court’s probation officer had recommended a jail sentence of a year or less after speaking with the victim. The judge also cited Turner’s youth and lack of a criminal record, the “severe impact” a prison term would have on him, and his obligation to register annually with police as a sex offender for the rest of his life.
The victim, identified only as Emily Doe, spoke at the sentencing hearing, telling Turner he had taken away “my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence.” She said she considered the proposed jail sentence “an insult to me and all women.”
The statement went viral, galvanized women’s rights advocates, and touched off a campaign that generated nearly 100,000 signatures on recall petitions. It was also instrumental in the rapid enactment of a new state law requiring at least three years in prison for sexual penetration of an unconscious victim.
Almost immediately after the sentencing, efforts to recall Persky began, as reported by NPR:
With 43 percent of county precincts reporting, 59 percent of voters favored the recall of Superior Court Judge Aaron Persky, 41 percent opposed the recall, according to The Associated Press, who called the vote early Wednesday.
Persky becomes the first California judge in 86 years to be recalled.Women outraged by Turner’s lenient sentence led the charge to recall Persky from his post, saying he is unfit to serve out the remaining four years of his term. Persky’s defenders argued that a recall would undermine judicial independence and might unintentionally lead to longer sentences for far less privileged felons.
Turner was convicted in 2016 of sexually assaulting an unconscious woman behind a dumpster at a fraternity party when he was a student at Stanford University.
The crime could have been punished by up to 14 years in prison, as NPR’s Tovia Smith has reported, but Persky, following the county probation department’s recommendation, sentenced Turner to six months in county jail. He only served three months because of good behavior.
At the sentencing, Turner’s victim read a statement about how the assault — and Turner’s refusal to apologize for it — hurt her irreversibly.
Meanwhile, Persky said at the sentencing that “a prison sentence would have a severe impact on [Turner].”
Almost immediately, public support for a recall began to surge. Stanford law professor Michele Dauber, a family friend of Turner’s victim, led a campaign that ultimately got the recall on the county ballot for Tuesday’s vote.
Persky has found some defenders, not so much for the sentencing decision, but out of concerns that recalling judges could affect sentencing going forward:
Perksy, however, has found an unlikely ally in Santa Clara County District Attorney Jeff Rosen whose prosecutors pushed for a stronger sentence. Rosen could have stayed on the sidelines; instead he is actively speaking out, appearing at a news conference on Wednesday with Perksy.
“To recall a judge for one bad decision is something that would have dramatically negative effects throughout our criminal justice system, ” he said.
Persky also got a green light from the Commission on Judicial Performance, an independent state agency, which found no evidence of bias or misconduct with his rulings. Dauber dismissed the report as “a one-sided, closed-door proceeding.”
At least one friend of the judge is hesitant about placing a sign in his yard. The feelings on both sides of the recall are so strong that some are worried about the fallout of endorsing a particular side. Persky tells a story about how he asked one of his longtime friends to put up a yard sign to show support. When the man hedged, Persky said he realized how divisive the issue had become.
“He didn’t want to wonder, ‘What will my neighbors think? What will people think about me? What conclusions will they draw about my character if I put this lawn sign on my lawn? Will they still like me?'” Persky said.
NPR:
The Recall Aaron Persky campaign responded to concerns over judicial independence in a statement that read, in part, “California judges are accountable to voters, and that means considering judges’ previous decisions. … It is up to the voters to determine whether or not Judge Persky continues in office, and the voters may consider his history on the bench including his decisions in making their determination.”
In a statement released last week, the president of the Santa Clara County Bar Association, Kevin Hammon, focuses on the possible consequences for other, less privileged criminals.
Hammon said there is a “special danger” in punishing a judge for being lenient because it sends a message to other judges, exacerbating over-incarceration and precluding “a thoughtful consideration of individualized circumstances.”
He raised the example of abusive or neglectful parents who have experienced traumas or are struggling with addiction. People who have “done terrible things” can meaningfully change their lives, he writes. But a judge would have to give them that chance — and from the outside, that might look like “leniency.” The recall effort might suggest to judges that such decisions would put their jobs in jeopardy, Hammon said.“I will vote against the recall because I value rehabilitation,” Hammon wrote.
The recall campaign responded to such arguments by saying it’s possible to recall Persky, in order to support women who are victims of sexual violence, while also advocating for criminal justice reform, including reducing mass incarceration.
“Both are important and justice is not zero sum,” the campaign wrote.
What say you? Login and comment.
I understand the concern, but if you are worried about judges being too lenient or not lenient enough, then don’t make them run for election. Also, there is a difference between letting a person walk and throwing the book at them. Perhaps judges could, you know, exercise that legal mind to find ways to strike a balance.
I think Persky, was trying to strike a balance, but he related a bit too well to the defendant and lost that impartiality he is supposed to have, and that bit him in the ass.Report
I suspect if the defendant had been even slightly repentant, and the judge had restricted himself to “In lieu of this being a first time offense”, there wouldn’t have been much of an outcry beyond the family and victim.
But the Judge’s remarks had a real “won’t anyone think of the poor boy here?” vibe to it, and excessive sympathy to the plight of a rapist during sentencing is kinda…eyebrow raising.
Of course, I don’t think we should be electing judges (or prosecutors) anyways, because I’ve seen that system up close my whole life, and it sucks.Report
Hence my comment about relating a bit too well to the defendant and losing his impartiality.Report
Yayyyy!!!!!!Report
This is why the correct response was the law passed by California which increased the minimum sentence for this crime. The sentence was abhorrent, in my opinion, but within the bounds of the law.
I saw someone on Twitter make this point by comparing the new law to mandatory minimums on federal drug crimes which are so often unjust and disproportionate. That thinking says to me that these crimes (like Turner’s) are STILL not appreciated for the horrific acts they are.Report
Shouldn’t the probation officer be fired as well? She’s the one that recommended the sentence.Report
If the judge is obligated to follow the officers recommendation, then yes.Report
The judge has no obligation to follow any recommendation but has full discretion in sentencing.
Sometimes, a plea agreement stipulates a “binding” sentencing agreement, but that just means that if the judge doesn’t go along with it the defendant may withdraw the plea.Report
The judge is required to read and consider it. If one were trying to responsibly evaluate a judge’s sentencing decision, you would start by looking at the probation officer’s report, not the prosecutor’s request.Report
I am generally opposed to the idea of judicial elections and recall. Though retention elections are better than straight-up election but not much better.
SF voted to retain four judges yesterday. They are all Democrats who had the misfortune to be appointed by Republicans and this made them targets to further left parts of SF. 2 of the Justices were Asian, I think the two white guys are Jewish (one said he was and the other I think is based on names and origin of his parents).
Judicial elections are madness. People generally don’t have enough information to make decisions this way. This decision might have been bad but sometimes really unpopular decisions are just ones and judges need to feel safe to make those decisions without backlash.Report
This is sweet on the tongue but it will be bitter in the belly.
“Wait, I just wanted Brock Turner to have been appropriately punished! I wasn’t trying to signal that we needed more Law And Order Judges!”Report
-Stanley MoskReport
To the Googles!
Oh.
Two ways to look at this.
One: “Dude. Removing justices is bad and we shouldn’t do it.”
Two: “Dude. We’ve *BEEN* removing justices. Now we’re just removing the ones who are awful in addition to the ones that are good.”Report
I think one of the problems is we want our laws to… mature as we do. But not everyone travels at the same rate. Nor arrives at the same destination.Report
Given that, I suppose the recall justice thing would be a good thing. You can encourage other justices by recalling the ones that are going too quickly or too slowly.Report
I think this is not a good outcome, but one which became more or less inevitable when nobody (least of all Judge Persky) was able to offer anything even resembling a substantive defense of Turner’s sentenceReport
more or less inevitable
Yeah. Thinking about this in terms of “is this good?” or “is this bad?” is probably the wrong way to look at it on any level.
“Was any other outcome possible?”
Given that the answer is pretty much “no”, here we are.Report
I’m seconding Saul. Judges should not be subject to the electoral process regardless of how high or low they are in the judicial hierarchy. They should be appointed in some manner so that they have real judicial independence. The decision in this particular case was really bad but judges can also be recalled for going too soft on other types of crime like drug use or not going hard enough on other types of crime.Report
Yeah, this and I just finished voting yesterday for a bunch of judges I knew nothing about.
The electing of judges doesn’t seem to make sense to me.
The passion of the mob will always be stronger than their reason.Report
I’m conflicted here. The sentence is a tragedy and I can understand why the judge was recalled. But I’m of the opinion that most sentences in the US are too long for most crimes.
Punishment beyond a certain point, simply doesn’t work to deter crime and it often makes things worse. Men who commit crimes will inevitably return to society. Our system seems designed to provide for the highest level of feels about criminals “getting what’s coming to them” and some of the worst outcomes if we care about deterring criminal behavior.
Still, this case isn’t much of a hill to die on. It’s more like a poster child for how we do not take sexual assault seriously. And there is a subversive racial element here as well.
But recalling the judge, as understandable as that is, will result in future decisions being necessarily more draconian as judge fear the label of being soft. It’s a cure that is, perhaps worse than the disease.Report
If recalling judges becomes frequent, it will be an issue. I would think that most judges would see this as an anomaly and not the new normal that must be taken into account.Report
Maybe. I hope you are right. This case received a great deal of negative press however. That sort of coverage tends to have an outsized impact. Still, we can hope judges have enough independence and circumspection to not overreact. Fingers crossed.Report
There are already a lot of reasons the system errs on the side of harshness. This will be one more.Report
That’s only a legitimate argument if you think over-sentencing is not currently a problem, that you agree with the status quo.
How this is seen by judges and defenders is that judges risk losing their job based upon the quality of media coverage of crimes. To quote Saul, “People generally don’t have enough information to make decisions this way.”
Twice in the OP, this crime is described as a rape case, even though the rape charges were dropped before trial. A lawyer in a concurrent thread, twice describes the conviction as one for rape as well. To be judged by one’s decisions is one thing, to be judged by decisions not presented is quite another.Report
My impression is what the Judge said about his reasoning aggravated the situation more than the actual sentence.Report
This. This is what turns it from a dangerous precedent to a curious anomaly.
Want to give out a lenient sentence? Don’t make statements in court records that suggest the accused is getting a pass because ‘boys will be boys’, or ‘he’s got such a bright future’, or anything that strongly suggests you left impartiality in your other robe.Report
I’m entirely unpersuaded by the arguments that this will lead to unduly harsh sentences for more vulnerable defendants.
Because any judge whose decisions are going to be influenced by the results of this recall are going to be influenced by the results of this recall, context and all. What judge is gonna look at the outcome of this situation and have the takeaway of “better just give harsh sentences all round” rather than “better not treat rich white boys nicer than everyone else”?
And I’m not a fan of an elected judiciary and would be happy if California judges were appointed for their twelve-year terms and not subject to retention or recall votes. But given that we have the system we have, this is the exact sort of situation where we should be using it.Report
I don’t think that’s the argument though. Studies show that criminal cases average higher conviction rates and longer sentences in the period before a judge’s re-election. The publicity and controversy around this recall would be expected to expand on this effect.
Judges don’t pick who comes into their courtroom, they are selected be the police. Most of the people in the Santa Clara county jail are not white, that’s the group most impacted by hardening judges from exercising discretion favorable to the accused.Report
Considering all the conservative high-fiving over Johnson’s commutation because of the injustice of her sentence, I still think most judges will weather this without having to impose harsher sentences overall.
Now violent and sex offenders might see less leniency from the courts, but I would expect that to be the extent of it.
But it will be easy to check during the next election cycle. How many sitting judges get attacked for being soft and lose to someone promising to be harder? If that is a largely effective strategy for unseating a judge next cycle, I’ll walk this back.Report
@pd-shaw I would argue that the status quo message – the one being received by judges at least – was “if you want to get re-elected, you had better be easier on white people than brown people, who are the people we really mean when we say we want you to be ‘tough on crime'” and that this message equates to “if you want to get re-elected,” *signal lost, static static static*. What judges then do in reaction to it is thus probably more about them than about the message.
(Having watched my abuser go through Santa Clara county jail a few years back, I did quite a bit of research into exactly how and why that particular system is ‘passing people through’ – his treatment IMO – vs ‘locking them up and throwing away the key’ which seemed largely confined to young black men. But it was personal research, and I know your information in this area is professional.)Report
Interesting post here (https://highline.huffingtonpost.com/articles/en/brock-turner-michele-dauber/) on the Stanford professor behind the campaign that brought down Judge Persky. And this is the killing paragraph:
To convince voters that Persky was unfit for the bench, Dauber knew she needed to demonstrate that Turner’s sentence was not an isolated bad decision. Her teaching assistant, a graduate student named Emma Tsurkov, was also working on the recall. Dauber asked her to dig into the previous 18 months in which Persky had been hearing criminal cases. Tsurkov found some cases that appalled them both. In 2015, Ikaika Gunderson, an aspiring 21-year-old football player, had beaten and choked his girlfriend, then pushed her out of a parked car. Gunderson pleaded no contest to a felony count of domestic violence. Persky agreed to delay Gunderson’s sentencing for a year so he could attend school at the University of Hawaii and try out for the football team, provided he took a domestic violence class and attended weekly AA meetings. Robert Chain had been caught with child pornography, including an image of an infant being penetrated. Chain had expressed remorse and pleaded guilty. He got off with time served: two days in jail. In 2016, Keenan Smith, a football player at the College of San Mateo, was convicted of domestic violence after hitting his girlfriend and punching a bystander who tried to defend her. After he pleaded guilty to misdemeanors as part of a plea deal, he was sentenced to 120 days in a weekend work program.
So thst’s three additional cases in 18 months where male defendents seem to have gotten off with lighter sentences than might have been expected, We’re not talking about one case, in other words, but a pattern of behavior.Report
Judging is supposed to be a profession where you spend hours making up your mind and evaluating evidence, the total opposite of “heat of the moment with no time for perfect choices”.
(Speculation) He’s presumably doing this because he relates to them… which implies if we turned over every rock in his own life (lifestyle?) we’d find something pretty nasty.Report
:Sigh: I’d like to withdraw my post. Thank you PD Shaw.Report
Dauber is a friend of the victim, and is the source of pretty much all disinformation about the case. She is a law professor, so the media feels it can quote her and except for organizations like the A.P. which did some fact-checking. She cherry-picked and mischaracterized other cases, makes claims inconsistent with Constitutional protections and appears to know basic criminal procedures.
Erwin Chemerinsky, Dean and Professor of Law at UC Berkeley School of LawReport
The cases highlighted in that quote involved plea deals negotiated btw/ the prosecutor and the accused. The descriptions are all misleading.
Here is the Associated Press report on the Judge’s record, including this discussion:
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