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.
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.