On June 5th. during the 2018 California primary elections, Aaron Persky became the first judge to be recalled in California in more than eighty-five years. With nearly all precinct numbers in, just under 60% of voters were in favor of removing Judge Persky from the Santa Clara County Superior Court where he has served since 2003.
Persky sparked outrage when he handed down what was considered to be a far too lenient sentence to Brock Turner, the former Stanford University star swimmer convicted of sexual assault.
Turner was found guilty on three felony charges. Persky sentenced Turner to just six months in prison — eligible for release after three — and lifetime registration as a sex offender in addition to three years of probation for sexually assaulting an unconscious woman outside a campus frat party (next to a trash dumpster) in 2015. Plus court costs and fees.
The maximum sentence was fourteen years.
Prosecutor Cindy Hendrickson was elected as Persky’s replacement with nearly 70% of the vote.
Elected judges in California are by definition accountable to voters. And when sentencing is thought to egregiously cross the moral or ethical line, the Santa Clara County District Attorney in this case can avail himself/herself of the 170.6, a procedure employed by attorneys to remove judges whom they feel are biased.
SCCDA Jeff Rosen readily admits that removing Persky from new sexual assault cases is “a rare and carefully considered step for our office,” and that each case is evaluated “on its own merits” before a decision is made to exercise “our legal right to ask for another judge in order to protect public safety and pursue justice.”
In the wake of the Turner case, this is exactly what happened.
After dismissing for insufficient evidence a misdemeanor stolen mail case in mid-trial, Persky was removed from a new sexual assault case.
“After this and the recent turn of events, we lack confidence that Judge Persky can fairly participate in this upcoming hearing in which a male nurse sexually assaulted an anesthetized female patient,” Rosen resolutely stated.
Once the 170.6 affidavit is filed, the transfer to another judge becomes automatic.
“There’s no reason he should ever sit on a similar case,” remarked Loyola Law School professor Laurie Levenson about Persky in an NBC News interview.
Prospective jurors have echoed her sentiment by refusing to serve under Persky and have been accordingly dismissed by him; as to their unwillingness to serve and their expressions of disgust, Persky could only reply, “I understand.”
Outspoken Stanford University law school professor Michele Dauber (never to be confused with Pam Dawber of “Mork & Mindy” fame) triggered the successful recall drive against Persky.
To some she was simply playing the role of an agitator waging all-out war against the judge in response to his soft sentencing of Turner. Others view her as a hero who fought against a sexist establishment, the status quo and won.
Gary Goodman, a public defender who opposed the recall and supported Persky weighed in about Dauber saying, “She had an agenda. It didn’t matter who she was going to run over and, unfortunately, it was a very kind man.”
Parried Katherine Spillar, the executive director of the Feminist Majority Foundation and executive editor of Ms. Magazine, “I think Michele is one of those rare individuals who sees a wrong and sets out to right it. It’s coming from a very deep belief in equality and women and girls being able to exercise their rights.”
Says Dauber herself, “Anybody who knows me will tell you that I’m a compulsive rule follower.”
Particularly when it comes to accountability, number 1 and women and children being unfairly treated, number 1-A.
“The way you change things in this country is to vote,” notes Dauber with passion. Elections are the source of legitimacy in society she contends, and opposition to any recall vote is “anti-democratic.”
She never expected to raise her profile by cutting and pasting herself as the face of a movement, but if that’s what had to happen, then so be it. “I care about women’s equality,” she remarked.
An unabashed, unapologetic feminist and mother of five, Dauber bristles at the notion that anything other than striving for equality and egalitarian behavior was her motivation.
Her opponents speculate that her friendship with the family of Turner’s victim catalyzed her, which Dauber would not dignify with a response.
Spillar did it for her. “Revenge only gets you so far,” she said. “It’s the belief in ideals and the rightness of this cause and the urgency of this cause that fuel Michele.”
“The voters of Santa Clara County are the winners of this election,” proclaimed Dauber in an email statement.
“We voted today against impunity for high status perpetrators of sexual assault and domestic violence. We voted that sexual violence is serious and it must be taken seriously by elected officials. Our message is: violence against women is a voting issue — alongside reproductive freedom, gun control, and the other issues that progressive Democratic women care about. If candidates want the votes of progressive Democratic women, they will have to take this issue seriously. If they do not, they will hear from women at the polls.”
“The right result here is not to change the law to tie the hands of 1,000 good judges who didn’t abuse their discretion. The right result is simply to un-elect the bad judge who did abuse his discretion.”
— Michele Dauber
Persky supporters don’t see it that way…not even a little.
They argue that the recall sets a dangerous precedent.
LaDoris Cordell, a retired judge and Persky spokeswoman told the New York Times that the recall was an attack on judicial independence which “encouraged people to think of judges as no more than politicians.”
A progressive African-American feminist, Cordell’s support of Persky on the surface is unlikely. But following the law is the blood which courses through her veins.
First she notes that Persky handed down Turner’s sentence at the probation department’s recommendation, which judges tend to follow. Secondly she cites the critical importance of allowing a judge his or her own discretion within the law.
Conceding that she personally would have imposed a harsher sentence on Turner, Cordell maintains that recalling a judge for “unpopular decisions,” imperils their willingness in the future to give “individual consideration” — meaning possibly more lenient and less thoughtful sentences — to defendants, many of whom will inevitably be low-income and people of color.
“Without discretion, we are left with cookie cutter justice that imposes mandatory sentences, without any regard for the defendants’ circumstances…If Judge Persky is recalled, trial judges in Santa Clara County, and throughout the State of California, will be looking over their shoulders, testing the winds before rendering their decisions…Should this recall succeed in removing a judge for making an unpopular decision, it will be harder for low-income defendants, most of whom are of color, and harder for those who advocate for them, to receive judicial consideration of mitigating circumstances…Several empirical studies have concluded that judges impose harsher sentences when pressured by elections, and that these effects are concentrated on defendants of color.”
Dauber cries foul and believes this to be balderdash.
“Judge Persky did not just make a single bad decision. He made a slew of bad decisions involving sex crimes and violence against women. And his supporters, including Judge LaDoris Cordell, know that. [Cordell] contends that the recall will hurt judicial independence and also cause more incarceration of people of color. Neither of these is true. First of all, judges in California are elected. As such they are not fully independent as in the federal system. They are accountable to the people they serve. That is why the independent, nonpartisan Center on the California Constitution reviewed the question of judicial recalls and concluded that they do not reduce judicial independence in California because they are an infrequently used mechanism for balancing competing value sets of independence and accountability. Second, everyone connected to this campaign supports criminal justice reform. Many of this campaign’s leaders and elected endorsers are people of color, such as Senate Pro Tem President Kevin De Leon and Congressman Ro Khanna. We do not have to choose between justice for women who are victims of domestic and sexual violence, especially women from marginalized communities, and reforming the criminal justice system. Both are important. Our campaign is very clearly about ending impunity for high status offenders like Mr. Turner. I am confident that judges are smart enough to tell the difference between high status, white, college athletes convicted of sex crimes and poor minority drug and non-violent offenders.”
Persky. Dauber and Cordell.
And Santa Clara University law professor Margaret Russell.
Russell characterizes the Persky recall as a message sent that judges should “consider public opinion in their sentencing decisions.”
She embellishes by adding that “this runs counter to the judicial oath or affirmation to protect and defend the United States and state constitutions.”
When queried as to the impact the recall might have on women and movements like #MeToo, Russell remarked that “the chilling effect on the independence of the judiciary is palpable,” before astutely identifying the scope and reach of #MeToo.
“Both the anti-recall and recall campaigns were led by self-identified feminists,” she said. “It is abundantly clear that the #MeToo movement is intersectional, complex and not subject to simple classifications.”
The United States punishes its citizens more than any other country and seemingly the principals in our criminal justice system face more political pressure than their counterparts elsewhere around the world.
Only this country allows judges to be elected — 39 states are on board — and we are also the only country to elect its prosecutors, a nod to the Andrew Jackson era and its corrupt appointment processes.
(Only two nations outside of the United States have judicial elections. Smaller Swiss cantons elect judges and appointed justices on the Japanese Supreme Court must sometimes face retention elections, a formality.
Hans Linde a retired Oregon Supreme Court Justice quipped at a 1988 symposium on judicial selection, “American adherence to judicial elections to the rest of the world is as incomprehensible as our rejection of the metric system.”).
In the rest of the world, the selection methods employed emphasize technical skill and insulate judges from the popular will, thereby underscoring independence within the law. The risk of playing to the constituency is negated.
The most common methods of judicial selection abroad involve formal appointment by an executive branch official which is how federal judges in the US are chosen.
The Persky recall campaign highlighted only five decisions out of thousands the judge handed down.
The leaders of NoRecall2018 point out that over a million dollars was spent to remove one judge who followed the law in every case and was never reprimanded or censured by California’s Commission on Judicial Performance. These resources they maintain, could have been better allocated to bolster real reform and create streams if not rivers of additional support for survivors of rape and sexual assault.
Judicial independence is imperative. It is critical to a healthy democracy.
Elections — exercising free choice and free will — define democracy.
Will the recall of Aaron Persky dissuade judges from leniency even and especially where it is warranted?
Will his firing have any impact at all on how our justice system treats sexual-assault survivors?
Unanswered questions I’m afraid.
To be continued…stay tuned.
Yet another glaring example illustrative of the understanding that ours is hardly a perfect world.
[Editor’s Note: This piece was written by Mr Kaplan in June 2018.]