A bitter divide over bid to recall judge
Voters will decide whether to oust Aaron Persky, whose lenient sentence in sex assault case sparked outrage.
SAN FRANCISCO — A campaign to recall a judge for a lenient sentence in a high-profile sexual assault case has fractured longterm friendships, divided the liberal Democratic community of Santa Clara County and pitted feminists against feminists.
Voters will decide Tuesday whether to recall Judge Aaron Persky, who two years ago sentenced Stanford University swimmer Brock Turner to six months in jail for assaulting a woman who lost consciousness after heavy drinking.
Turner, who was 19 at the time, was convicted of three felonies: two for digitally penetrating an unconscious or intoxicated person and one for assault with intent to commit rape. He served three months and must register as a sex offender for life.
The sentence sparked a national uproar, coming at a time of heightened awareness of campus sexual as-
saults and on the eve of the #MeToo movement. Persky, 56, appointed by former Gov. Gray Davis, is the first judge in California to face a recall vote in more than 80 years.
Emotions are so high that vandals have spraypainted over lawn signs opposed to the recall. The prorecall signs display a photo of Persky next to Turner’s mug shot, and both the judge and the woman leading the campaign to oust him have received threats.
“There are many people, who have been allies on a lot of issues, who are on opposite sides of this particular one,” said Santa Clara County Dist. Atty. Jeff Rosen, who opposes the recall.
Among them are Persky’s wife and Dr. Sophia Yen, one of the recall leaders, who had been friends for more than 10 years, attended parties at each other’s homes and whose children played together. They no longer talk.
Stanford law professor Michele Landis Dauber, who is a family friend of the victim in the Turner case, is the public face of the recall. She is a sociologist, not a lawyer, though she graduated from law school. She has long been an advocate for victims of sexual assault.
Leaders on the other side include two female Santa Clara University law professors, the first black female judge in Northern California’s state courts and a former federal public defender.
The legal community has largely opposed the recall, calling it a threat to judicial independence.
More than 90 California law professors, including 20 from Stanford’s law school, have signed a statement opposing it. They say it will encourage judges to give tougher sentences and perpetuate mass incarceration.
Stanford law professor Deborah Rhode, who specializes in legal ethics, has remained neutral.
Turner’s sentence was “egregiously inadequate,” she said, but recalling the judge was the wrong response.
“You don’t want to set a precedent punishing judges for leniency because the system creates every incentive for them to operate on the reverse principle and throw away the key,” Rhode said.
Dauber insisted that the recall would not make other judges more punitive.
“I have greater faith in judicial integrity than apparently the dim view that Judge Persky’s supporters have,” she said.
U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.
In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.
Recall proponents accuse Persky of being easy on criminals who come from privileged backgrounds in sexual assault and domestic violence cases.
Instead of seeing Turner as “a calculated, lying, unrepentant sex predator,” Dauber said, Persky, “refracted through the lens of privilege, sees a good kid who made a mistake.”
Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.
The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.
“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the antirecall leaders. “He did it regardless of race or ethnicity.”
California’s Commission on Judicial Performance, a watchdog agency, received thousands of complaints about Persky after Turner’s sentencing and issued a statement saying the accusations of bias were unfounded.
Persky stopped hearing criminal cases after the Turner uproar and now works from home as a night judge, issuing warrants and protective orders in domestic violence cases.
Four years are left in his six-year term.
Persky said in an interview that he never seriously considered resigning, though he has had to beef up security at his home and be escorted into the courthouse by a sheriff ’s deputy through an entrance used for jail inmates.
He said he believes voters will reject the recall if they look at it dispassionately because most people want judges “who can follow the rule of law and ignore public opinion,” as required by California’s code of judicial ethics.
“I think it is critical to prevail because if the recall wins, it is sort of a blueprint for judicial recalls in the future,” Persky said.
Some judges already are questioning their decisions and issuing stricter sentences, Rosen and others said. Rosen’s office sought a six-year prison term for Turner, and Rosen publicly condemned the six-month sentence.
After Turner’s sentencing, Rosen went to Sacramento and won passage of a law that makes the crimes Turner committed punishable by a mandatory three years in prison — the same sentence required when sexual assault is by force.
Rosen said Persky was not considered a particularly lenient judge, and “most judges in California would have done the same thing” two years ago. Turner had no criminal record, and the seriousness of campus sexual assaults was not as appreciated back then, Rosen said.
Turner, who also was intoxicated during the assault, was sentenced to three years’ probation, withdrew from Stanford and returned home to Ohio, where neighbors will be notified of his sex offender status whenever he moves. He cannot live near schools or child care centers.
The case gained notoriety when Rosen’s office released a lengthy written statement by the victim after the sentencing. It reflected her immense pain and went viral. She was 22 when assaulted and did not attend Stanford.
Former Vice President Joe Biden commended her courage and expressed “furious anger.” Actress Sharon Stone read the statement aloud at a symposium Rosen organized to address campus sexual assault.
“Two years later, after what has happened, now everybody says, ‘I would have sent Turner to prison,’ ” Rosen said.
“So much has changed in the last two years,” he said. “This case was in some ways an early precursor to the #MeToo movement.”
Yen, who teaches pediatric medicine at Stanford, said Persky’s sentence had a “chilling effect on women everywhere” and discouraged victims from reporting sexual assaults.
Yen called it “sad” that her long friendship with Persky’s wife, whom she described as a feminist, has suffered as a result of the Turner case.
Yen emailed her friend two years ago to ask if her husband would resign and spare his family the “public attention/humiliation” of a recall and the prospects of recall billboards with his photograph.
Persky’s wife, who the anti-recall campaign asked not to be identified because of concern for her safety, demurred.
The recall campaign has raised about $1.2 million. Records show anti-recall committees reported contributions of $1.1 million, $400,000 of that in nonmonetary legal services.
Two candidates will appear on the ballot Tuesday to succeed Persky should the recall succeed: Assistant Santa Clara Dist. Atty. Cindy Hendrickson, who supports the recall, and civil lawyer Angela Storey, who opposes it.
Dauber has accused Persky’s supporters of victim blaming, and people “get so angry” at campaign events, Santa Clara University’s Kreitzberg said. To quell that anger, she and other recall opponents stress they are not defending a sexual assault.
“This is not a referendum on rape or rape culture,” Kreitzberg said. “We are against rape and sexual assault, and we share common abhorrence of violence against women and children.”