Panel ignored facts on judge, critic charges
The Stanford law professor campaigning to remove a judge who gave a former athlete at the university six months in jail for sexual assault says the state commission that cleared the judge of unethical conduct ignored some facts and distorted others.
The Commission on Judicial Performance’s examination of Judge Aaron Persky was “a one-sided, closed-door proceeding that resulted in an errorridden report ... by an agency with a long history of protecting judges,” Professor Michele Dauber said in an analysis posted Sunday on a website devoted to recalling the judge.
In particular, Dauber said, the commission overlooked evidence in several of Persky’s past cases that, she said, showed a “pattern of bias ... in favor of privileged defendants, particularly collegiate athletes” like former Stanford swimmer Brock Turner.
Turner, then 20, was convicted in
March of three counts of felony sexual assault for digitally penetrating a woman who had passed out after drinking at a fraternity party in January 2015.
Prosecutors sought a six-year prison sentence. In imposing the sixmonth jail term in June, Persky, a Santa Clara County Superior Court judge, said a long prison sentence would have a “severe impact” on Turner, who had no previous criminal record and who, the judge said, would not be a danger to anyone after his release. Persky also noted that the court’s probation department had recommended a county jail term rather than state prison.
Turner was released in September after serving half his sentence, earning time off for good behavior in jail. He will have to register with police for life as a sex offender. Stanford has banned him from campus, and USA Swimming has permanently excluded him from its national teams.
Irate state lawmakers responded to Persky’s decision by passing legislation requiring at least three years in prison for sexual assault of an unconscious person in future cases, the minimum sentence already mandated for forcible rape. The case has also prompted a campaign, led by Dauber, to recall Persky from office.
The Commission on Judicial Performance looked into the case in response to petitions bearing more than 1 million signatures, backed by more than a dozen state legislators. The commission can censure judges or remove them from office, with state Supreme Court approval, for violating standards of judicial ethics.
In a unanimous decision Dec.19, the commission said Persky had acted within the bounds of the law and had not shown bias, either in Turner’s case or in past cases.
The judge’s opponents cited Persky’s sentencing of a college football player to four months in jail for felony domestic violence and his deferral of sentencing for another football player on the same charge, who eventually was given eight weekends in jail. By contrast, opponents noted, Persky sentenced a low-income Latino defendant to three years in prison for sexual penetration with a foreign object.
But the commission said those sentences and others cited by Persky’s critics had been negotiated or accepted by both prosecution and defense lawyers, and did not reflect bias in favor of white or privileged defendants or against female victims.
Dauber said those findings were badly flawed. Persky, not the defense lawyers and prosecutors, determined the sentences, she said, and allowed one of the athletes to go to Hawaii and play football before serving his jail term. She also contrasted Turner’s six-month sentence with the Latino defendant’s three-year term for a similar crime, even though that defendant, unlike Turner, “pleaded guilty and was remorseful.”
“The facts reveal that Judge Persky has exhibited bias in a host of cases,” Dauber said in a statement. “We look forward to taking this evidence to the voters.”
Kathleen Ewins, a lawyer for Persky, said both she and the judge were barred from commenting on the details of the cases. She said Persky had given information to the commission only about his handling of Turner’s case, and the panel “did its investigation and rendered its conclusions as to those other matters without his input.”