Persky to leave criminal court
Judge targeted by recall effort asks to be reassigned to hear only civil cases, starting Sept. 6
PALO ALTO — The Santa Clara County judge who faces a recall threat for giving a light sentence to a Stanford student convicted of sexual assault will no longer handle criminal cases — at his own request.
Judge Aaron Persky asked to be reassigned from hearing criminal cases at the Palo Alto courthouse, where he has been under intense fire since early June for sentencing former Stanford swimmer Brock Turner to six months in jail rather than a longer term in state prison for sexually as-
saulting an intoxicated, unconscious woman outside a fraternity party.
Ever since, critics have vowed to remove him from the bench, with some, including Stanford law professor Michele Dauber, pushing for a recall election in November 2017 and others complaining to the state agency on judicial performance.
On Sept. 6, Persky will return to hearing civil cases at the Old Courthouse near St. James Park in downtown San Jose. Until then, he will continue to preside over criminal matters in Palo Alto, court spokesman Joe Macaluso said. Persky could not immediately be reached for comment.
Persky and Judge Vin- cent J. Chiarello, who lives near the Palo Alto courthouse, will switch places, with Chiarello moving up to Palo Alto. The switch was not engineered by Presiding Judge Rise Pichon, who said she had no plans to transfer Persky out of Palo Alto, despite the public outcry.
In a brief written statement, Pichon said, “While I firmly believe in Judge Persky’s ability to serve in his current assignment, he has requested to be assigned to the civil division, in which he previously served. Judge Persky believes the change will aid the public and the court by reducing the distractions that threaten to interfere with his ability to effectively discharge the duties of his current criminal assignment.”
The new assignment will not be permanent. Judicial assignments rotate every year and must be approved by the presiding judge.
But the transfer did nothing to temper the criticism.
“This doesn’t change anything,” Dauber said. “We’re pleased he won’t be handling criminal matters, at least for the time being, but he can transfer back. So the issue of his bias still needs to be decided by voters.”
Persky’s supporters disagreed. Deputy public defender Roderick O’Connor called the transfer a “big loss,” saying that Persky doesn’t deserve to be the target of “this hysteria” because he is extremely prudent and fair.
“It’s a shame he’s moving,” he said, “because I believe criminal defendants and prosecutors deserve a judge of Persky’s caliber.”
Persky’s decision — coupled with the gripping statement the victim read in court — has had an enor- mous ripple effect, bringing a renewed national focus to efforts to deter, report and punish campus sexual assaults. Supporters, including many defense attorneys and public defenders, note that Persky was following a probation officer’s recommendation in sentencing Turner, who is expected to be released from jail next week.
But the decision has sparked a bill now making its way through the Legislature that would set a mandatory prison sentence for sexual assault of an unconscious or intoxicated person. California law treats sexual assault of a conscious person as a more severe crime than attacking an unconscious person, and the legislation suggested by Santa Clara County District Attorney Jeff Rosen seeks to eliminate that imbalance.
The scandal has also breathed new life into a bill that would broaden the definition of rape to include forced penetration of any body part with a foreign object. Had that been the law at the time, prosecutors could have charged Turner with rape.
But the Turner case has also cast a dark shadow over Persky’s court.
Earlier this summer, prosecutors filed a peremptory challenge that kept him from presiding over a preliminary hearing for a Kaiser Permanente surgical nurse accused of sexually assaulting a sedated woman.
In the latest in a series of humiliations, the judge Friday disqualified himself from making his first key decision since the Turner matter in another sex case. In a brief statement he read in court Friday, the judge said he and his family were exposed to publicity surrounding the new case, which resulted in “a personal family situation.”
Persky was to decide whether to reduce plumber Robert Chain’s felony conviction for possession of child pornography to a misdemeanor, as he indicated he might when he sentenced Chain to four days in county jail last year.
Such reductions are not unheard of, but in Chain’s case, it would have come a year earlier than a probation officer recommended, which had been cited by Dauber and other critics as an example of Persky’s unwarranted leniency toward sex offenders. Most judges impose six-month sentences on defendants in similar cases.