Analysis of Judge Aaron Persky’s record offers fodder for both sides of recall debate.
An analysis yields fodder for both sides over whether jurist should be recalled
PALO ALTO — Judge Aaron Persky faces public anger and a recall threat as the result of a single decision he made in the course of 12 years on the bench — a predicament his critics insist is fair because of the lenient sentence he handed a white athlete at an elite university.
But as controversy continues to flare over the six-month sentence the Santa Clara County Superior Court judge handed former Stanford swimmer Brock Turner for sexually assaulting an unconscious, intoxicated woman, others contend that Persky should be judged by his overall record.
California law, they note, gives judges considerable latitude over sentencing, making Persky’s call in the Turner case just one of hundreds the judge has made since he was appointed by former Gov. Gray Davis in 2003.
“We need to be very careful we’re not hanging judges out to dry based on one decision, especially because he is considered to be a fair and even-tempered judge,” said Santa Clara County Public Defender Molly O’Neal.
But Oakland civil rights attorney Carla Minnard disagrees.
“Although I would normally say that a judge should not be recalled absent some pattern or recurring behavior,” Minnard said, “when the decision-making is so out of bounds and so egregious, then even a single instance warrants his removal from the bench.”
An examination by this newspaper of a handful of Persky’s recent sentences yields fodder for those on both sides of the debate.
Michael Lee Simpson probably doesn’t think Persky goes easy on white sex offenders with no criminal records. In December, the judge sentenced Simpson, an office worker who is white, to 30 years and eight months in state prison for raping a stranger who was waiting for a ride one night on the Peninsula.
The prosecutor in that case was Alaleh Kianerci, the same deputy district attorney who prosecuted Turner. She couldn’t be reached for comment Friday. But Kianerci and her boss, District Attorney Jeff Rosen, have said that while they strongly disagree with Persky’s sentence in the Turner case, they do not support recalling the judge.
Persky is barred from commenting on the Turner case because the Ohio resident — now serving what is likely to be three months in jail because his sentence will be reduced for good behavior — has appealed his conviction.
The judge has a pattern of sparing relatively lowlevel offenders of color from prison, according to defense attorneys who asked not to be identified because they have to appear before him on future cases.
For instance, a 54-yearold black woman addicted to crack who robbed a Kohl’s department store — and repeatedly fired pepper spray at a security guard — faced up to two years in state prison after pleading guilty. But Persky recently sentenced her to 120 days on a work crew picking up freeway trash. Under the same good-conduct credit system that will allow Brock Turner to be released after three months, the woman is expected to work only 60 days.
On the other hand, Persky recently imposed a tougher sentence on an African-American man who committed a property crime — breaking into an unoccupied home — than he gave Turner for a violent crime. Persky sentenced the man to a year in county jail, less than the two years in state prison he faced. But the man had a criminal record — in fact, he was on probation for committing burglary in another state.
Turner’s lack of priors was one of three factors that Persky cited in giving him the lighter sentence.
The judge’s critics have also pointed to the relatively light sentence Persky gave to a man in a domestic violence case, just moments before he sentenced Turner. The man got 72 days of “weekend jail” at Santa Clara County’s Elmwood facility in Milpitas.
Like the victim in the Turner case, the victim in the domestic violence case also read aloud a heartfelt statement, in addition to showing photos of her bloody face.
The chief organizer behind the recall, Stanford law Professor Michele Dauber, accused Persky of insensitivity to that victim in an interview with Amy Goodman on the radio show “Democracy Now.”
The show’s website claims, “Just Before Giving Stanford Rapist 6 Months, Judge Dealt Another Light Sentence to Domestic Abuser.”
During her interview with Goodman, Dauber claimed that the judge seemed overly concerned with the defendant’s ability to leave jail on time Monday morning to go to work.
But it was prosecutors from Rosen’s office and a private defense attorney who negotiated the plea bargain. The judge merely approved it, though he could have rejected the deal.
Regardless of whether the recall succeeds or not, some legal experts — including those who oppose Turner’s sentence — say such an election may sour the public on recent criminal justice reforms that have softened harsh sentencing laws. Other experts, though, say it holds the promise of sparking a real change in attitudes toward women victims.
The Santa Clara County Bar Association came out in opposition to the recall Friday, solely on the grounds of protecting the independence of the judiciary, not because it supports Persky’s verdict.
Some experts are worried about the chilling effect the outcry against Persky may have on judges, while others say they would welcome a more responsive judiciary.
“There are going to be a lot of judges who are going to kowtow now” to prosecution demands and public opinion, said Loyola law Professor Laurie Levenson, who objects to Turner’s sentence. “The irony is that if the laws get tougher, the people who get slammed every day are not going to look like him.”
“Although I would normally say that a judge should not be recalled absent some pattern or recurring behavior, when the decision-making is so out of bounds and so egregious, then even a single instance warrants his removal from the bench.” — Oakland civil rights attorney Carla Minnard