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More than 90 law professors from throughout California, including 29 from Stanford University, signed a letter this week expressing their opposition to a campaign to recall Santa Clara County Superior Judge Aaron Persky.
Calling the recall a threat to judicial independence, the letter defends Persky’s sentencing judgment, including his most controversial decision — the six-month sentencing of former Stanford student Brock Turner, who was convicted of sexually assaulting an unconscious woman on campus in 2015. This case was the catalyst for the recall effort, which is being led by Stanford Law School professor Michele Dauber. She and supporters of the campaign argue Persky has demonstrated a pattern of judicial bias against women and defendants of color in other sexual-violence cases.
“The mechanism of recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms,” the professors write. “None of these criteria applies to Judge Persky.
“We appreciate that some people (indeed including some of the signers of this letter) might have chosen a different result,” the letter continues, “but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional, a probation officer) — not on public outcry about a controversial case.”
The professors also argue that other sentencing decisions the recall campaign has pointed to as evidence of judicial bias “followed the equally common and legitimate practice of accepting a recommendation agreed on by the prosecution and defense.”
A group of law school faculty penned a similar letter last summer, signed by 46 professors. The core group decided to release a fresh version this week as the recall campaign prepared to start gathering the required number of signatures to place the recall on the June 2018 ballot, said Robert Weisberg, Stanford law professor and co-director of the Stanford Criminal Justice Center.
Just after the Santa Clara County Registrar of Voters approved the recall campaign’s official petition on Wednesday, however, a judge approved a restraining order filed by Persky to temporarily halt the signature-gathering effort. Persky argued in court documents that because he is a state officer, California’s secretary of state rather than the county registrar should have decided whether the campaign’s signature effort could move forward.
In an interview, Dauber called this a “frivolous,” “political” move intended to delay the signature collection.
Weisberg declined to comment on Persky’s legal challenge but said he and the other professors are “operating on the assumption” that the recall will move forward.
As of Friday afternoon, 93 professors from both public and private universities had signed the letter in support, including from Santa Clara University, the University of California, Berkeley; University of California, Hastings College; University of California, Davis; University of San Diego; Pepperdine University; Chapman University; and the University of Southern California.
In response, Dauber said it’s “disappointing but not surprising that a group of law professors is siding with a judge against the constitutionally provided right of the people of this county to exercise democratic oversight of this elected official.”
She criticized the signers for, she contends, falsely stating in an initial version of the letter that the Santa Clara County Bar Association conducted a “review” of Persky’s decisions, finding no evidence of bias.
In a statement last summer, the bar association said it opposes the recall and “has seen no credible assertions that in issuing the (Turner) sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith. Nor is the SCCBA aware of any other complaints or allegations of impropriety against Judge Persky during his 13 years on the bench.”
Weisberg said that while the bar association did not conduct a formal study or investigation, it “clearly examined available evidence.”
“The word ‘review’ is pretty general, and this objection is a trivial quibble,” he said.
The professors have since updated the letter to read “the Santa Clara County Bar Association issued a 2016 statement opposing attempts to remove Judge Persky from the bench,” with a link to the statement.
Margaret Russell, a Santa Clara University School of Law professor, said this week’s letter “adds a perspective to the recall issue that has not been sufficiently addressed before now.
“Law professors are by nature pretty much individualistic in our views, but this large and diverse variety of signers (including scholars of criminal law, feminist jurisprudence, and constitutional law) reflects our utmost concern about this judicial recall attempt,” she wrote in an email to the Weekly.
Weisberg echoed that, and said that Stanford Law School professors in particular “may have been a little more motivated than others to express their opposition to the recall, lest the proi-recall view be imputed to the law school or lest people assume that silence from the law school faculty implied if not agreement with the recall, perhaps non-opposition to it.”
So, that’s nice. Good to have more persons involved. But anyone considering recall should start by reading what proponents served as their written reasons for the recall. The statement refers to bias as evidenced by the judge’s handling of five cases – not just the Brock Turner case. And while I am not (yet) convinced that recall of this very well regarded judge is justified, the MV Voice should next provide the proponents’ statement of reasons and the response from Judge Persky. They are limited to 200 words each.
One would imagine that these are the 5 cases referred to in this paragraph quoting the letter:
The professors also argue that other sentencing decisions the recall campaign has pointed to as evidence of judicial bias “followed the equally common and legitimate practice of accepting a recommendation agreed on by the prosecution and defense.”
To recall a judge for such behavior seems highly questionable, as does the rhetoric that excoriates the Judge rather than the underlying system which is what they really undermine by this campaign.
This story understates the concern of the Persky court action. They are not just arguing that this recall belongs before the Secretary of State. More importantly they are also arguing an issue which the county elections handbook cites as ambiguous about judicial recall. The issue is a perceived ambiguity in whether replacement judges would be elected or appointed. I believe this is because the election code assumed a dichotomy between replacing recalled municipal judges and replacing recalled judges of the Superior Court of California. Even if the court finds that a recall supervised by a county elections officer is OK, there is a separate issue about the petition assuming that the replacement will be by direct election, which is different than for any other new judge of the Superior Court of California. The petition can’t just determine points of law by itself. The election code is not ambiguous, it’s just relative to the former courts differing operations where there were both elected municipal judges and appointed Superior Court judges who only faced voters in the case of a reelection.
Dauber’s wrong. This is not just a stalling tactic but a very important consideration that needs to be resolved by judicial action.
Trial court judges have been elected as long as I remember (many decades). They are appointed only if a vacancy occurs. But the game is for judges to retire before they seek a re-election so as to permit the Governor to appoint the successor who then faces election as a sitting judge. In any event, the current procedural issues were to be resolved at or following a hearing on August 23. It will not likely matter whether a replacement would be selected on the same ballot (if the recall petition gathers enough signatures). That is a side issue – probably not even part of the pending petition for writ of mandate. But I have not seen what has been filed. Let’s wait to see the ruling(s).
I can’t find the text of the recall petition online, but as I understand it, the petition as worded assures the signer that a successful petition will result in the election of a new judge on the same ballot where the recall is voted on.
But this campaign is most concerning and quite strange. Back in June Dauber’s students wrote her an open letter asking her to back off from this crusade against judicial independence. https://www.thecollegefix.com/post/27934/
Now recently the recall campaign are asking that the assigned judge be removed from the case. http://www.mercurynews.com/2017/08/18/persky-recall-campaign-tries-to-dump-judge-who-blocked-petition-drive/
I don’t buy the first amendment issue. They can circulate whatever they want, just not as part of an officially certified recall campaign while the TRO remains in effect. Certainly the publicity assists their efforts n the future. The TRO just mitigates the damages of potentially mis-informing the signers about the official recall vote.