News

Analysis of Judge Persky's 'pattern' cases

A review of court records and interviews of those involved with five other cases Persky presided over

Six criminal cases are at the heart of the campaign to unseat Santa Clara County Superior Court Judge Aaron Persky.

The first is the most well-known: Brock Turner, the former Stanford University student-athlete convicted of sexually assaulting an unconscious, intoxicated young woman outside a fraternity party in 2015. It is Persky's sentencing of Turner — six months in county jail, three years of probation and lifetime sex-offender registration — that sparked the recall the judge now faces.

The other five, which Persky presided over during his time hearing criminal cases in the Palo Alto courthouse in 2015 and 2016, have been brought forward by the recall campaign as evidence of an alleged pattern of Persky's bias for white, privileged and male college athletes in cases involving violence against women.

The anti-recall campaign argues Persky's decisions in each case were lawful and illustrate the record of a judge who leaned correctly toward rehabilitation for first-time or low-risk offenders. The campaign also argues that the men do not fall into the pattern of being white (only two are), athletes (two are) and privileged (one is).

The five cases differ from the Turner case in that none went to a jury trial. All of the sentences except one were negotiated through plea bargains, meaning the district attorney's office and defense agreed to certain charges and punishments. In an interview with the Weekly, Persky described a judge's role in plea bargains as hands-off. It's rare for a judge to object to a plea deal on his or her own accord, he said.

The role of the probation department also differed across the cases. Some but not all of the cases had full probation reports, meaning the probation department interviewed the defendant and possibly the victim, conducted a risk assessment, reviewed the police report and made a formal sentencing recommendation to the judge.

In two cases, Persky waived the referral to probation, meaning the report the department produced was limited.

The key facts of each case have been in public dispute throughout the campaign. To help inform voters, who will decide Persky's fate on June 5, the Palo Alto Weekly reviewed court records and interviewed those involved with the cases to answer the most controversial questions about each case.

A case of child pornography

Robert Chain was arrested in Sunnyvale in May 2014 for possession of child pornography following an investigation conducted by the Silicon Valley Internet Crimes Against Children Task Force. Chain, who is Caucasian, was then 48 years old, living in San Jose and employed as a plumber. He had a prior criminal record for driving under the influence.

Police found about 200 images and one video on his computer, according to court records. Chain was charged in June 2014 with one count of possessing/controlling matter depicting a person under age 18 engaging in or simulating sexual conduct. The crime carries a maximum three-year penalty and no minimum. Chain was not suspected of sexual abuse of a child nor of making the pornography.

In March 2015, Chain pleaded guilty to the charge, court records show. In the probation report, cited in a court document, Chain attributed his offense to alcoholism, marijuana use and being molested himself as a child. In June, Persky sentenced Chain to four days in county jail (two days of which he had already served, plus two days he earned through credit), three years of probation and lifetime sex-offender registration. Conditions of his sentence included participation in a sex-offender program, individual therapy and Alcoholics Anonymous, among other instructions.

Persky recused himself from the case in August 2016, following the Turner sentence, citing exposure to publicity that might "reasonably entertain a doubt that the judge would be able to be impartial."

The recall campaign argues Persky's sentence was lenient compared to other Santa Clara County judges' for similar cases. The anti-recall campaign argues that Persky properly followed the recommendations of the district attorney's office, defense attorney and probation department.

Was this a plea bargain? No. Court documents show this was an "open plea" rather than an agreement between the defense and the district attorney's office, meaning the judge set the sentence Chain received.

Did the district attorney's office object to the sentence? No. Former Santa Clara County prosecutor Bret Wasley, who was assigned to the case, told the Weekly that he did not object and that his priority was that Chain plead to a felony to ensure a higher level of supervision, rather than get additional jail time.

Did Persky approve Chain's attorney's motion to reduce his felony to a misdemeanor? No. Persky said at the June 4, 2015, sentencing that Chain should be "subject to a more formal period of supervision than misdemeanor probation would afford" but added that he would be "receptive" to reducing the charge to a misdemeanor after one year of compliance with probation, according to a court transcript.

Did Persky's sentence depart from the probation department's recommendation? No, but there's a caveat. The probation department recommended "a minimum term," noting the severity of the crime balanced against mitigating factors, including Chain's remorse, early plea and participation in treatment. However, Persky also said at sentencing that the court would be "receptive" to considering a reduction of the charge to a misdemeanor after one year of formal probation, while the probation department recommended Chain complete two years first.

Was Persky's sentence unusual? Deputy District Attorney Terry Harman wrote in a 2016 email to recall campaign chair Michele Dauber, released under a Public Records Act request, that the sentence was "quite low" but that Persky "is not the only judge who has given less than 6 months" in child pornography cases. "In general, first-time porn possession cases garner six months (in) county jail unless there is some aggravating factor warranting more time (i.e., the number of images)," Harman wrote.

The recall campaign researched sentencing outcomes for felony possession of child pornography in Santa Clara County between 2012 and 2016, comparing defendants who were also arrested as the result of child-pornography "sweeps," charged as first-time child-pornography offenders, had similar amounts and types of material, were charged with the same crime and also pleaded guilty or no contest to the charged offense. In 14 cases during that time period, every other defendant received a sentence of six months, according to the recall campaign.

Weekend jail for battery conviction

Ming Hsuan Chiang was arrested in Sunnyvale in October 2014 for domestic violence against his fiance, including punching her in the face multiple times, the victim told police. Chiang, then 35 years old and living in Sunnyvale, is from Taiwan. He was employed by Cisco Systems as a software engineer at the time. He had no prior criminal history.

Chiang was initially charged with battery. Under a plea bargain with Chiang's attorney, without Persky's involvement, the district attorney's office amended the charge to battery with serious bodily injury, according to prosecutor Kalila Spain, who was assigned to the case. Chiang pleaded no contest on April 8, 2016. Persky postponed his sentencing until after Chiang was set to renew his immigration visa, according to court records. DA Jeff Rosen's "collateral consequences" policy, directing prosecutors to consider immigration and other potential consequences to charges filed, may have played a role.

The probation department found Chiang exhibited four of 21 domestic-violence risk factors: history of violence against victim, homicide threats, rage and access to victim. Probation recommended that his sentence be suspended, he serve 72 days in county jail, he enroll in a domestic violence program, pay restitution and other fees.

Chiang was sentenced on June 2, 2016, to 72 days in-camp in county jail (meaning he would serve his sentence on weekends), 20 hours of community service, three years of formal probation, completion of a domestic violence program and to pay restitution to the victim (later determined to be $1,183).

The recall campaign argues that Persky showed deference to Chiang over the victim, who made an impact statement in court in front of Persky, by postponing his sentencing and allowing him to serve time on weekends. The anti-recall campaign argues that Persky allowed Chiang to work on weekends to keep his job so he could pay restitution to the victim.

Why did Persky allow Chiang to serve his sentence on the weekends? Persky approved a request from Chiang's attorney to do this so he could keep his job to pay restitution to the victim, according to Spain.

Was it unusual for Persky to postpone Chiang's sentence? No. Spain said that it was postponed while the appropriate amount of restitution was determined, which didn't take place until after sentencing.

Was there a full probation report in this case? No. Persky waived the referral to probation for a full report. But the department provided a scaled-down report that recommended conditions for sentencing and restitution and included the department's assessment of Chiang's risk of further domestic violence.

A deferred sentence

Ikaika Gunderson was arrested in Sunnyvale in February 2015 for committing domestic violence against his ex-girlfriend, whom he shoved, backhanded and choked while they were sitting in a car in a parking garage, according to a summary in the police report. Both were intoxicated at the time. Gunderson admitted to police to hitting and pushing the victim.

The crime carries a punishment in state prison of two, three or four years, or in a county jail for not more than one year, or by a fine of up to $6,000, or by both that fine and imprisonment, according to penal code.

Gunderson, who is Caucasian, was 21 years old at the time and living in San Jose. He pleaded no contest to the felony domestic violence charge on May 26, 2015. Because Gunderson planned to attend college and play football in Hawaii, Persky deferred his sentence to July 2016, requiring Gunderson to return with proof that he had attended at least one Alcoholics Anonymous or Narcotics Anonymous meeting per week and completed a 52-week domestic violence program in Hawaii.

Persky agreed to reduce his felony to a misdemeanor upon completion of these terms, according to court transcripts. Gunderson would then be placed on three years of probation. Persky scheduled a progress hearing for December 2015 and excused Gunderson from appearing, allowing him to instead send a signed progress report, according to the court transcript.

After Gunderson failed to attend all of his required AA meetings, Persky sentenced Gunderson on March 10, 2016, to four months in county jail, three years of probation, completion of a certified domestic violence program and payments to a battered women's shelter and domestic violence fund, among other fees. Persky agreed to defer Gunderson's surrender date to June 1 so Gunderson could finish the school year in Hawaii, the court transcript states.

At the probation department's request, a hearing was held instead on March 21, 2016, at which point a different judge was presiding over the case, and Gunderson was remanded to serve his sentence, according to the district attorney's office. Gunderson was released on May 18, 2016.

The recall campaign argues that Persky showed leniency to Gunderson by deferring his sentence and violated the Interstate Compact for Adult Offender Supervision by failing to notify the state of Hawaii that Gunderson would be moving there. The anti-recall campaign argues that the deferred sentencing was not uncommon for a young offender with no prior record, that the district attorney's office did not object to it, and that the Interstate Compact is not relevant to allegations of bias on Persky's part.

Was this a plea bargain? Did the DA object to the terms of the agreement? The district attorney's office did not sign the plea agreement but also did not object ot the terms of the agreement.

Was there a full probation report? Persky waived the referral to probation for a full report but later ordered a full report, according to court transcripts.

Was it unusual to defer Gunderson's sentencing for more than a year? It was not unprecedented, according to the district attorney's office. In most domestic violence cases, the sentencing occurs within a month or two of the plea, but it is within judge's discretion "to schedule sentencing based on the circumstances unique to a particular case or defendant," the DA's office wrote in emails released under the California Public Records Act. Judges may delay sentencing to avoid collateral consequences, such as on schooling or employment. "The sentence imposed in this case was not unusual," the DA's office stated, while the timing was "unusual, but not unprecedented."

Did Gunderson comply with the terms of his deferred sentence? No. By December 2015, Gunderson had not attended all of the required AA classes nor enrolled in school, according to a court transcript. Gunderson appeared in front of Persky in January 2016 having completed a portion of his domestic violence program and re-enrolled at the University of Hawaii. He planned to try out for the football team in the spring, according to a court transcript. Persky said that "if he's completely back on track with the original program and probation ... we can revert back to that." Prosecutor Ted Kajani objected, arguing that Gunderson's defense attorney, the judge and probation agreed in December that Gunderson "had not done what he laid out to do" and would be remanded into custody. Persky in January agreed but then requested a full report from probation and moved Gunderson's sentencing to March.

What is the Interstate Compact for Adult Offenders Supervision? Did it apply to this case? Yes. The compact "seeks to promote public safety" by supervising certain adult offenders who move to a new state.

Anthony Pennella, who oversees the interstate compact for the California Department of Corrections and Rehabilitation, confirmed to the Weekly that the compact applies to offenders whose sentencing has been deferred. An adult offender does not have to be on probation, according to the compact's Bench Book for Judges and Court Personnel. However, Pennella stated that a lack of awareness exists among judges as to when the compact applies. Gunderson, now living in Washington State, has been supervised under the compact since June 2016, Pennella confirmed.

What was Persky's responsibility in ensuring adherence to the compact? Pennella said this varies from county to county. Probation departments should be notified to initiate the transfer paperwork, he said. According to the DA's office, the defendant is required, once sentenced, to submit a transfer request to the Interstate Commission for Adult Offender Supervision.

At Gunderson's May 2015 plea hearing, prosecutor Kajani raised the issue for at least the second time, asking Persky if "probation needs to have any better understanding of the case given there would be out-of-state compacts," the court transcript states. It is unclear from the publicly available records whose failure resulted in Gunderson's lack of supervision in Hawaii.

Was Gunderson arrested on another domestic violence charge after leaving California? Yes. He was arrested on Dec. 18, 2015, in Washington State for punching his father.

Was Gunderson a college athlete? Yes. He played football for Foothill College in Los Altos Hills.

A case for comparison?

Raul Ramirez, then 32, was arrested in Sunnyvale on Nov. 15, 2014, for sexually assaulting his roommate, a five-months-pregnant woman. Ramirez was charged with sexual penetration by force, violence, duress, menace or dear of bodily injury; and assault with intent to commit rape. Ramirez admitted to the crimes in a police interview.

On March 29, 2016, Ramirez pleaded no contest to the first charge, which has a mandatory minimum sentence of three years in state prison for those who plead guilty or no contest and a maximum of eight years. He agreed to three years in state prison, three years of parole and lifetime sex-offender registration.

The recall campaign argues that Persky gave Ramirez, an immigrant from El Salvador, a harsher sentence than Brock Turner. The anti-recall campaign argues that the cases are distinct and cannot be compared. (Ramirez pleaded no contest to a different charge with a mandatory minimum under a plea bargain, whereas Turner pleaded not guilty and was convicted by a jury.)

Was this a plea bargain? Yes. The district attorney's office offered for Ramirez to plead to one of the felony charges and serve the minimum required prison sentence.

Was there a full probation report? Yes, according to court records.

Did Persky oversee Ramirez's plea? No. Judge Gilbert Brown presided over the plea, according to court records. Persky, however, presided over pretrial conferences and negotiations, according to an email from Harman.

Sentencing a JC football player

Keenan Smith was arrested in Sunnyvale in August 2015 on charges of domestic violence, criminal threats and felony assault after shoving his girlfriend twice; twice punching a witness who intervened, causing the man to lose consciousness; and threatening a second witness, according to the police report. Smith, who is African-American, was then 19 years old, living in Santa Clara and a student at the College of San Mateo, where he played football.

Smith was charged with three counts: felony battery causing serious bodily injury (for the first witness), felony inflicting corporal injury on a specific person (his girlfriend) and misdemeanor threats to commit a crime resulting in death or great bodily injury (the second witness).

Smith did not attend his first court appearance in August 2015 and was remanded with bail set at $60,000.

On March 2, 2016, Smith pleaded no contest to three misdemeanor charges, agreeing to 120 days in the county's Weekend Work Program (a jail alternative for low-risk offenders), three years of probation and completion of a 52-week domestic-violence program. He was ordered to attend weekend work on Saturdays and Sundays for the first four months and on Sundays only from August onward to accommodate his football schedule, according to Barbara Muller, the public defender assigned to his case. (Muller has endorsed and contributed to Persky's retain campaign.)

On July 14, 2016, the probation department received an affidavit of contempt due to Smith's failure to start his sentence in April due to "conflict with school schedule and work schedule."

In August 2016, Smith appeared before Persky after missing three domestic violence classes, according to the court transcript. The probation officer stated Smith would be remanded if he did not bring proof of enrollment at the next court of hearing. Persky stated that he would give Smith "one more and probably last chance" to complete the domestic violence program.

In October 2016, Smith missed two weekend work sessions, one for being late (an unexcused absence) and another when he had a football-related concussion (excused with a doctor's note), Muller said. The district attorney's office requested a hearing to argue Smith had violated his probation. Persky then modified Smith's probation to serve his sentence in-camp (in county jail) on weekends, according to Muller.

The recall campaign argues that Persky "tailored" Smith's sentence to his football schedule and failed to hold him accountable for probation violations. The anti-recall campaign argues Persky appropriately crafted a sentence that aimed at rehabilitating Smith by allowing him to stay in school, work full-time and play football to prevent him from re-offending.

Was this a plea bargain? Yes. The district attorney's office agreed to reduce the two felony charges in exchange for his no-contest plea, according to Muller.

Did Persky fail to hold Smith accountable for violating the terms of his probation? If an offender is not complying with the terms of his or her probation, the probation department would typically file a violation to bring it to the judge's attention, which probation did not do in this case, Muller said. She said the district attorney's office took the "highly unusual" step of requesting a hearing to argue Smith was in violation, which she attributed to media attention about the case.

Was Persky's sentence unusual? Muller said it is common for judges to craft sentences to accommodate low-risk offenders' work or school schedules. "They want people to remain in pro-social and educational and work environments if at all possible because that really is the only thing that prevents recidivism," she said.

Related articles:

Guest opinions: For and against the recall of Judge Persky

As recall vote nears, judge defends his record

Candidates for Persky's seat steer clear of Turner case

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Follow the Palo Alto Weekly/Palo Alto Online on Twitter @PaloAltoWeekly and Facebook for breaking news, local events, photos, videos and more.

Comments

22 people like this
Posted by Dude
a resident of another community
on May 16, 2018 at 3:04 pm

Wow. A reasonably balanced news article. Who would have expected that in this day and age of click-bait news...


46 people like this
Posted by Robyn
a resident of another community
on May 16, 2018 at 3:51 pm

The Judge did what Judges are expected and sworn to do...decide upon lawful punishment after considering 1. the statements of the victim and DA, 2. recommendations from probation after they do their own investigation and 3. the personal factors of the defendant.
This seems to be a personal vendetta by the professor who is a friend of the victim.
Lifetime registration is a lifetime consequences, a red letter.
I am voting against the recall.


23 people like this
Posted by William Hitchens
a resident of Waverly Park
on May 16, 2018 at 4:48 pm

William Hitchens is a registered user.

I voted against the recall because I feel very strongly that well-meaning fools who know nothing of The Law must not be allowed to tamper with it. I trust the US Rule of Law far more than I trust people who are thinking emotionally and not with legally informed brains. And no, I have nothing to do with the legal system, hence my no vote. I am not qualified to recall him, nor are a great majority of Santa Clara County voters. Just look at the mess in the White House to see what happens when poorly-educated, uninformed people vote en masse.


Posted by Name hidden
a resident of Another Mountain View Neighborhood

on May 16, 2018 at 4:53 pm

Due to repeated violations of our Terms of Use, comments from this poster are automatically removed. Why?


3 people like this
Posted by Me too
a resident of Sylvan Park
on May 16, 2018 at 5:17 pm

@William Hitchens
“just look at the mess in the White House, poorly educated”
One could also say, you aren’t the smartest tool in the shed. HA..
voting NO


10 people like this
Posted by @William Hitchens
a resident of Cuesta Park
on May 16, 2018 at 5:19 pm

It's quite peculiar that you consider yourself qualified enough to vote for a judge, but not qualified enough to recall one? Unless you're implying that you've never voted for a judge in previous elections.


5 people like this
Posted by RSmith
a resident of Waverly Park
on May 17, 2018 at 8:12 am

RSmith is a registered user.

Our Peninsula Foodist, Elena Kadvany, leaves out very important facts for each case and doesn't bring up all of the former cases that are at the center of the recall campaign.

Let's start with an egregious case that she failed to mention first had me mortified which was when he victim-shamed the "De Anza Gang Rape" victim. It's a case in which several members of the De Anza College baseball team allegedly gang-raped an unconscious 17-year-old girl. Persky allowed highly prejudicial and revealing photos of the victim taken nearly a year after the crime to be shown to the jury. He also barred a second victim (Jane Doe #2), who alleged a very similar crime, from testifying so the jury was not able to consider allegations that the alleged assault was part of a pattern. Judge Persky also blocked the jury from knowing that the baseball players had all taken the Fifth in their depositions.

The result of Judge Persky’s biased rulings in this case was that none of the defendants were found liable and one juror left the courtroom saying that “She came there kind of looking for it,” while another juror said that the unconscious victim hadn’t been totally “comatose”, so “she was just having a good time.” Her lawyers called the impact of the photos “prejudicial” and questioned other rulings by Persky that, according to Barbara Spector, one of the lawyers for the victim, “favored” the defendants. Monica Burneikis, another of the victim’s lawyers, told NBC that “it seems that Judge Persky’s focus is not seeking justice for the victim but rather on protecting the perpetrator.”

There are more details omitted in the cases above like with the Gunderson case one of Judge Persky’s supporters has harshly criticized his handling of the Gunderson case. Retired Judge LaDoris Cordell told Buzzfeed News that “There are so many problems with how this case was handled that I’m not even sure where to start . . . The system is set up so that if someone has admitted a violent offense and is now a convicted felon, they should be closely monitored,” Cordell said. “You don’t just cross your fingers and hope everything is going to be fine.”

I probably lost people at this point, but, look it up and make your own decision if you think we have a judge that has a habit of providing lenient sentences for athletes and those that he identifies with. If we can elect 'em, we can recall them!


3 people like this
Posted by bobgnote
a resident of another community
on May 20, 2018 at 7:18 am

bobgnote is a registered user.

WHAT, you mean the plea-deal cases? ANALYZE THIS! Which finger am I holding up?

ONLY ONE!

AH, 'patterns.'

Like too tangled, with a web, woven wickedly, so I am banned by PA Weekly, SJ Mercury, all kinds of spam-sites, and any library or media center where I composed and printed out many of the 65+ unheard habeas corpus petitions, unsupported by Calbar or any court, while I am actually innocent and harassed by false process profiteers.

And along comes BROCK TURNER, JOSE GARCIA-ZARATE, A.J. GONZALEZ, and the rest, killing a girl, while other MUJAHIDIN set wild-fires.

Seen GAME OF THRONES? There's a Dana Perino-Bash person! Not too real, is she?

Conduct DISCOVERY, girls. We're ACTUALLY INNOCENT, and you keep CHURNING, like little milk-maids, pounding away because your bully-boys don't investigate.

AND THEY DON'T REPORT OR TAKE REPORTS, ALL DAY AND NIGHT, WHILE BANGING WITH YOU.

So discover, or DON'T COME TO AMERICA, to see U2.

As for The EAGLES? One-point-landing baiting by fake musicians, selling you even MORE plagiarism, based on MY PLAYING is to be discouraged in 2018.

That's why Boston Bombing 2013, by guys who look like Stallone brothers, SINCE EYE OF THE TIGER is one of the AC-DC through ZZ Top rips, off my Gibson MM1, which you and MVPD let my family rip off and sell, while Wells Fargo rolls me, in San Jose, and you've been reporting anomaly things from my fatwa, since John Lennon was shot and Santana Row fire 2002 was about USPO Joe called me in for urinalysis because I burned one during probation for a Mueller fraud, now killing, AROUND THE WORLD.

Enjoy Ramadan 2018, but the suspense is about YOUR REFUSAL TO REPORT ANY REAL FACTS, including the kind for submission to evidence, in thousands of injure courts, AROUND THE WORLD.

And SOMEHOW, females who knew they'd cheated me to roll me in San Jose all came to involve this situation of actually related cases with Judge Persky, his success at process, but his profile, by persons, too corrupt, for basic enforcement, trying to make it as uneven as possible, to conspire to violate the Act, to incite riot and mayhem, OVER DECADES, while suppressing my facts.

Enjoy the USDC if you don't settle, whether you recall a Judge or not because D61 FD STEPHEN MANLEY is why STEPHEN Paddock in Vegas led to Austin Chief Brian MANLEY announcing bomber Conditt's demise, so go figure!

You are going to get sued, from here, there, and from Broward, where they get hit EVERY YEAR, over D48 Bernal, D23 1368 PC court, to D61 MANLEY, with the patch on his left, so Abu Hamza, announcing the Vegas hit, from May 2017 looks like #7 Colin Kaepernick, so get smarter about this than you were, given here's FOOTBALL.


9 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 20, 2018 at 11:24 am

The Business Man is a registered user.

Posted by The Business Man

One argued in a related story:

“Turner got a 6 month punishment, of which he served 3 months time. He will have the sex crime reporting with law enforcement for the rest of his life. His career is wrecked, his Stanford education is wrecked. He had to quit Stanford, he had to leave California. The woman suffered no physical injury, did not get pregnant. Judge Persky should not be recalled for this decision.”

Oh poor Turner, he didn’t physically touch another person without proper consent, engaged in sexual activity without consent, and violated one of our most cherished trusts, using another for his sexual gratification. What alternative reality are you basing that one must be accountable for their actions. I am MALE and I CANNOT tolerate this kind of abuse of another.

He got off light in my point of view. He is lucky he did not live in a justice system that would require equal actions done to him. The idea that he had to quit Stanford is laughable, it is a PRIVILEGE to attend college NOT A RIGHT. He has PROVEN himself a danger to others, so he DESERVES the increased scrutiny of his actions by registering as a sex offender. He did NOT HAVE TO LEAVE California THAT was his CHOICE. Just like he had the CHOICE either to conduct himself properly in the first place.

So give me a break. A MAN OF QUALITY EMBRACES WOMEN'S EQUALITY AND DIGNITY

HE DOES NOT POSSESS THAT QUALITY


Sorry, but further commenting on this topic has been closed.

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