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Editorial: Recall Judge Persky

Accountability to the public does not threaten judicial independence

While the campaigns for and against the recall of Santa Clara County Superior Court Judge Aaron Persky argue vociferously over each other's campaign tactics and the details of past sexual assault cases handled by Persky, the fundamental question for voters is how to strike the right balance between judicial independence and accountability to the community. Both are not only possible, but essential.

Judge Persky and those opposing his recall argue that nothing short of illegal behavior, incompetence or gross misconduct should be cause for removing a judge. If done for any other reason, they believe, judges will be intimidated into imposing harsher sentences out of fear they too might be recalled. The fact that the California court system has had only two previous recall elections in its history, with the last one 86 years ago, strongly suggests otherwise.

But more importantly, the California Constitution provides for this process and gives voters the absolute power to recall judges for any reason.

Unlike the U.S. Constitution, which gives federal judges lifetime appointments, the California Constitution requires that state judges stand for election every six years and allows for recall elections between regular elections upon submission of valid signatures of 20 percent of a county's registered voters, an extraordinarily high bar. It provides no guidance as to the standards for removal from office, leaving it to voters to make their own judgment.

So challenges to the very legitimacy of this election are unfair, undemocratic and directly contradicted by the law. Those who don't like the recall provision have every right to seek a change in the Constitution, but they have no right to criticize those who are availing themselves of the legal opportunity to challenge the fitness of Judge Persky to remain on the bench.

It is equally wrong to suggest that a recall election is anything other than an early vote on a judge that must stand for election anyway. Had Judge Persky coincidentally been on the ballot this year for re-election instead of four years from now, the campaign would have been no different except there would have been no burden of gathering almost 100,000 signatures nor any debate over the Constitutional recall provision.

Similarly, we find the argument that appointment of judges by the Governor is more likely to insulate the judiciary from political influences than the election of judges to be disingenuous and irrelevant. First, Gubernatorial appointments are inherently and obviously political, and done entirely in secret. But more importantly, that is not the issue before voters.

Instead, voters must decide whether or not Judge Persky's use of his discretionary sentencing powers in sexual assault cases has furthered the interests of justice and created an environment where victims of sexual assault will find the process fair and worthy of being re-traumatized during a trial.

On this question, we believe Judge Persky has failed the community so badly that he must be replaced.

A unanimous jury, after hearing all the evidence and testimony, convicted Stanford freshman swimmer Brock Turner in 2016 of three felonies for his sexual assault of an unconscious woman on the ground outside a Stanford fraternity. The Turner case was a rare instance of a sexual assault being witnessed and interrupted by uninvolved passersby. Two graduate students riding by on their bikes intervened, chased Turner as he attempted to flee and held him until police and paramedics arrived. Sexual assault cases rarely get any stronger than this one.

Persky's six-month sentence of Turner, which resulted in Turner only actually serving three months due to the standard 50 percent reduction of time for "good behavior," undermined the jury verdict and stunned the nation for its leniency. It sent exactly the opposite message hoped for by the victim and those seeking to reduce the high incidence of sexual assault on college campuses.

Under California law, the presumptive minimum sentence for Turner's convictions was two years unless the judge found, as did Judge Persky, unusual mitigating circumstances. The District Attorney asked for six years. But the probation department recommended just six months based on Turner's age, his lack of a significant criminal record (he had already been arrested earlier in his first quarter at Stanford for drinking) and on incorrect information about Turner's previous high school experience with drug and alcohol use (he asserted to the court his first use was at Stanford).

We will never know the damage done by Judge Persky's minimal sentence of Brock Turner and how many future victims of sexual assault will choose not to press charges out of fear that a judge might similarly upend a jury verdict by imposing a diminutive sentence. But that threat is far more real and potentially dangerous to our judicial system than the remote possibility that the removal of Persky will strike fear in other judges and lead to inappropriately harsh sentences of convicted defendants.

Judge Persky abused his discretion, disrespected a jury, failed a crime victim and broke trust with the public he serves. There is no judicial accountability if these failures don't lead to his removal from office.

Related articles:

Guest opinions: For and against the recall of Judge Persky

As recall vote nears, judge defends his record

Analysis: the 'pattern' cases

Editorial endorsements reflect the opinion of the editorial board of the Mountain View Voice and do not affect the operations of the newsroom or its staff.

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Comments

8 people like this
Posted by Well said
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 8:08 am

A very astute opinion piece on why Persky should be recalled.

[Portion removed due to disrespectful comment or offensive language]


14 people like this
Posted by Gary
a resident of Sylvan Park
on May 18, 2018 at 8:47 am

Gary is a registered user.

Proponents of the recall cannot name a current judge of the Superior Court in Santa Clara County (out of some 80 of them - a third female) who would have sentenced Brock Turner to prison - even for the short stint now required by a change in state law. Throughout history, the whole system has gone fat too easy on rapists and molesters - in California and across the country. The rest of the world is even worse. But this judge is being scapegoated - used to send a message. Voters have to decide whether sending a message is a good enough reason to recall one judge. In the current environment and with the expected low turnout, the answer will probably be YES to the recall and a good judge will have to find another job.


22 people like this
Posted by Everyone I talk to voting No
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 9:06 am

I dunno Gary. so many see it an undermining the idea of an independent judiciary that they are voting no. I will as well. The campaign is emotionally misguided. The judge acted 100% within the law. 100%. The recall proponents are only interested in some sort of revenge "pelt", not in changing the laws that this judge acted within. Where is the effort to change the laws? No, we just need to hang someone from a tree and feel like we've solved something.

It's chilling that it has come this far, but I'm hoping other voters see through the recall efforts.


21 people like this
Posted by Common sense
a resident of Old Mountain View
on May 18, 2018 at 9:55 am

Common sense is a registered user.

Gary has it right. Other judges spoke out, the same frustrating outcome was likely without Persky. But that's reason, and the main theme here is emotion.

I think this perpetrator got off way too lightly. Problems come up, though, if you look hard at arguments from people on the "recall" bandwagon who haven't examined it closely. Besides wreaking revenge, there's little they can change now that hasn't been already.

People who claim to've "reviewed Persky's sentencing record" are routinely wrong: all they've ever seen is Michelle Dauber's half-dozen cherry-picked examples out of 2000 Persky cases. Former Judge LaDoris Cordell said in an interview that you could "find" similar "patterns of bias" for any other sitting Superior-Court judge, including Cordell herself, by the same cherry-picking method. (And Dauber, as other local new media point out, isn't a California attorney, and has argued no Superior Court cases here.)

The law has been changed already to tighten future sentencing. Messages have clearly been sent already. The other judges have explained the sentencing reality they all faced. The perpetrator is beyond reach. What does that leave? Revenge. Punish Persky in the assailant's place. If you think about that motive, it loses weight. An emotional more than a rational response. They'll feel good for a while about getting their scapegoat, and only later really consider the effects of altering the judiciary population. And if they find (way, way too late) that they don't like those effects, we can expect the ageless, valueless excuse: "that wasn't what I intended."


123 people like this
Posted by Carol
a resident of Waverly Park
on May 18, 2018 at 2:28 pm

This doesn't make sense. Is the MV Voice editorial board unable to come up with their own opinion? Why use the PA Weekly's? Why give them space? They have their own publication.

The PA Weekly uses the same lack of reasoning the recall campaign does. They call for accountability while acknowledging that Persky followed the law. Judges should not be accountable to public passions, only the law. If public passions result in changes in the law, so be it, but that is the route to be taken, not an end-run around the legislature. And arguments that this recall will not affect judicial independence are make-believe. In this day of rapid-fire Twitter rage, anyone with a story to spin can rally supporters to their cause and raise money to threaten a judge with whom they disagree.

Vote NO on the recall.


18 people like this
Posted by Real problem
a resident of Rex Manor
on May 18, 2018 at 2:41 pm

"But the probation department recommended just six months"

Isn't this actually the problem?


85 people like this
Posted by Vote no on recall
a resident of Cuesta Park
on May 18, 2018 at 2:54 pm

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.


29 people like this
Posted by vonlost
a resident of Cuesta Park
on May 18, 2018 at 2:56 pm

Reading “• Analysis: the 'pattern' cases” shows that Judge Persky acted correctly in the Turner case.


18 people like this
Posted by William Hitchens
a resident of Waverly Park
on May 18, 2018 at 3:04 pm

William Hitchens is a registered user.

We're in trouble when ideological extremists try to place their moral beliefs (correct or not) above The Rule of Law. I we voted "NO" because we think that it's highly dangerous when unscrupulous people with no regard or respect for the law start trying to mess with it. Just look at what the Trump Administration is doing in DC! Damaging the US Rule of law. Do we really want the same mob mentality at work in CA?


10 people like this
Posted by @William Hitchens
a resident of Blossom Valley
on May 18, 2018 at 3:22 pm

[Post removed due to disrespectful comment or offensive language]


14 people like this
Posted by William Hitchens
a resident of Waverly Park
on May 18, 2018 at 3:37 pm

William Hitchens is a registered user.

[Portion removed due to disrespectful comment or offensive language]
We held our noses and voted for Hillary because we viewed her as by far the least of three evils (if you include Bernie Sanders). Politically, we're moderate Independents --- an endangered species in CA. We knew that Trump and Bernie (and their supporters) were total disasters for the USA as soon as they announced they were running.


23 people like this
Posted by Carol
a resident of Waverly Park
on May 18, 2018 at 5:25 pm

The recall campaign dismisses the notion that judicial independence is threatened if Judge Persky is removed from the bench. However, another commenter noted that any future victim wanting to put pressure on the court need only call Michele Dauber and get her tweeting. Does that sound like judicial independence to you? Sounds more like hostage-taking to me.


43 people like this
Posted by Robyn
a resident of another community
on May 18, 2018 at 5:35 pm

I voted NO.


8 people like this
Posted by Maher
a resident of Martens-Carmelita
on May 18, 2018 at 6:00 pm

IT WAS RAPE PEOPLE !!! That's a felony crime for which I prefer a mandatory death penalty or life in prison PERIOD. T

Reviews of Persky's rulings in sexual assault trials show a pattern of lenience for "the boys who need to pursue their dreams". Rape is a violent attack not only on the body of a girl/woman (using a penis instead of a fist); it is also a violent attack on a girl/woman's spirit and vitality... an attack from which many women do not recover... ever.

So, let's take the premise that any male who uses this arrogant, vicious controlling act against a female does by that act agree to forego his future. That sounds fair to me.

GET RID OF THIS TWISTED boys clubber JUDGE.


17 people like this
Posted by Plagerism?
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 6:05 pm

Funny, but this editorial is a carbon copy of the one that ran in the weekly last week. I thought the voice was an independent paper from the weekly and had its own editorial staff. Apparently now. Is the voice worried about upsetting Michelle dauber?
Regardless, articles in the weekly, the daily post and the voice have concluded that the 6 cases that the pro recall campaign cite as evidence of persky being a biased judge, so no such pattern at all.
So I am really surprised that the voice did not exercise some real independence and show spine spine with its editorial, unlike the weekly. Of course both papers are connected to bill Johnson.


9 people like this
Posted by Bob G
a resident of Waverly Park
on May 18, 2018 at 6:13 pm

I have no idea who 'bill Johnson' might be, but feel the Voice most certainly lost credibility with this endorsement. The issue is not whether rape is wrong; it's one of the integrity of our court system. Too bad we can't recall Supreme Court Justices. I would be open to that idea.


38 people like this
Posted by Plagerism?
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 6:31 pm

Bob— bill Johnson is the CEO of embracadero media. Embarcadero media publishes the weekly, the voice and the Mello Park weekly.
The weekly has always been a big supporter of everything the daubers stand for.
Despite their own stories discrediting the main claims of the antipersky forces, they still come out this editorial. The most ridiculous claims in the editorial are the ones at the end where they claim that persky disrespected a jury and abused his discretion. One wonders who really wrote the editorial.


7 people like this
Posted by Agreed
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 6:49 pm

Persky should be recalled. There are some voters who will always side with rapists, but in this area they should be in the minority.

Rape is a very serious crime and each instance hurts many more people than the victim. The judge erred and needs to be replaced.


61 people like this
Posted by Plagerism?
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 7:05 pm

Agreed— quite the overheated rhetoric. No one is siding with rapists. But your comment is typical of the low road taken by dauber and the recall persky campaign.
And if you were actually familiar with the case, you would know that a charge of rape was never made against turner.
Why do you lie and distort the facts?


47 people like this
Posted by Alex Pope
a resident of another community
on May 18, 2018 at 7:06 pm

A MODEST PROPOSAL

In the future, why don’t we let the public vote on the sentence for any high profile case? That would save us the trouble of getting frustrated with judges after the fact. It would also dispense with the facade of judicial independence.

I strongly disagree with the Brock Turner sentence. But I don’t see why one bad decision is a reason to remove a judge who has presided over thousands of cases in his over 15 years on the bench. Just a week ago, the MV Voice ran a thoughtful piece scrutinizing the alleged “pattern” of cases appearing in the anti-Persky attack ads. Now, the MV Voice runs an editorial arguing that one bad decision is enough.

This is shameful. A recall should be used for cases of true judicial misconduct— not to object to a sentencing decision in one high profile case.


7 people like this
Posted by Shame
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 8:59 pm

Shame indeed. The previous poster argues that since the crime was not technically rape, but simply sexual assault, that the judge’s obvious favoritism toward to the defendant should go unanswered.

It is typical right-wing nonsense to whitewash sexual crimes against women and the voters have had enough! A message will be sent that the judge is responsible for sentencing properly and not merely copying the probation department recommendation.

If our right-wing friends think that judicial recalls are unfair, then change the law. Eliminate the recall! In the meantime, it will be used in the same way that Persky used the law to send Brock back onto the streets. By the way, guess where Brock is serving is probation? He’s on Hawaii! That’s right, the judge let him leave the state and go to an island paradise.

Repeal!


113 people like this
Posted by Carol
a resident of Waverly Park
on May 18, 2018 at 9:34 pm

@Shame - You err in believing that those opposed to the recall are right-wingers who minimize sex crimes against women. Judge Persky enjoys the support of Hon. LaDoris Cordell, a staunch feminist, and Nancy Clark, a former board member of the Support Network for Battered Women. Indeed, I know many, many women who feel that the recall effort undermines feminism. What many recall supporters are ignoring is that attacks on the judiciary have historically been launched by conservatives against judges they felt were too "soft" on crime. It is indeed ironic that many recall supporters fail to see how they have now allied themselves with those they used to criticize.


5 people like this
Posted by Oh
a resident of Another Mountain View Neighborhood
on May 18, 2018 at 9:45 pm

So, since a few women support keeping on Persky, everyone should believe that he enjoys the support of all women? The anti-recall coalition keeps publishing misinformation. Most liberal orgs support the recall and most conservatives support keeping the judge in place. Those are the facts.


84 people like this
Posted by Carol
a resident of Waverly Park
on May 18, 2018 at 10:29 pm

@Oh - you are good at twisting words. I did not say he enjoys the support of all women. And it is humorous that you believe it is the anti-recall campaign that is putting out misinformation. Persky is ethically bound from speaking about his cases, so the recall campaign has taken full advantage of that and painted a picture of him that is infused with mischaracterizations and deceptions. Read some objective articles about Persky's cases (i.e., not the recall website). and you will see that the recall campaign has been the one disseminating misinformation.

And don't think for a second that the liberal groups that have allied themselves with the recall campaign are doing so altruistically. This is all about coalition-building and vote-getting. Individual politicians are likely receiving support from the same donors as the recall campaign. And if the recall succeeds in pressuring judges into giving out harsher sentences, then politicians won't have to shoulder the blame when mass incarceration of minorities goes up. They can still stand on their soapboxes arguing for sentencing reform, all the while knowing it won't matter if judges feel threatened by recalls. Very two-faced, indeed.


3 people like this
Posted by Observer
a resident of Cuernavaca
on May 19, 2018 at 7:51 am

Observer is a registered user.

It is amazing how emotional this topic has become. Sigh.


5 people like this
Posted by Lies
a resident of Another Mountain View Neighborhood
on May 19, 2018 at 8:28 am

[Portion removed due to disrespectful comment or offensive language]
“And if the recall succeeds in pressuring judges into giving out harsher sentences, then politicians won't have to shoulder the blame when mass incarceration of minorities goes up.”

How dare Carol invoke racial discrimination when talking about this issue. Remember, we have a judge with a proven track record for giving out light sentences to privileged, white, sex criminals! Racism already exists there. The recall sends a message to keep it fair.

[Portion removed due to disrespectful comment or offensive language]

Definitely voting Yes on this important recall.


116 people like this
Posted by Carol
a resident of Waverly Park
on May 19, 2018 at 9:05 am

@ Lies - Does your use of quotation marks around "she" imply that you think I'm not really a woman? Because I can assure you I am. And trying to use shame into pressuring voters to support the recall is a dubious strategy.

As for your allegation that Persky has a track record of racism, that has been debunked over and over by credible organizations. If you read the MV-Voice article about his cases, you will see that they cover an African-American, a Pacific Islander, an Asian, a Latino, and a white man. Doesn't sound like a pattern to me.


3 people like this
Posted by bobgnote
a resident of another community
on May 20, 2018 at 6:53 am

bobgnote is a registered user.

[Post removed due to disrespectful comment or offensive language]


5 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 20, 2018 at 11:22 am

The Business Man is a registered user.

In response to Vote no on recall you said:

“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


33 people like this
Posted by Business Stats
a resident of another community
on May 20, 2018 at 5:02 pm

This recall is a political campaign having nothing to do with right and wrong, bias of a judge, or facts per se. But the proponents aren't honest. They do claim that they have evidence of bias, which would be a concern. Except they do not. They cherry pick 5 cases and none of these is very compelling. The damage they do is not as much by their political campaign of solidarity with a female victim as it is about lies that allegedly justify their wishes logically. So that's why I voted no. Perpetuating this myth that there has been specific bias on the part of judges is the real danger. How can the laws be changed after the fact and then this one judge did something wrong by applying the law as it existed at the time? Aren't they really saying that they find the judge not sufficiently prejudiced to their way of thinking?


Also, consider, the facts and history show there is clear bias because the entire judicial system finds sexual abuse to be mainly an all-male set of defendants. Isn't this unfair on the face of it? The few female defendants really get privileged treatment.


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

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