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Turner-trial judge criticized for bias in assault case

But supporters of Judge Aaron Persky argue that comparison is 'inflammatory'

Another local sexual-assault case has become the latest battleground in the continued debate over whether the judge who presided over the sentencing of former Stanford University student-athlete Brock Turner should be removed from the bench, with critics of the judge arguing it shows further evidence of judicial bias and his supporters warning it is misleading to compare the two cases.

The details of the Turner case are nationally well-known: Santa Clara County Superior Court Judge Aaron Persky sentenced Turner, 20, to six months in jail, three years' probation and lifetime registration as a sex offender for sexually assaulting an unconscious and intoxicated young woman outside a fraternity party on campus in January 2015. Persky's sentencing decision sparked outrage among many who decried it as too lenient and biased in favor of the young, white university athlete.

These same critics are now pointing to another sentencing decision by Persky -- three years in state prison, negotiated in a plea deal for an immigrant from El Salvador who admitted to sexually assaulting his roommate -- as further evidence of this partiality, though some of Persky's supporters say that it is misguided and even "inflammatory" to compare the two cases.

In the second case, first reported on by The Guardian newspaper, Raul Ramirez, 32, was arrested in Sunnyvale on Nov. 15, 2014, for sexually assaulting his roommate, a five-month-pregnant woman, according to court documents obtained by the Weekly. Ramirez and the woman were alone in the apartment, which they shared with several other roommates, including the woman's husband, according to a police report. She found a "love letter" on her bed from Ramirez, according to the statement she gave to police in Spanish that was later translated.

While she was reading the letter, Ramirez entered the room and blocked the door so she could not leave. He "forcefully" pulled down her pants and underwear and sexually fingered her, the police report reads. The woman told police that she said "no" numerous times and tried to stop Ramirez, but he "overpowered" her. He stopped when the woman started to cry.

Ramirez admitted to police that he "wanted to have sex with her, but she refused" and that she "told him to stop but he did not," according to his translated police statement. He "knew what he did was wrong, and he wanted to say sorry," the statement reads.

Ramirez was later charged with two felony counts: sexual penetration by force, violence, duress, menace, or fear of bodily injury; and assault with intent to commit rape. (Turner was also convicted of the latter charge, as well as sexual penetration with a foreign object of an intoxicated person and sexual penetration with a foreign object of an unconscious person. He faced a maximum of 14 years in prison for all three counts.)

Under a plea deal that Persky oversaw, Ramirez pleaded guilty to the first charge and will receive the mandatory minimum sentence for that crime: three years in state prison, according to a form Ramirez signed in March. He also must register as a sex offender for life. Like Turner, he had no prior criminal record, according to Alexander Cross, a private defense attorney who represented Ramirez for several months at the start of the case.

Ramirez, who is out on bail, was scheduled to appear in court for his sentencing in Palo Alto on June 30 but did not show up. He also failed to attend his probation interview, Public Defender Gary Goodman told Persky in court. Persky issued a no-bail warrant to secure Ramirez's appearance in court.

Michele Dauber, the Stanford law professor leading the effort to recall Persky, said the Ramirez case lays bare "disparities and injustices in the criminal justice system and the way that privilege plays a role in criminal justice system."

"It seems to be more evidence for the fact that he (Persky) really bent over backwards to give Turner an unreasonably lenient sentence when you compare it to the sentence for this individual, who was not an elite, privileged athlete and didn't get the same level of solicitude from the judge," she told the Weekly.

Persky's sentence for Turner followed a recommendation made by the county probation department to make a legal exception in the case and find unusual circumstances given several factors, including that Turner is young, has no significant criminal record and expressed remorse for his actions.

Ramirez, too, has no prior record and expressed remorse -- factors that "ordinarily would provide a basis for leniency," Dauber said.

Cross, however, said that the cases are "highly different, at least with the facts that matter." Ramirez admitted to the crime immediately and pleaded guilty; also, his statement matched the woman's.

In Turner's case, alcohol was involved (which Persky considered a mitigating factor in his sentence), the victim did not remember the assault due to intoxication, and questions were raised about consent. Turner admitted to digitally penetrating the woman but testified that the sexual contact was consensual.

The Ramirez case is "a lot more cut and dry, frankly," Cross said. "The Brock Turner case -- it's far more nuanced."

Santa Clara County Public Defender Sajid Khan, one of more than 100 public defenders who signed a June 15 letter to the California Commission on Judicial Performance in support of Persky, has similarly argued that it is misleading to compare the two cases.

In a June 30 blog post, Khan wrote that comparing the cases is like "comparing apples and oranges." Persky did not have the same legal authority or discretion to give a lesser sentence in the Ramirez case, Khan wrote.

While the crimes Turner was convicted of allow a judge to find unusual circumstances to grant probation, the crime that Ramirez pleaded guilty to, forcible sexual penetration, does not, according to Khan.

"Judge Persky, even if he desired, had no authority to dismiss or alter that charge so that Mr. Ramirez could receive a reduced penalty, as opposed to the three-year mandatory minimum prison term, if such a reduced term was merited," he wrote.

Questions about how active a role Persky did play -- or could have played -- in plea negotiations for Ramirez's case have been raised by supporters of the recall.

It is permissible under California law for judges to engage in discussions with defense attorneys and prosecutors about plea deals, Dauber argued.

Yet in this case, once Ramirez agreed to plead guilty to the felony sexual-penetration charge, he faced a mandatory minimum sentence, and probation and a lighter sentence were not options, said retired judge LaDoris Cordell.

"Judge Persky had no discretion to avoid the prison sentence of three years," she wrote in an email to the Weekly.

Plea bargains "can be achieved with or without the participation of the judge," Cordell explained. If a defendant and his or her attorney have worked out an agreement, they will simply present it to the judge.

"In those situations, unless the plea bargain is outrageous (too lenient, too harsh, or not in compliance with the law), judges tend to rubber stamp the bargains," she said. "Plea bargains can also be arrived at with the active involvement of judges whose participation is either to push the defendant or the prosecutor to make an agreement. Whether or not judges actively participate depends on the circumstances of the cases."

The prosecutor, not the judge, has final decision-making power over the charge or charges that are included in a plea bargain. Cordell said there were "many instances" when she was on the bench when she disagreed with the charges that prosecutors wanted for plea deals and argued against them, but the prosecutors "frequently did not budge."

Persky is barred from commenting publicly on pending cases. Michel Amaral, the deputy district attorney who prosecuted the Ramirez case, told the Weekly that Persky played more of a facilitating role during plea negotiations. The public defender's office wanted Ramirez to plead guilty to the second charge, assault with intent to commit rape, which carries a lower minimum of two years, Amaral said. Amaral's office wouldn't accept the public defender's offer and asked for three years in state prison for the more serious charge, sexual penetration by force.

Persky "seemed to approve" of the prosecution's position and "never leaned on the prosecution" to change the charge, Amaral said.

"He also wasn't adamantly in favor of the offer, either, (not) putting pressure on the defense" to accept it, he added.

While Amaral said he doesn't know Persky as well as other judges, his experience has been that Persky "tends to be more of a facilitator of discussions rather than someone who is going to apply pressure on one side or the other."

Persky was not initially assigned to the Ramirez case; court documents show it was originally overseen by Judge Allison Danner. Persky took over when she was transferred to San Jose, Amaral said.

And while Persky was present at the "majority" of plea negotiations meetings, Amaral said, and at several court appearances throughout last year, court documents show that the final plea conditions were handled by Judge Gilbert Brown, rather than Persky, in Palo Alto on March 29. The sentencing was to be finalized on June 30.

Cordell, who this week joined 17 other retired judges in issuing a letter of support for Persky on the grounds of judicial independence, said that plea bargains, not jury trials, produce the most criminal convictions. She ventured a guess that a review of plea bargains in Santa Clara County would show that they end in disproportionately harsher punishments for people of color and low-income people.

"It is my belief, albeit based on anecdotal information, that plea bargaining is filled with bias, both conscious and unconscious," she said.

Khan, for his part, doesn't disagree that privilege played a role in Turner's sentencing. The very factors that Persky considered to grant Turner probation -- his background, loss of a swimming scholarship and place at an elite, private university -- are themselves a result of privilege, Khan said.

But "to attribute the discrepancy between the Brock Turner sentence and Raul Ramirez's plea deal to Judge Persky and any sort of bias that he may harbor -- to me, it's really inflammatory," Khan said.

Reaction to sentencing continues in legal, public circles

About a month after Turner's sentencing, the sexual-assault case continues to elicit a strong public reaction.

On Tuesday, national women's advocacy organization Ultra Violet announced that nearly 5,400 people have signed a petition saying they would refuse to serve as a juror in Santa Clara County Superior Court Judge Aaron Persky's courtroom, though there is no indication of how many signers live in Santa Clara County.

On Wednesday, the 18 retired judges released their open letter in defense of Persky and judicial independence. The judges acknowledge that the case "presents serious questions about our society's treatment of crimes involving sexual assault and of criminal defendants from different socioeconomic backgrounds," but removing Persky based on an "unpopular" decision could set a dangerous precedent.

"Judicial independence is one of the core values of our democracy," the letter states. "It is based on the principle that each case should be decided on its particular facts and the applicable law rather than in response to political considerations or public opinion. It exists and thrives only when judges know that doing their job will not put their job at risk."

The California Judicial Code of Ethics prohibits sitting judges and commissioners from commenting on pending and impending cases, the letter notes.

Dauber told the Weekly that the letters' stance on appropriate reasons for a judge's removal -- for illegal or unethical conduct, compared to making a lawful decision, the letter states -- is inconsistent with the California Constitution.

"Under the California Constitution, judges are elected, and they can be unelected by the people. Under the law, judicial bias is a perfectly sound basis for a judicial election," she wrote in an email.

"In our view, the grant of discretion to a judge depends on having individuals who will exercise that discretion fairly and without bias, particularly bias on the basis of characteristics such as sex or race."

Meanwhile, the recall campaign has raised $300,000 so far, Dauber said. Organizers are planning major fundraising events in Palo Alto, Oakland and Brooklyn, as well as a rally in September, when Turner is scheduled to be released early from jail based on credit for good behavior.

---

The Palo Alto Weekly has created Storify pages to capture ongoing coverage of the Brock Turner case as well as sexual-assault issues at Stanford University. To view them, go to storify.com/paloaltoweekly.

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

Editor's note: This story inaccurately stated that final plea conditions were handled by Judge Gilbert Brown on June 30. It was on March 29.

Comments

17 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jul 8, 2016 at 10:50 am

mauricio is a registered user.

Drunkenness is not a mitigating factor in the sentencing of a convicted felon. It is something that Persky had pulled out of thin air in order to get Brock Turner off the hook. This alone should get him removed from his post. If a drunk driver runs a red light and kills a pedestrian, does he get his sentence reduced because he was drunk? Aaron Persky should not be a judge, period.


24 people like this
Posted by very similar
a resident of Midtown
on Jul 8, 2016 at 10:58 am

2 differences: alcohol and ethnicity/social class of the accused. My guess is that it's the 2nd that was the mitigating factor in Persky's sentencing of Turner, but it's impossible to prove.


10 people like this
Posted by very similar
a resident of Midtown
on Jul 8, 2016 at 11:00 am

Also, I would guess that Turner could afford a much better attorney than Ramirez and, as a consequence, did not plead guilty.


17 people like this
Posted by Thankfull to Dauber
a resident of Barron Park
on Jul 8, 2016 at 11:06 am

Again in the name of all rape victims I thank this extraordinary woman who is using her knowledge of the law to help and validate the victim in this case. I know there are many Emily's Doe out there who are still suffering the consequences of rape and I am one of them. Unlike Emily, I kept it quiet, and there have been times when I hate myself for not reporting it to the authorities, but now that I see the light sentence turner got, I know that keeping it quiet was the best. At that time no Michelle Dauber was around to help, and I am sure that probably my rapist would have been out with zero consequences for his wrong twenty minutes actions, or a a light sentence like the one Turner got. I know the victim will never be the same again, and she will have trouble when she has intimacy with other person. Hopefully she gets the right therapy to heal. Michelle Dauber for President after Clinton!!!


15 people like this
Posted by Judgmental
a resident of Midtown
on Jul 8, 2016 at 12:11 pm

Judgmental is a registered user.

Persky has a poor sense of judgment, which he continues to demonstrate. He appears to have a limited sense of impartiality, and may be biased [portion removed.] None of these are character traits a judge should have!


9 people like this
Posted by Caitlin
a resident of Mountain View
on Jul 8, 2016 at 12:57 pm

[Post removed.]


13 people like this
Posted by Cid Young
a resident of another community
on Jul 8, 2016 at 1:46 pm

I suppose Ramirez could have received a lighter sentencing had he, like Judge Persky and Brock Turner, been a Stanford athlete .... and white.


2 people like this
Posted by Gale Johnson
a resident of Adobe-Meadow
on Jul 8, 2016 at 2:44 pm

I've followed the story and read all the online articles and most of the post comments about it, but I've never spoken up before.

Thank you LaDoris Cordell for speaking out on this issue and signing the letter. I've had some online run-ins with you in the past on other issues, but not on this one. You made it very clear about the differences in those two separate cases involving sexual assaults. Laws sometimes tie judges hands. And I agree with your comment about plea bargaining bias, anecdotal as it is. We all have our own biases...I do...you do! And that comes into play. Also, Public Defender, Sajid Khan, didn't disagree that privilege played a part in this. It does and it did. Rich folks can afford the best lawyers...no surprise on that one. And any of us who have served on jury panels know that those people around us are not really our peers, in the dictionary sense. Such a wide spread of educational levels, values (most importantly family), work and social involvement in our community, etc. I guess that's the mix they're looking for jurists, but I often thought "I wouldn't want him/her to be my neighbor/friend/co-worker"! Should I have told the judge that so I could be excused? Probably!

So here we are, what do we do? I'll just pose a question about how we select our judges? One poster said they are appointed first and then elected after that. I doubt if that's the case, except for the rare cases when judges are appointed to fill a midterm vacancy...then have to be elected to keep that position. But a more important question...how many of us voters really know anything, I mean anything, about the judgeship candidates that we see on the ballots. Some do I'm sure, but I put myself into that class (let's keep the wealth argument going on this), of 1% ers vs the other 99% of us. I see their names and sometimes vote for one but sometimes don't vote at all. I'd be in the 99% that didn't know anything about them. There must be a better way of selection and accountability. It can't be left up to public opinion wanting to hang the judge. That's old west vigilante style justice. I hope we've moved forward and way beyond that.

And even though these are not political offices...wink,wink...judges have their own party affiliations and that too plays a part in their rulings. Now I'll put Ladoris to the test. Since you are a very liberal minded person, (I'm not sure if you're as far left as Bernie's left, but a Democrat nonetheless, and that's not a bad party to be in these days), but do you think your party affiliation ever played a part in your role in making decisions/rulings? Of course it did!


16 people like this
Posted by Alphonso
a resident of Los Altos Hills
on Jul 8, 2016 at 5:17 pm

Any fair minded person can see the clear difference between the two cases. In the Ramirez case he chose to plead guilty to a count that carries a mandatory sentence of three years. There was no mandatory three year sentence in the Turner case. The suggestion by Dauber that the two outcomes represent some sort of racial bias is absurd [portion removed.]


11 people like this
Posted by standforthetruth
a resident of another community
on Jul 8, 2016 at 11:13 pm

I agree. Additionally, the Turner case is a case of wrong place wrong time. Clearly a fopaux if you will. It was never rape, attempted or otherwise. All of the many details in the Turner case clear the 20 year old young man. It is so obvious what this case was. The details of the Ramirez case are clearly more disturbing and far more punishable. Secondly, I find it disheartening to hear that Dauber's helpers are fundraising for a Rally in September for when Brock is released.
How can this group be fighting for doing the right thing while planning to terrorize and further traumatize a 20 year old young man? He did not do anything to intentionally harm and he is being crucified yet this group is practically planning his demise and everyone is perfectly fine with it? I think it is time that each and every one take a long hard look at what is really going on here. What is the ulterior motive here and at what cost? The plaintiff had a letter written on her behalf for what reason and who's benefit? When is it going to be enough that this misconstrued case has already ruined two lives? What kind of people/group would rally outside of an already traumatized young man on his day of release? To further harass and shame him is very aggressive behavior. Let the young man get past this hell and rebuild his life. Karma is real. Think twice about who would really think this is right.


14 people like this
Posted by Fopaux?
a resident of College Terrace
on Jul 9, 2016 at 8:08 am

Fopaux? Fantastic, thank you for a chuckle to cut the bile of the rest of your post. Definition of a fopaux: "an embarrassing or tactless act or remark in a social situation." Thanks for clarifying, I thought it was attempted rape but it's more like a fly in your soup or not covering your mouth while yawning.

I'm off to have a nice bowl of fo.


4 people like this
Posted by baszia
a resident of another community
on Jul 9, 2016 at 6:40 pm

@ standforthetruth: 'the Turner case is a case of wrong place wrong time' - yeah, BT chose the wrong dumpster and those annoying Swedes just happened to arrive at the WRONG damn time!

'Clearly a fopaux if you will'... No, actually I won't and nor will all the women who are raped on a weekly basis on university campuses - BTW faux pas = false step in French and it was indeed a false step for BT; but it was quite a lot more than that.

You state: 'It was never rape, attempted or otherwise. All of the many details in the Turner case clear the 20 year old young man. It is so obvious what this case was.' So twelve jurors got it wrong? You have some inside knowledge on this? You should take it to the police in that case.

You opine: Secondly, I find it disheartening to hear that Dauber's helpers are fundraising for a Rally in September for when Brock is released.
How can this group be fighting for doing the right thing while planning to terrorize and further traumatize a 20 year old young man?' Yet nowhere in your post is the victim of this crime mentioned. It may be that BT's decision to protract the trauma of the (also) young victim of his crime by taking it to court and his intention to dispute his sentence are the aspects of the situation which are inflaming people.

'He did not do anything to intentionally harm' - look again at what he was convicted of - yes, he intentionally harmed his victim by sexually assaulting her, by lying, by taking the case to court, by blaming his behaviour on the demon alcohol rather than accepting responsibility himself for his actions.


'The plaintiff had a letter written on her behalf for what reason and who's benefit?' No, she wrote the letter herself, it was her right and in it she described her experiences, her trauma, her family's trauma, the destruction of her life and selfhood. By BT's actions. BTW WHOSE.

Oh, wait a minute, you DO mention the victim here, in passing: 'When is it going to be enough that this misconstrued case has already ruined two lives?' But hang on, it wasn't the misconstrued case that ruined two lives, it was BT's decision to sexually assault a drunken, subsequently unconscious, woman that ruined two lives.

'To further harass and shame him is very aggressive behavior.' - BT's behaviour and that of his defense team was very aggressive - sexual assault is by definition aggressive.

A movement has sprung up after this case; its impetus was the ludicrously light sentence handed down to BT.

Campus rape and sexual assault of young women (and of young men where that occurs), the acceptance of this phenomenon, the refusal of college authorities to take it seriously - the situation has reached a tipping point and a large number of people are no longer prepared to go along with the status quo. This case, unusual in that the perpetrator was caught in the act, was prosecuted (by his own choice, it should be said) and found 100% guilty of the charges. That the defendant was then given a very lenient sentence has provoked outrage. Since the trial, BT's case has become the symbol of, the exemplar, of the endemic refusal on the part of those in authority to take the assault and rape crisis seriously.

Perhaps campaigns to change minds and laws should focus on those in authority as much as on those who commit the crimes of assault and rape.

Clearly, institutions of education could be ideal launching pads for a new respectful sexual education. jUDGING From posts on this and other threads, it's WELL OVERDUE


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

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