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.
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.
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