State commission: No evidence of judicial bias in Brock Turner sentencing

Embattled Santa Clara County Superior Court Judge Aaron Persky, who was widely criticized for his sentencing of former Stanford University student Brock Turner, was cleared of judicial misconduct on Monday by the California Commission on Judicial Performance.

In a ruling released Monday, the commission determined that Persky did not abuse his authority nor exhibit bias in the Turner sentencing, as well as in other cases that have been reported by the national campaign to recall the judge as evidence of his alleged bias. In the wake of Turner’s controversial sentencing this June, national women’s advocacy organization Ultra Violet delivered a petition with close to 1 million signatures to the judicial commission, calling for Persky’s removal.

“Many complainants asked the commission to ensure that the sentencing in this case matches both the crime and the jury’s verdict and to be sure that justice is done,” the ruling states. “The commission is not a reviewing court — it has no power to reverse judicial decisions or to direct any court to do so — irrespective of whether the commission agrees or disagrees with a judge’s decision.

“It is not the role of the commission to discipline judges for judicial decisions unless bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty is established by clear and convincing evidence,” the ruling states, concluding that this was not the case with Persky.

The ruling rejects criticisms that Persky was biased in Turner’s favor because of his race, socioeconomic status and affiliation as a Stanford athlete (Persky is a Stanford graduate and former lacrosse player). Persky’s six-month sentence for Turner, who had been convicted by a jury of three felony sexual-assault charges, was lawful and consistent with the probation department’s recommendation, the commission’s ruling states.

Persky’s lawyer, Kathleen Ewins, said in a statement that “It is clear that the commission carefully examined the facts and factors Judge Persky considered in sentencing Brock Turner before concluding he engaged in no ethical wrongdoing.”

“Rather, the commission recognized that he made a reasoned, but unpopular, decision,” she said.

Stanford law professor Michele Dauber, chair of the Recall Persky effort, said in a statement that the campaign “strongly” disagrees with the commission’s ruling, maintaining that Perksy “has in fact demonstrated a clear pattern of bias in cases of sex crimes and violence against women.”

“This report simply highlights what we have been saying from the beginning, which is that a petition for judicial discipline was not the correct venue to address these concerns, and the recall is the only realistic way to remove Judge Persky from office,” Dauber said.

UltraViolet described the ruling as “an example of our national rape culture epidemic at work,” the group wrote.

“Persky’s decision in the case of Brock Turner — and other abusers — undermined faith in the criminal justice system and will impact the willingness of sexual assault survivors to seek justice through the courts for years to come,” UltraViolet stated.

Dauber also contends the commission’s ruling is based in part on some “serious factual errors” related to other cases Persky presided over, including that he followed the probation report’s recommendation for sentencing in “some cases in which there was no full probation report,” she said.

The ruling addresses Persky’s role in four other cases, rejecting the allegation that he does not take violence against women seriously and that he showed bias in favor of defendants who are white, privileged or college athletes.

The commission points to other judges who have been disciplined for misconduct as being in “stark contrast” to Persky, including a judge who referred to a rape victim as a “horse’s ass” and another judge who said during a sentencing hearing that, “I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted.”

The commission also ruled that Persky was not required to disclose his Stanford affiliation nor recuse himself from the Turner case, stating that he has had “minimal ties” to the university since graduating in 1985. Stanford was also not a party nor counsel in the case, “making his association with his alma mater even more attenuated as a ground for recusal,” the commission notes.

The 11-member body, which is made up of two lawyers, three judicial officers and six members of the public, unanimously voted to close, without discipline, its preliminary investigation of complaints filed against Persky. Commission members Erica R. Yew of the Santa Clara County Superior Court and public-member Richard Simpson, a recently retired special assistant to the state Assembly speaker, recused themselves. (Simpson told the Weekly that he recused himself as a recent employee of legislators who filed a complaint with the commission calling for an investigation into Persky’s conduct.)

The ruling ends with a quote from the California Code of Judicial Ethics: “An independent, impartial, and honorable judiciary is indispensable to justice in our society.

“An independent judge is one who is able to rule as he or she determines appropriate, without fear of jeopardy or punishment,” it continues. “So long as the judge makes rulings in good faith, and in an effort to follow the law as the judge understands it, the usual safeguard against error or overreaching lies in the adversary system and appellate review.”

In August, Persky stepped back from hearing criminal cases and moved from the Palo Alto courthouse, where he presided over the Turner case to San Jose. He also launched his own “Retain Judge Persky” campaign in response to the recall effort.

The next month, Turner was released after serving half his sentence in county jail in San Jose due to credit for good behavior.

Dauber said the recall effort has raised enough money to collect signatures to place a recall on the November 2017 ballot and will begin to seek signatures in April.