News


Retired judges address efforts to remove Brock Turner judge in letter

Judges argue recall campaign threatens judicial independence

A letter released Wednesday by a group of retired Santa Clara County Superior Court judges speaks out against efforts to remove a current judge over his sentence for an ex-Stanford University swimmer convicted of sexual assault last month.

The letter addresses those seeking the removal of Superior Court Judge Aaron Persky for sentencing 20-year-old Brock Turner on June 2 to six months in county jail for three counts of sexual assault on an unconscious and intoxicated woman outside a fraternity party at the school in January 2015.

"We acknowledge and respect the deeply held views of those who disagree with Judge Persky's sentencing decision in the Turner case," the letter states. "At the same time, the full record in the case shows that Judge Persky made his decision after considering all the evidence presented at trial, the statements of the victim and the defendant, and a detailed report from an experienced probation officer," according to the letter.

Eighteen retired judges signed the letter, which states that the group isn't taking a side on whether or not the sentence was appropriate.

The letter goes on to say that "judicial independence" would be threatened if Persky were removed from his position.

Current judicial officers can't speak on the Turner case, but the limitation doesn't apply to retired judges, according to the letter.

Stanford law professor Michele Dauber, who is leading the national campaign to recall Persky, 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."

Since the sentencing, the case has received worldwide attention and many groups, such as national women's rights group Ultraviolet, that have spoken out against the punishment, which they consider lenient.

The victim's 12-page statement written to Turner describing the assault's impact on her life has been widely shared on the internet.

Online campaigns have circulated calling for Persky to be removed from the bench and more than a million people have signed their names to petitions that were submitted last month to the state Commission on Judicial Performance.

The case has also led to proposed Assembly Bill 2888, passed last week by the state Senate Public Safety Committee, that would require a minimum three-year sentence in state prison for those convicted of rape on unconscious victims, which would change current law allowing judges to impose probation on such defendants.

Santa Clara County District Attorney Jeff Rosen, who supports the proposed bill, has said that he doesn't agree with Persky's decision, but doesn't believe the judge should be taken off the bench.

---

To read the Palo Alto Weekly's ongoing coverage of the Brock Turner case as well as sexual-assault issues at Stanford University, go to the Weekly's Storify page.

Comments

53 people like this
Posted by RetiredJudge
a resident of Crescent Park
on Jul 6, 2016 at 5:08 pm

At last some sanity.


58 people like this
Posted by Wow
a resident of Adobe-Meadow
on Jul 6, 2016 at 7:42 pm

Wow is a registered user.

I agree that Persky probably shouldn't be removed for judicial misconduct. Recalling him him is another matter. If the voters don't like his judgment, then a recall is a reasonable step, as with any elected office.


51 people like this
Posted by Barron Park dad
a resident of Barron Park
on Jul 6, 2016 at 7:51 pm

I agree with Wow's comment immediately above. This judge has demonstrated horrible, horrible judgment in this high-profile case. I simply do not want this ELECTED official to represent our community any longer. On that basis, it is perfectly appropriate to call for his removal.


13 people like this
Posted by Learn a lesson
a resident of another community
on Jul 6, 2016 at 10:07 pm

Trial court level judges in California are usually appointed to start but must face election every six years. If no one runs against them, incumbent judges win by default (and their names do not even appear on the ballot). A third of the judges is up for election every two years (initially at the time of the statewide primary). What we need is for attorneys to better monitor judges and top attorneys to run against judges who are unsatisfactory. Any number of judges may have granted probation to other Brock Turners, for example. Unfortuantely, challenging an incumbent in a big county is a big financial undertaking. Public financing of elections down to the county level would help. But we also need to be careful in assessing what we want from judges. Competence, diligence and evenhandedness are among those desirable characteristics. Throwing the book at sexual batterers? Maybe. But such cases are often not so clear cut.


18 people like this
Posted by Online Name
a resident of Embarcadero Oaks/Leland
on Jul 7, 2016 at 2:15 am

In the past, I've tried to research judges running for election or re-election and the found there's rarely enough information to make any sort of judgment about the candidates. It would be wonderful if there were more coverage of the candidates so voters could make intelligent decisions.

In Perksy's case, of course, we all know his name but for others it's a challenge.


34 people like this
Posted by BOO
a resident of Midtown
on Jul 7, 2016 at 8:25 am

[Portion removed.]

Persky and the probation officer who recommended such a ridiculous sentence for Brock Turner obviously are not living in reality, can't recognize an offender who is likely to offend again, ignore obvious facts, and should be sent packing! The sooner the better before more damage is done!!!


33 people like this
Posted by sidwell
a resident of another community
on Jul 7, 2016 at 10:31 am

Why not focus our anger on Stanford's problem with wild parties well lubricated with booze and often consumed illegally by minors? Is it time to eliminate the troublesome "greek" communities?


32 people like this
Posted by Concerned
a resident of Barron Park
on Jul 7, 2016 at 10:34 am

I am disappointed that neither the letter nor the names of the signers were published, yet as much or more space was given to the opposing view which we have heard over and over. I would have liked to hear the full reasoning of the 18 judges, among whom I have heard is Palo Alto's highly respected La Doris Cordell. Please now post a more informative story about the letter and signers.


21 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jul 7, 2016 at 10:40 am

mauricio is a registered user.

Since judges are elected by the voters in our system, judges are answerable to the voters, and if the voters don't trust a judge, they should remove him/her from office through the democratic process. To suggest that judges should face no consequences if the voters feel they didn't serve justice, or even worse, subverted justice, san I believe was the case in the Turner rial, is to basically treat judges like Popes. Judges are answerable to the voters, and the voters should have the final say about their future.


15 people like this
Posted by Cordell Hell
a resident of College Terrace
on Jul 7, 2016 at 10:44 am

"Highly respected LaDoris Cordell"?

Really? I find that laughable. She's the one who totally broke Palo Alto's budget with a huge giveaway of lifetime healthcare benefits to part time city employees. That's a benefit we residents don't have.

Thanks to Ms. Cordell's generosity with other people's money, we'll be paying that bill for decades to come.

Some respect she should get for that!


8 people like this
Posted by Paly Grad
a resident of Leland Manor/Garland Drive
on Jul 7, 2016 at 10:45 am

This is the link to the letter and the signers:

Web Link


30 people like this
Posted by Plane Speaker
a resident of Crescent Park
on Jul 7, 2016 at 10:57 am

- "Judicial independence" would be threatened if Aaron Persky were removed from the bench

Well, maybe we need a little less judicial independence and more professionalism and equality in sentencing.

18 former judges supported Perky ... that is pretty damning of the judges in my opinion. We have judges that instead of implementing the law as we think it is being implemented implement it unfairly as a matter of course, institutionally, and not to mention probation officers to back them up.

Do we need more and better citizen's review of judges along with some way for the people to impeach judges? I agree judges need to be free from worry that every time they make a decision some emotional mob is going to ruin them, but at the same time if enough people over enough time believe a judge is not doing their job. Perhaps, in certain years, votes of confidence should be done with judges that require 2/3 majority or greater to remove a judge.

Our institutions are failing us because slowly over time they have been twisted to the will of the "elites". Over time this kind of distortion increases like a bank account grows, and we have had the same people nudging the system for what amounts to hundreds of years now.


8 people like this
Posted by caitlin
a resident of Mountain View
on Jul 7, 2016 at 11:03 am

So let's see: "judicial independence" includes blatantly biased decisions... like Persky's treatment of the young woman in this case, or his recent 6 year prison term for the young man of color whose crime was so similar to Turner's; and for instance the massive injustice of the US Supreme Court's Dred Scott decision in the 19th century? Even though such results are permission for outrageous behaviors in society?
It seems to me "judicial independence" is rooted in the lowest standards of measure and is acceptable at those levels. [Portion removed.]


14 people like this
Posted by Michael
a resident of Portola Valley
on Jul 7, 2016 at 11:20 am

Was justice served? Is a six month sentence with the possibility of parole after three months justice for the crime of rape. Ask the victim and then ask if this happened to your daughter would justice be served by a six month jail sentence?


14 people like this
Posted by standforthetruth
a resident of another community
on Jul 7, 2016 at 12:10 pm

Why is all of this so hard to grasp? This case has become so transparent. The honorable judge knows every single detail of what happened. Period. Justice was served. After all of this time passing, people still referring to this case as rape is ludicrous.The facts and small details in this case clearly indicate that the night in question was nothing more than a misunderstanding.


8 people like this
Posted by Melville
a resident of Midtown
on Jul 7, 2016 at 12:21 pm

"[ Judicial ] independence" would be threatened if Persky were removed from his position."

Seriously? Isn't this kind of argument really saying: Let judges be excused and not be held accountable for their ABUSE of "JUDICIAL INDEPENDENCE"? Isn't this argument the metaphorical equivalent of removing the blindfold on Justice and throwing away the scales? Isn't it advocating the rule of establishing and ensuring that the privilege of the few be the law of the land?
After all, to disagree with this is to threaten "judicial independence", is it not?
Is not this kind of reasoning the true threat to all of us? I get the strong feeling there is little difference between the judges who wrote and signed the letter are not too unlike Persky. Foxes defending a fox.
Aren't we all threatened by "judicial independence " when its definition is allowing a judge to be judicially independent and effectively above the law? Isn't this, as a judicial standard, a judicial travesty, a frightening tragedy for a free society, a nation of laws?
To the retired judges who wrote and signed the letter mentioned in the lead article: You seem to have deliberately chosen to misdirect away from the most important issue--Why have you not commented on whether or not Persky's ruling was appropriate? Please defend his thinking in this matter--although to do so is not possible. The recall is all about this.

Read Melville's "Billy Budd".


6 people like this
Posted by Curmudgeon
a resident of Downtown North
on Jul 7, 2016 at 12:21 pm

[Post removed.]


19 people like this
Posted by Wow
a resident of Adobe-Meadow
on Jul 7, 2016 at 12:27 pm

Wow is a registered user.

@standforthetruth - the jury disagrees. They convicted Turner of felony sexual assault with intent to rape. I'll go with their view vs. yours.


9 people like this
Posted by standforthetruth
a resident of another community
on Jul 7, 2016 at 12:38 pm

@Wow, I respect your opinion as I also respect the opinion of the jury. [Portion removed.] Not everyone is so quick to jump on the bandwagon. The judge is a professional in this matter. A jury is not. I will stand with the judge as he made a well informed decision as well as the several other judges on this.


25 people like this
Posted by Anon
a resident of Mayfield
on Jul 7, 2016 at 1:34 pm

I think both young people have suffered enormously, not just the young woman. Hopefully all young people have thought about the responsibilities and dangers of drinking, in relation to their sexual drives. There is no benefit in punishing the judge. He knows the facts and he made an informed decision. Would he reconsider it since this public outcry? We don't know. But, we should trust that he made an informed decision and not threaten all judges with a recall should they make an unpopular decision. Both the young man and the young woman made mistakes. It's time to move on. Leave the judge alone.


6 people like this
Posted by Resident
a resident of East Palo Alto
on Jul 7, 2016 at 1:55 pm

Justice is blind. The mob is deaf.


23 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jul 7, 2016 at 2:04 pm

mauricio is a registered user.

If your daughter is ever sexually assaulted, would you want Aaron Persky to preside over the trial of her attacker? If the answer is a yes, feel free to agree with the retired judges.


16 people like this
Posted by Retired judges?
a resident of Charleston Gardens
on Jul 7, 2016 at 4:41 pm

At least one of the "retired judges" is Diane Ritchie, who lost her re-election campaign in 2014 after demonstrating bias and incompetence. Anna Eshoo, the Mercury News, and many others chimed in to say that she should be removed by the voters - which is what happened.

I don't remember reading about these judges criticizing Eshoo and the Mercury News for infringing on "judicial independence," which by the way appears nowhere in the California Constitution -except for Ritchie, of course.

I guess it helps to be a white guy, if you want to get a bunch of retired judges to write in on your behalf. I hope they had a better grasp on the law when they were judging than they do now.


Like this comment
Posted by Curmudgeon
a resident of Downtown North
on Jul 7, 2016 at 4:53 pm

Geez, Weekly. Lighten up. Banality happens in everyday life too. It is not reserved for evil.


8 people like this
Posted by Plane Speaker
a resident of Crescent Park
on Jul 7, 2016 at 8:46 pm

"Retired judges?" ... you may have hit upon something ?
This area is so dense with elites and they have had their way and built
a system that advances and protects only them and theirs for so long,
what else would we expect but that we would have judges that show
preference and empathy only for this "class" of people?


22 people like this
Posted by Sauce for the goose
a resident of Crescent Park
on Jul 8, 2016 at 11:00 am

So campaigning against a judge is fine when it's a woman but not when it's a man. I'm starting to get the hang of this "independence" thing.

Big thank you to Professor Dauber for her courage and willingness to be a voice for all of us.


1 person likes this
Posted by Mike
a resident of Mountain View
on Jul 8, 2016 at 1:11 pm

Persky is probably going to be recalled. He missed the mark.
But consider this scenario: Had this been a girl from Ohio, and the swimmer from Palo Alto, his mother and father would write convincing letters, and likely Persky would be viewed as an intelligent and caring judge for giving the six-month sentence. The victim (and her family) would get more blame. Letters to the editor would remind that the boy was NOT convicted of rape, and would note the rather bizarre nature of a felony conviction for "sexual penetration of an intoxicated person." Wow. By that standard, the letters to the editor would say, most of the men in Palo Alto are potential felons. In this inverted scenario, most of the blame would go on the Evil Red Farm Across El Camino, rather than on the boy. So, all in all, as I say, if the shoes were on the other feet, that sentence might well have gone down just fine in PA. Just my opinion.
But that wasn't the reality. So Persky will probably find another job. That's life in the town/gown wars. I'm not so sure that will be so much a blow for protection of women as it will be a statement about protection of a judge's constituents. Again, just my opinion. But If judges were to be totally free of political influence, they would be appointed for life and no recall would be possible.


5 people like this
Posted by Plane Speaker
a resident of Crescent Park
on Jul 8, 2016 at 1:43 pm

-- Had this been a girl from Ohio, and the swimmer from Palo Alto, his mother and father would write convincing letters, and likely Persky would be viewed as an intelligent and caring judge for giving the six-month sentence.

-- But If judges were to be totally free of political influence, they would be appointed for life and no recall would be possible

0 for 2 ... this is not a local thing, this is a class thing and there is plenty of political influence on Supreme Court justices who are appointed for life.


9 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jul 8, 2016 at 2:18 pm

mauricio is a registered user.

The retired judges are en elite club which circles the wagon and protects one of its own when he gets into trouble, just like Persky had done by handing Brock Turner a grotesquely light sentence for committing a heinous crime.


19 people like this
Posted by MyOpinon
a resident of another community
on Jul 8, 2016 at 9:33 pm

As someone who has worked in a Judicial System (not in California) as a Court Manager for over 20 years, I have to say that the position these retired judges have taken is questionable. While I may not have been a judge, I certainly had plenty of time to see how judges perform.

The judges’ core position (as pointed out in the letter) is the recall process and the threat to judicial independence. I say it's a lot more than that; it's about the voters’ ability to have some say into who will be a judge.

Once a person with a JD becomes a judge they usually retain that job for as long as they wish. How can that possibly be when they have to be re- elected every so many years? The sad reality is that a MAJORITY of sitting judges hardly ever go into an election with any opposition. While is does happen, statistically it is the exception. In Judge Persky’s case in the last election, he ran unopposed.

When it is election time and voters have to vote for a judge, this is normally what they know about the sitting judge: the person’s name, whether he or she is running unopposed (usually), and maybe a statement in the voters election pamphlet.

That's it. Judicial performance or facts are extremely difficult to get almost any place.

So what can a community do if a sitting judge does not perform to community or even legal expectations? Well folks, you know the answer...almost nothing. The Turner case has, however, prompted the community to take about the only real constructive action it can take, and I say go for it.

The local bar association as well as judges would have you believe that their own process and mechanisms can and does take care of "problems." This type of judicial review process in this and most states is inadequate to deal with questionable judicial performance. The process, if it takes place, takes a long time and usually results in a slap on the hand. Only the most egregious matters ever get attention and punishment.

Corrective considerations for problems listed above:

I think that judicial positions should have term limits at the very least. Members of the Bar are reluctant to run against a sitting judge because (as a number of attorneys have told me), “…me run against judge so and so? No way. What if he or she hears my case some time? No thanks.” I'm sure there are other reasons such as pay but I'm sure there are plenty of attorneys that would be happy with what a judge gets paid. The only way I know of getting around this is to limit the amount of time judges sit.

Most states do not have an independent judicial review process that includes those that appear before the judge. One state that does is Colorado. For those interested, please follow this link: Web Link. By the way, not all the judges reviewed receive a "retain" recommendation. My work experience was not in Colorado but I think they have a good model worth considering, at least as a starting point. California and all states need something like this.

In California the burden on the public is to file a "complaint" with the Commission on Judicial Performance. Note this is reactionary process; something has to happen first before anything can be done. Colorado’s process provides some proactive consideration.


I suggest that the judges that signed the letter read this from the National Center for State Courts (NCSC).

According to
Web Link,

California judges may be removed in one of three ways:

• Judges may be impeached by the assembly and convicted by two thirds of the senate.
• Judges are subject to recall election.
• The commission on judicial performance investigates complaints of judicial misconduct and incapacity and may privately admonish, suspend, censure, retire, or remove a judge. The commission's decisions are subject to review by the supreme court.

In summary, I say let the recall process works its way through. Until term limits or a public review process is put into place, it's about the only option available at this point, given that Judge Persky has just been re-elected in the primary for another term—and who knows, he may just be a judge for life if he runs unopposed again and again


6 people like this
Posted by Stanford parent
a resident of Adobe-Meadow
on Jul 10, 2016 at 12:15 pm

Diane Ritchie is "a retired" judge the way that Richard Nixon was a retired president and Anthony Weiner was a retired congressman. I'm sure Professor Dauber is not super worried about that one. How do I donate to the recall? He needs to go.


9 people like this
Posted by Michele Dauber
a resident of Barron Park
on Jul 10, 2016 at 2:37 pm

Michele Dauber is a registered user.

@Stanford parent:

Thanks for your comment. You can donate to the recall at www.recallpersky.com. We appreciate all the support we have been receiving and every dollar goes to put this issue on the ballot.

This is not an issue of judicial independence. It is an issue of judicial bias. We believe that Judge Persky does not understand sexual assault and violence against women. His overly-lenient sentence for Turner has made all women at Stanford and at other colleges in Santa Clara County less safe. It sent a message to victims of campus sexual assault that they are on their own, while telling perpetrators like Turner that the courts have their back. This message is dangerous. Another important fact for you to consider: Judge Persky is evidently currently the primary felony trial judge in Palo Alto. If your daughter or son is assaulted at Stanford, it is highly likely that Judge Persky will be the assigned judge to that matter. That is unacceptable.

Under the California Constitution, the ultimate deciders of whether Judge Persky should retain his seat are the voters of this county. I invite you to join with us in putting Judge Persky on the ballot by supporting the recall. Let the voters decide, in accordance with the law.

Thanks,
MLD


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