Recall campaign: State ruling that cleared judge is 'error-ridden'

Recall Persky chair raises concerns about agency's transparency

The campaign working to unseat Santa Clara County Judge Aaron Persky, sparked by his sentencing of former Stanford University student Brock Turner to six months in county jail, released this weekend a detailed statement criticizing a state judicial commission that recently cleared him of any misconduct.

The seven-page response calls the Commission on Judicial Performance's December report β€” which found Persky did not abuse his authority nor exhibit bias in sentencing Turner last summer nor in other cases that have been cited by the recall campaign as evidence of his bias β€” flawed, inaccurate and "nontransparent."

"This was a one-sided, closed-door proceeding that resulted in an error-ridden report ... by an agency with a long history of protecting judges," the response states.

Victoria Henley, director and chief counsel for the Commission on Judicial Performance, declined to comment for this story, stating that the commission would only respond to a document filed directly with the state agency.

The Recall Persky campaign earlier had decided not to file an official complaint with the commission, the response states, due to concerns about the agency's record and lack of transparency. The complaint considered by the commission was submitted by national women's advocacy organization UltraViolet, which delivered a petition with close to 1 million signatures calling for Persky's removal in June.

The recall campaign, led by Stanford law professor and Palo Alto resident Michele Dauber, alleges the commission erred in statements it made not about the Turner case, but five other sexual assault, domestic violence and child pornography cases overseen by Persky in recent years. The recall campaign says these cases demonstrate Perksy's deference to white, privileged defendants and a failure to take violence against women seriously.

The errors are nuanced in some cases. For example, in the case of Raul Ramirez, a Salvadoran immigrant who pleaded guilty to a felony sexual-assault charge, forcible sexual penetration, and received the mandatory minimum sentence for that crime -- three years in state prison -- the Commission on Judicial Performance stated in its report that Persky was not responsible for Ramirez's sentence beacuse another judge substituted for Persky on the date of the defendant's plea.

While Persky was present at the "majority" of plea negotiations meetings and at several court appearances throughout 2015, the deputy district attorney overseeing the Ramirez case previously told the Weekly, court documents show that the final plea conditions were handled by Judge Gilbert Brown, rather than Persky, in Palo Alto on March 29.

The recall campaign's response argues that Persky was still responsible for the sentence -- the judge presided over plea hearings and negotiations for more than a year -- and that the commission's report failed to address whether the case "was evidence of a pattern of bias in favor of privileged defendants such as collegiate athletes like Turner."

In the case of Robert Chain, a white 48-year-old San Jose resident who pleaded guilty to a felony child-pornography charge in 2015, the commission said that Persky "imposed a sentence to which the prosecution did not object" and that followed the probation department's recommendation. Although the crime carries a maximum three-year penalty and no minimum, Persky eventually gave Chain a four-day jail sentence, three years of probation and ordered him to register as a sex offender.

At Chain's sentencing, Persky said that he would be "receptive" to Chain's request to reduce his conviction from a felony to a misdemeanor after one year of "successful compliance with probation conditions," according to a sentencing transcript. The probation department, however, recommended the reduction only after Chain completed one year of mandated sex offender therapy and two-thirds of his three-year probation.

The recall campaign also said the commission erred in stating that Persky followed the sentencing recommendation of the probation department in cases in which the referral to probation was waived and there was no full probation report.

The recall campaign is also critical of the commission's transparency, pointing to recent concerns voiced by lawmakers and even judges about the public agency.

In October, four lawmakers called for what would be the first-ever audit of the 56-year-old agency. The audit sought to review complaints about judges and other internal documents.

The next month, the Commission on Judicial Performance sued to limit the scope of the audit, arguing that "complete confidentiality of complaints to the CJP and the CJP's investigation of those complaints is critical to allow the CJP to perform its core constitutional functions," the CJP's attorney, James Wagstaffe of Kerr & Wagstaffe, wrote in a filing.

Complaints to the commission and commission investigations are confidential, though once the commission orders formal proceedings, the charges and all subsequently filed documents are made publicly available, according to the commission's website. The agency has said it is exempt from the state's Public Records Act and from the Brown Act, California's open-meeting law. In a February letter in response to a Public Records Act request from the First Amendment Coalition, a nonprofit advocacy group, Henley wrote there are "numerous constitutional provisions" that "protect commission records relating to complaints and cases involving judges from disclosure."

"There is no actual way to request their records and no hope of receiving them," Dauber said, and thus no way to know exactly what evidence they reviewed to make their determination on Persky.

Henley said it was uncommon but not unprecedented for the commission to issue a detailed explanatory statement in a case where it did not find evidence of judicial misconduct. The commission has done so infrequently since 1988 "in matters that were closed after having been the subject of intense media attention," including investigations of Supreme Court justices and other individual judges in the 1970s, 1980s and 1990s, she wrote in an email to the Weekly.

The Recall Persky campaign continues to move toward placing a recall on the November ballot. To date, campaign has raised about $360,000, with more fundraisers scheduled between now and the spring, when it can officially open the recall, Dauber said. The campaign estimates a successful recall will cost $1 million in total.

The campaign is currently working with a law firm and a signature-gathering firm, preparing to file a notice of intention to recall in April, after which it will have 160 days to collect the requisite number of signatures of registered voters in Santa Clara County β€” about 80,000.

The Palo Alto Weekly has created a Storify page to capture ongoing coverage of the Brock Turner case. To view it, go to


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6 people like this
Posted by Wondering??
a resident of Another Palo Alto neighborhood
on Jan 9, 2017 at 10:33 am

> The complaint considered by the commission was submitted by national women's
> advocacy organization UltraViolet, which delivered a petition with close
> to 1 million signatures calling for Persky's removal in June.

Got to wonder how many of the 1M people who signed this petition are Santa Clara County residents? Just how much influence in this matter should non-SCC residents bring to bear?

17 people like this
Posted by OfNationalInterest
a resident of Palo Verde
on Jan 9, 2017 at 11:31 am

Well, this is generally an issue all across the country: (1) whether rape cases are treated with the seriousness they deserve, and (2) whether there is bias (intended or not, explicit or not) affecting the verdict and the sentencing. I believe that this case should be examined and discussed across the country so that, regardless of its specific outcome, we get better at dealing with the issues above.

18 people like this
Posted by revdreileen
a resident of East Palo Alto
on Jan 9, 2017 at 12:16 pm

revdreileen is a registered user.

An often cited explanation/excuse for the sentencing decisions that judges make is that they are following the recommendations of the Probation Department. However, there is evidence that the predictive formulas that probation departments use is biased against low income defendants, which means that there is more likely to be a racial bias -- Web Link.

The Santa Clara County Probation Department based its sentencing recommendation for Brock Turner on variables like no prior criminal activity, family support, education level, etc. While this seems unbiased on the face of it, these variables are also more likely for white middle-/upper class people. A judge should not mindlessly follow the recommendations of the probation department without considering the possible biases inherent in their formulas.

17 people like this
Posted by citizen
a resident of Southgate
on Jan 9, 2017 at 12:57 pm

I was interested in this: "The recall campaign also said the commission erred in stating that Persky followed the sentencing recommendation of the probation department in cases in which the referral to probation was waived and there was no full probation report."

I looked at the campaign's very detailed and researched report. Web Link

It includes links to all the evidence supporting it -- unlike the Commission, which relied on secret evidence that the public can't see. That is a very significant mistake -- saying that Persky was just following the probation report when there was no probation report. How can we rely on anything the agency says when it makes mistakes like that? Did they even check to see if there was a report or were they so focused on protecting their judge that they didn't bother.

I am also bothered by the lack of transparency and secrecy. This is a taxpayer funded government agency. Explain to me why they can "exonerate" Persky based on secret evidence that the public can never access? That seems like it deserves a story all on its own.

6 people like this
Posted by Curmudgeon
a resident of Downtown North
on Jan 9, 2017 at 2:30 pm

Just recall Persky and be done with it. Ignore distractions.

7 people like this
Posted by caroline V
a resident of Portola Valley
on Jan 9, 2017 at 2:50 pm

Thank you for this excellent reporting. This is another piece of evidence that demonstrates our California justice system is broken.

5 people like this
Posted by A Noun Ea Mus
a resident of Professorville
on Jan 10, 2017 at 5:17 am

People like Persky can Make Rape Great Again! Another day in the USA.

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

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