More than 90 law professors from throughout California, including 29 from Stanford University, signed a letter this week expressing their opposition to a campaign to recall Santa Clara County Superior Judge Aaron Persky.
Calling the recall a threat to judicial independence, the letter defends Persky's sentencing judgment, including his most controversial decision — the six-month sentencing of former Stanford student Brock Turner, who was convicted of sexually assaulting an unconscious woman on campus in 2015. This case was the catalyst for the recall effort, which is being led by Stanford Law School professor Michele Dauber. She and supporters of the campaign argue Persky has demonstrated a pattern of judicial bias against women and defendants of color in other sexual-violence cases.
"The mechanism of recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms," the professors write. "None of these criteria applies to Judge Persky.
"We appreciate that some people (indeed including some of the signers of this letter) might have chosen a different result," the letter continues, "but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional, a probation officer) -- not on public outcry about a controversial case."
The professors also argue that other sentencing decisions the recall campaign has pointed to as evidence of judicial bias "followed the equally common and legitimate practice of accepting a recommendation agreed on by the prosecution and defense."
A group of law school faculty penned a similar letter last summer, signed by 46 professors. The core group decided to release a fresh version this week as the recall campaign prepared to start gathering the required number of signatures to place the recall on the June 2018 ballot, said Robert Weisberg, Stanford law professor and co-director of the Stanford Criminal Justice Center.
Just after the Santa Clara County Registrar of Voters approved the recall campaign's official petition on Wednesday, however, a judge approved a restraining order filed by Persky to temporarily halt the signature-gathering effort. Persky argued in court documents that because he is a state officer, California's secretary of state rather than the county registrar should have decided whether the campaign's signature effort could move forward.
In an interview, Dauber called this a "frivolous," "political" move intended to delay the signature collection.
Weisberg declined to comment on Persky's legal challenge but said he and the other professors are "operating on the assumption" that the recall will move forward.
As of Friday afternoon, 93 professors from both public and private universities had signed the letter in support, including from Santa Clara University, the University of California, Berkeley; University of California, Hastings College; University of California, Davis; University of San Diego; Pepperdine University; Chapman University; and the University of Southern California.
In response, Dauber said it's "disappointing but not surprising that a group of law professors is siding with a judge against the constitutionally provided right of the people of this county to exercise democratic oversight of this elected official."
She criticized the signers for, she contends, falsely stating in an initial version of the letter that the Santa Clara County Bar Association conducted a "review" of Persky’s decisions, finding no evidence of bias.
In a statement last summer, the bar association said it opposes the recall and "has seen no credible assertions that in issuing the (Turner) sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith. Nor is the SCCBA aware of any other complaints or allegations of impropriety against Judge Persky during his 13 years on the bench."
Weisberg said that while the bar association did not conduct a formal study or investigation, it "clearly examined available evidence."
"The word 'review' is pretty general, and this objection is a trivial quibble," he said.
The professors have since updated the letter to read "the Santa Clara County Bar Association issued a 2016 statement opposing attempts to remove Judge Persky from the bench," with a link to the statement.
Margaret Russell, a Santa Clara University School of Law professor, said this week's letter "adds a perspective to the recall issue that has not been sufficiently addressed before now.
"Law professors are by nature pretty much individualistic in our views, but this large and diverse variety of signers (including scholars of criminal law, feminist jurisprudence, and constitutional law) reflects our utmost concern about this judicial recall attempt," she wrote in an email to the Weekly.
Weisberg echoed that, and said that Stanford Law School professors in particular "may have been a little more motivated than others to express their opposition to the recall, lest the proi-recall view be imputed to the law school or lest people assume that silence from the law school faculty implied if not agreement with the recall, perhaps non-opposition to it."
A hearing on Persky's legal challenge is scheduled for this Wednesday. In advance of that, Dauber filed an objection Friday against the retired Orange County judge overseeing the case, Laird Carter.
"Unfortunately, the fact that Judge Carter would issue a prior restraint of protected First Amendment speech without any finding of a compelling government interest, and indeed without even letting us discuss the question, demonstrates that she does not have a sufficient appreciation for or does not fully understand the important First Amendment issues at stake in this case,” Dauber said, according to the San Jose Mercury News.