It was almost three years ago that Judge Aaron Persky handed down his highest-profile sentence in a windowless Palo Alto courtroom.
The six months in jail that he gave to former Stanford University student Brock Turner, who had been convicted of sexually assaulting an unconscious and intoxicated young woman on campus the year prior, set off a firestorm of public outrage so strong that he is now facing a recall election on June 5. His opponents argue he has demonstrated a pattern of bias against women in sexual and physical violence cases. His supporters say Persky followed the letter of the law in those cases and contend that the recall, if successful, will do irreparable damage to judicial independence.
As a sitting judge, Persky is barred from publicly commenting on open cases he presided over or on the recall itself. After launching his official retain campaign in 2016, he released a short statement but has otherwise declined to speak publicly. (Behind the scenes, Persky has tried through legal means to block the recall; his third attempt was denied by the California Supreme Court last week.)
But now, with less than a month left until election day, he is venturing back into the public eye to make a final plea to voters. He is granting media interviews for the first time and holding a press conference in Palo Alto on Tuesday, May 8.
In an interview with the Palo Alto Weekly on Friday, May 4, Persky argued that the recall will set a dangerous precedent for judges, who pledge to make decisions independent of public opinion.
"I trust that my colleagues on the bench will keep their promise, their oath," he said. "But ... will Jane Q Public, looking at what's happened to Judge Persky, think, 'OK, (in) the next tough sexual-assault sentencing, is this judge going to be able to step into that case and completely tune out what's going on around her?'
"We're required under the code of judicial ethics to promote public confidence in the judiciary," he continued. "I think the recall will shake that confidence and that's why I'm against it."
Persky said that while he doesn't dispute the right to recall a judge -- a relatively rare provision in existence in just nine states -- he believes recalls based on the decisions a judge has rendered are inappropriate.
"Substantively I think that recalls are appropriate where judges are either incompetent or commit misconduct, but when recalls are based on judges' decision making, I think that is a step too far," Persky said. "It really runs the risk of putting judges out there in the political arena and making them subject to that type of political pressure."
Persky pointed to a 2015 study of social science research by the Brennan Center for Justice at the New York University School of Law that found that proximity to re-election made judges more likely to impose harsher and longer sentences.
Persky supports eliminating the judicial recall provision in California, arguing that there are already well-established systems to hold judges accountable for misconduct: the appellate process and the state's Commission on Judicial Independence, an independent body charged with investigating complaints against judges and disciplining them.
In response to thousands of complaints and a petition with close to one million signatures, the commission investigated Persky but ruled that the judge did not abuse his authority nor exhibit bias in the Turner sentencing or in five other cases that the recall campaign asserts show a "pattern" of bias. (In its ruling, the commission pointed 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.") The recall campaign contends the commission's ruling was based in part on factual inaccuracies.
Persky also criticized the process by which recalls are put on the ballot, saying it is too easy for a well-funded campaign to gather the needed signatures to qualify the measure by paying signature gatherers. The recall campaign gathered close to 100,000 signatures, far beyond the 58,634 valid signatures required. The campaign spent about $350,000 to $400,000 on the signature-gathering effort, according to chair Michele Dauber.
"To get 90,000-plus signatures on a volunteer-only campaign is a truly Herculean task," Persky said. "To raise enough money to get a signature gathering company to round up the itinerant signature gatherers to come to Santa Clara County is not as Herculean."
The recall campaign has raised $1.2 million, according to Dauber.
Persky's campaign has raised about $271,000 since January 2017, according to his campaign finance reports, plus more than $350,000 in legal services from San Jose law firm McManis Faulkner. The separate "No Recall" campaign, recently formed by a group of Perksy's local supporters, raised about $137,400 in the first four months of 2018, plus close to $100,000 to date this year from a single individual for consulting, advertising and other services, according to finance reports.
Perksy's career on the bench
Persky, a graduate of Stanford University and Berkeley Law, was a criminal prosecutor in the the Santa Clara County District Attorney's Office before he was appointed to the bench by then-governor Gray Davis in 2003. His time on the bench has been varied, from overseeing general misdemeanors and drug court to family court and civil trials. From 2003 until 2008, he worked as a criminal judge before moving to a three-year assignment in family court. In 2011 he moved to civil trials and then probate court.
He arrived in Palo Alto in January 2015 to hear criminal cases, the same month that Turner was arrested for sexual assault. After an onslaught of criticism for his decision in that case, including jurors reportedly refusing to serve on a separate trial in his courtroom, Persky requested to be reassigned to civil cases in August 2016.
Persky estimated that he presided over at least 1,000 cases during his time in Palo Alto, with about 30 cases on different calendars for drug or sexual offenses, for example, rotating every few weeks.
Persky is now working from home as a night judge, a position he volunteered for due to the climate around the recall campaign. Five days a week, he is on call from 5 p.m. on Sunday until the next morning at 8 a.m., signing off on search warrants, emergency protective orders in domestic violence cases and other late-night requests.
Persky's sentencing philosophy
Persky described his sentencing philosophy for first-time offenders as bending toward rehabilitation, within the rule of law.
"Having been a DA and then having been a judge for a while and seen a number of criminal cases, you get to the point where you think, 'OK, how do we stop this person from coming back?' because you see violations of probation and you just see people coming back over and over and over again," Persky said.
The campaign to unseat the judge has laid bare a vexing question on the distinction between public opinion and community values and whether judges should be responsive to the latter. Persky argues there is no difference.
He pointed to Judge Loren McMaster, a Sacramento judge who faced a recall effort in 2004 for upholding two laws that allowed domestic partners the same rights under marriage as a man and a woman. "Community values" at the time, Persky said, "were 61 percent against same-sex marriage," referring to the passage of a proposition banning same-sex marriages.
"If you intuitively are attracted to the position that the judges in our county should reflect the community values of our county -- said in a general way like that, that sounds like a reasonable proposition," he said. "But then you put yourself in the position of a judge who has to divine the community values and is also subject to the canons of judicial ethics, which say public opinion can play no part in your consideration."
While community values influence legislation at the highest levels -- when the Supreme Court, for example, gave same-sex couples the right to marry in 2015 -- Persky said they have no place in the local trial courts of Santa Clara County.
"That corrupts the rule of law, to require a judge to take the temperature of the community," he said.
During Tuesday's press conference, he argued that in the "age of social media," judges no longer are working to ignore the "crocodile in the bathtub," as a California Supreme Court justice once said, but the "dragon" of public opinion and politics.
"It's our job as judges and justices to ignore the dragon," he said.
Persky's supporters have argued that in several of the sentences cited by the recall campaign, he properly applied the law and followed the recommendations of the Santa Clara County Probation Department.
In fact, Persky told the Weekly, the leeway that a judge has in sentencing is not large. The vast majority of cases in the criminal justice system are resolved through plea bargains between the prosecution and defense as they negotiate a plea to a lesser or fewer charges. Judges are "supposed to respect that bargaining process," Persky said, and it's rare for a judge to object to a plea deal on his or her own accord. He recalled three times he knew of that happening during his years as a deputy district attorney and judge in Santa Clara County.
In other cases, when a defendant asks for an open plea, without any promises as to the sentencing he or she will receive, the judge relies on limited information sources to render a decision, Persky said. Without a police report, which under state penal code section 1204.5 judges cannot read without permission from the defendant, or evidence from a trial, Persky said judges lean most heavily on the "presumably neutral" probation department, whose full reports for sex crimes typically include interviews with the defendant and victim, the results of a risk assessment of the perpetrator and a description of the case drawn from the police report.
In these cases, judges "rely on what's told to us in the pre-plea phase by the attorneys and in the post-plea phase by the attorneys and the probation department," Persky said. Judges may "tweak" the probation department's sentencing recommendation if something "seems amiss" but otherwise, "in the vast majority of the cases I and other judges follow those sentencing recommendations."
Judges have the most sentencing discretion in jury trials, he said, when they have heard the full scope of the evidence.
"That's really the true measure of the judge's discretion: post-jury trial," Persky said.
At the press conference, Persky said he doesn't worry that the recall -- which he said has a "very real chance" at success -- will lead to a rash of judicial recalls.
"It's much more subtle and I believe much more insidious than that," he said. "The judicial recall, if successful, will be a silent force, a silent corrupting force, a force that will enter the minds of judges as they contemplate difficult decisions, a force that will enter the minds of individual litigants when they step into the courtroom, wondering, 'Can that judge withstand the challenge?'"
If voters approve the recall, Persky will be replaced by one of two candidates who are also on the June 5 ballot: Santa Clara County Assistant District Attorney Cindy Hendrickson or civil attorney Angela Storey.