Guest Opinion: Judge Persky should be recalled | News | Palo Alto Online |


Guest Opinion: Judge Persky should be recalled


Nearly 100,000 Santa Clara County voters signed a petition to put the recall of Judge Persky on the June 5 ballot. We believe Persky should be replaced with a new judge because he has a pattern of bias in favor of privileged perpetrators in cases of sexual assault, domestic violence and child pornography.

The most notorious case was Stanford swimmer Brock Turner. Persky sentenced Turner to only six months in jail for sexually assaulting an unconscious woman behind a dumpster outside a frat party. The victim, "Emily Doe," grew up in Palo Alto and graduated from Gunn. A jury convicted Turner on three felony counts, including assault with intent to rape and sexual penetration of an unconscious and intoxicated person. Turner faced 14 years in prison for his crimes — he only served 90 days.

For women in Santa Clara County, Brock Turner's sentence isn't just shocking, it's dangerous. It reinforces the myth that sexual assault is not a serious crime. It discourages victims from coming forward to seek justice when even a jury verdict results in a slap on the wrist.

That's why recall supporters include over 50 elected officials in Santa Clara County and beyond, including U.S. Senator Kirstin Gillibrand, State Senators Jerry Hill and Jim Beall, five Congressmen, civil rights leaders such as Dolores Huerta and Anita Hill, and organizations including the National Organization for Women and the California Nurses Association.

Even judges and lawyers opposed to the recall harshly criticize the Turner sentence. Former Judge Ron del Pozzo, recently retired after 15 years on the bench, said the expected sentence would have been 4-6 years. He called six months in jail "inconsistent with the jury verdict based on other people who have been tried for similar offenses and sentenced for similar offenses" in this county. According to Del Pozzo, "You see people get a year for the first residential burglary without any history. You see people get a year for having several DUIs behind them and having a fourth."

Former Judge LaDoris Cordell, also a Persky supporter, called the sentence an example of "white privilege." Dean Erwin Chemerinsky of the Berkeley Law School labeled it an "abuse of discretion." District Attorney Jeff Rosen, saying he "lacked confidence" that Persky could "fairly participate" in another case of sexual assault of an unconscious victim, disqualified Persky from that case.

Persky only sentenced approximately 64 cases involving sex crimes and violence against women during his 19 months in felony court. Many of those cases show a similar bias.

For example, Foothill College football player Ikaika Gunderson was convicted of felony domestic violence for beating and choking his former girlfriend and pushing her headfirst out of a car. Persky abused his discretion to allow Gunderson to move to Hawaii to play college football with no probation or monitoring and without notifying Hawaii, in violation of state and federal law. Gunderson was then rearrested for domestic violence in a third state.

In another case, a Sunnyvale man named Robert Chain was convicted of felony child pornography for possessing dozens of images of little girls in sexual situations, including an infant. Persky sentenced Chain to only four days in jail rather than the six-month sentence dispensed by other judges in this county. Persky made the plea offer, not the DA. Persky also said he would be "receptive" to reducing the felony to a misdemeanor after only a year, contrary to the probation recommendation. Another Persky supporter, a public defender, called the sentence "eye-raising" and said it is appropriate for offenses like disturbing the peace or public intoxication, not felony child porn.

In other cases, Persky:

* Adjusted the sentence of another college football player convicted of domestic violence to accommodate his football schedule;

* Sentenced an engineer to weekend jail for severely beating his fiancee.

* In a civil trial, allowed De Anza College baseball players accused of committing the gang rape to show the jury photos taken months later of the teenaged victim in a skimpy outfit, supposedly to prove she didn't suffer from trauma. The victim's lawyers said that they believed Persky "favored" the perpetrators.

Persky's response to the recall echoes this record. He hired Donald Trump's Arizona state director, Brian Seitchik, for his campaign. Seitchik has a history of anti-choice, anti-immigrant and anti-labor campaigns. Not surprisingly, the Persky campaign — in venues including debates, endorsement interviews and media appearances — has repeatedly blamed the victim in the Turner case, justifying the lenient sentence by pointing to the fact that Emily Doe was highly intoxicated.

Victims of sexual assault and domestic violence will not come forward if they think they will be blamed for the crimes committed against them. They will not seek justice if the result of a long process of medical examinations, invasive questions and humiliating testimony is a slap on the wrist for their victimizers.

Opponents of the recall are often harsh critics of Persky's decisions, but they say that recalls threaten "judicial independence" and should be reserved for judges who violate the law. Persky did violate federal and state law when he sent a convicted felon to Hawaii to play football without even notifying that state.

But the larger point is that judges are elected officials under the California Constitution, which gives to voters the power to elect judges and to recall them. That's why the nonpartisan California Constitution Center concluded that judicial recalls are part of our constitutional mechanism for balancing the competing value sets of independence and accountability. The Persky campaign's radical view that elected judges are unaccountable to voters for their decision-making is anti-democratic and contrary the California Constitution.

Santa Clara County voters have a right to judges who take sexual violence seriously, and they have a right to express that value at the ballot box. We expect they will do that on June 5 and replace Persky with a judge who will better protect our community.

Gary Kremen is a director, Santa Clara Valley Water District Board. Margaret Abe-Koga is a Mountain View City Council member. Kenneth Dauber is president and Jennifer DiBrienza is vice-president of the PAUSD Board of Education.

Related articles:

Guest Opinion: We need reform, not a recall

As recall vote nears, judge defends his record

Analysis: the 'pattern' cases


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34 people like this
Posted by un-thruths in advertising
a resident of Another Palo Alto neighborhood
on May 11, 2018 at 6:59 am

Ken Dauber and Jennifer DiBrienza's argument is slight-of-hand at its finest.

Do they think that the Palo Altoans who elected them to lead the school district that teaches their children how to think clearly and present their arguments honestly wouldn't notice?

They cite the DA, the Dean of Berkeley Law, and two former judges when each one has been extremely clear that he and she OPPOSES the recall.

District Attorney Jeff Rosen: "'Most of the judges in California would have done the same thing as Judge Persky,' says District Attorney Jeffrey Rosen—whose office prosecuted Turner and recommended a six-year prison sentence after his conviction. 'I do not believe he should be removed from his judgeship.'” Web Link

Judge LaDoris Cordell pointed out to CNN's Michael Smerconish that "this recall is based on lies and distortions." Web Link She is leading the campaign fighting the recall.

Berkeley Law School Dean Erwin Chemerinsky, also pointing out that there's been a number of things said in the Recall campaign that are "untrue and misleading," emphatically states that "I am strongly opposed to the recall." Web Link

Judge Ron del Pozzo: “Should he be recalled? Absolutely not.” Web Link

9 people like this
Posted by un-truths in advertising
a resident of another community
on May 11, 2018 at 7:47 am

"he has a pattern of bias in favor of privileged perpetrators"

Not true according to the facts that the Weekly uncovered in its investigation of these cases.
Web Link

Weekly on the engineer, Asian and the only "privileged" defendant in the other cases mentioned: this sentence was not unusual and Persky OKed the defendant's attorney's request so that he "could keep his job to pay restitution to the victim"

Weekly on Gunderson, minority football player: the DA did not object to the agreement, "the sentence imposed in this case was not unusual [or] unprecedented," and "it is unclear from the publicly available records whose failure resulted in Gunderson's lack of supervision in Hawaii."

Weekly on the other football player, minority: The DA said this was a plea bargain, that it is common for judges to craft sentences to accommodate low-risk offenders' work or school schedules, and it is the probation department's job to notify the judge of problems which the department didn't do in this case.

Weekly on Chain, white: The DA did not object to the sentence and Deputy DA Terry Harman told recall campaign chair Michele Dauber that Persky "is not the only judge who has given less than 6 months" on a case like this one.

24 people like this
Posted by Paly parent
a resident of Community Center
on May 11, 2018 at 7:57 am

Umm, the editorial clearly says that LaDoris Cordell and the other harsh critics of Persky nevertheless oppose the recall. The real question is, why do Cordell and the others think the community has to accept a bad judge?

17 people like this
Posted by un-truths in advertising
a resident of another community
on May 11, 2018 at 8:21 am

"Turner faced 14 years in prison for his crimes"

Not really.

The DA wanted 6 years.

Michele Dauber, chair of the Recall Campaign and wife of Ken Dauber who wrote that, pushed for 2.

After Emily Doe, the victim, told the probation officer that "I don’t want [Brock Turner] to rot away in jail; he doesn’t need to be behind bars," she wrote only this in her long victim statement about the duration of his sentence: "a year or less in county jail is a soft time-out" and "his is a life-time sex registrant. That doesn't expire."

Turner was sentenced to 6 months in jail and 3 years probation, any violation of which would send him back to jail, and is now registered as a sex offender for life.

Web Link

Web Link

Web Link

19 people like this
Posted by Paly parent
a resident of Community Center
on May 11, 2018 at 8:33 am

14 years is correct. That's what Turner could have received. This the bigger point here is that this writer is using the same strategy of false accusations of "fake news" that the Persky campaign uses. That's because Persky's campaign is run by Trump's Arizona state director, Brian Seitchik.

1 person likes this
Posted by casey
a resident of Midtown
on May 11, 2018 at 1:41 pm

casey is a registered user.

14 years is possible, but not probable. To sentence a first-time offender to the maximum term possible would have been a serious departure, particularly when that is not what was recommended by the probation department.

7 people like this
Posted by Dilettante
a resident of Greenmeadow
on May 11, 2018 at 2:45 pm

Dilettante is a registered user.

The very fact that Ken Dauber is writing this letter in support of his wife, Michele Landis Dauber (leader of the recall effort), begs serious questions on issues of motive, bias and objectivity. Why do the Daubers have such unfettered animosity towards Judge Persky?

15 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on May 11, 2018 at 4:40 pm

mauricio is a registered user.

Do you know of a sexual offender who repented and changes his ways after receiving a lenient sentence from a judge? That's right, neither do I. Judges like Persky, by being so lenient and considerate of men committing violent acts against women make women less safe and more likely to be victims of sexual assault. Defenders who commit non violent crimes are more likely to receive harsher sentences than the slight wrist slap Turner received from this judge.

His position is an elected one, he serves at the pleasure of the voters and Santa Clara voters have a full right to recall a bad, and frankly dangerous to potential women victims judge. YES on recall.

15 people like this
Posted by Larry English
a resident of Los Altos
on May 20, 2018 at 9:37 pm

Larry English is a registered user.

From this opinion piece:
Dean Erwin Chemerinsky of the Berkeley Law School labeled it an "abuse of discretion."
From Deam Chemerinsky's Sacramento Bee opinion piece, with his position confirmed at the Stanford Law School debate with Prof. Lemley in April:
A California Court of Appeal can overturn a sentence if it finds that it was an “abuse of discretion.” If the prosecutor believes a sentence is too lenient, the remedy is to appeal. But the answer is not to remove a judge from the bench because we dislike the sentence.
The authors of this opinion piece, by Kremen, Abe-Koga, K.Dauber, and DiBrienza, lied bigtime - the "abuse of discretion" was not a description of Persky's actions at all, and the quote comes from his opposition to the recall. It cannot be seen as a slip, an error, or a misunderstanding. It is a blatant lie, and as such deserves to be discredited by your paper. If you have already done so - bless you. If not, consider it.

33 people like this
Posted by Ken Dauber
a resident of Barron Park
on May 20, 2018 at 10:22 pm

Ken Dauber is a registered user.

Larry English is incorrect in his claim that we misquoted Dean Chemerinsky in calling the Brock Turner sentence an "abuse of discretion" by Judge Persky. From Dean Chemerinsky's op-ed in the Orange County Register on June 16, 2016 (Web Link):

"A sentence of six months in prison for rape is an abuse of discretion."

Chemerinsky also wrote, "I share the outrage at the sentence. It is a grossly inadequate punishment for Turner and sends exactly the wrong message about the seriousness with which the legal system takes a crime that has forever altered the victim’s life." Further, "A six-month sentence for rape is outrageous" and "Judge Persky made a terrible error." As we accurately wrote, even a supporter of Judge Persky's like Chemerinsky has harshly criticized Judge Persky's sentencing of Brock Turner.

16 people like this
Posted by Dotty Henderson
a resident of Downtown North
on May 21, 2018 at 9:40 am

Dotty Henderson is a registered user.

Larry English was quick to accuse others of "lying bigtime" and a "blatant lie." Is he going to post an apology now that it's clear he was wrong?

1 person likes this
Posted by Dennis
a resident of Terman Middle School
on Jun 4, 2018 at 10:44 am

Dennis is a registered user.

This is not a plea for you to vote either way.

I want to pass on this Huffington Post article: Web Link

The article is not pro- or anti-recall per se. Please, even if your mind is made up, I encourage you to read it to the end. Thank you.

[Portion removed.]

Like this comment
Posted by Dennis
a resident of Terman Middle School
on Jun 4, 2018 at 10:46 am

Dennis is a registered user.

Correct link: Web Link

7 people like this
Posted by Dotty Henderson
a resident of Downtown North
on Jun 4, 2018 at 12:50 pm

Dotty Henderson is a registered user.

Dennis is being disingenuous. Of course he is opposing the recall, and wants you to vote no!

I have seen many charges of dishonesty directed at the recall campaign, without any foundation. [Portion removed.]

1 person likes this
Posted by Dennis
a resident of Terman Middle School
on Jun 4, 2018 at 2:36 pm

Dennis is a registered user.

@Dotty: I would respectfully reply that you don't know me or my goals.

To be very clear: I don't like when the ends justify the means and or powerful people continually misrepresent truth in service of political goals, like Trump does. As Dotty points out, the No Recall moment has had its bad moments as well. The Huff Post article I linked calls out both sides. [Portion removed.]

As for the recall, it has already achieved its goal of making judges worry about public opinion if they are lenient, whether it succeeds or not. The law has already been changed. Millions of dollars have been spent. Whether Persky stays or goes is almost totally beside the point now. Yes, I will most likely vote no recall, but I am unconnected with the No Recall movement and not campaigning for that here.

2 people like this
Posted by Dotty Henderson
a resident of Downtown North
on Jun 4, 2018 at 7:23 pm

Dotty Henderson is a registered user.

I wouldn't call smearing the victim and denying the jury verdict, both of which Persky's campaign has done repeatedly, a "bad moment". Web Link

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