Guest Opinion: We need reform, not a recall | News | Palo Alto Online |

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Guest Opinion: We need reform, not a recall

 

We are longtime Palo Alto community members and social justice advocates who oppose the recall of Judge Aaron Persky. Our experience working in the criminal justice system informs our vote of NO recall on June 5.

This recall is not a referendum on the wrongfulness of rape and our commitment to end sexual assault. We all abhor violence against women and children but this recall does not provide meaningful reform to help rape victims or survivors. Instead, the recall will spend more than a million dollars to remove one judge for one lawful decision.

We oppose the recall for these reasons: 1) a successful recall will compromise the independence of our judiciary; 2) the recall will not help survivors of sexual assault; and 3) harsher sentences as a result of the recall will disproportionately hurt communities of color and the poor.

The recall campaign has spent almost two years and and over a million dollars spreading false and misleading information about Judge Persky's record. That is why we and several other local feminists co-founded, "NO Recall of Judge Persky" and made our motto "Get the facts!" Judge Persky is ethically bound not to comment on cases so we ask people to visit our website, norecall2018.org/get-the-facts/, for explanations that debunk the distortions and false narrative of the recall campaign.

This recall is a threat to judicial independence. Judges take an oath to act according to the law and to disregard opinions of any sort from the community. As judges contemplate a difficult decision they should not be thinking about who will come after them if unhappy about the outcome. This concern is a silent and subtle corrupting force that undermines judicial integrity and independence. The ability to shut out public pressure is being undermined by this campaign. If the recall succeeds, will those who come before a court continue to be confident that a ruling is impartial or will they fear it is in response to outside pressures?

More than 130 current and retired judges and justices concurred in an op-ed that stated: "It certainly appears the goal (of the recall) is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts." Judge (ret.) Len Edwards observed, "No one cares about judicial independence until they walk into a courtroom and want an independent judge."

The recall will not help victims of sexual assault or make women safer. We need meaningful reform to prevent secondary trauma to victims as they seek justice and help. We must put resources into better training for law enforcement, medical personnel and those in the legal system. Recalling an able and thoughtful judge does none of this.

Harsher sentences as a result of the recall will disproportionately hurt communities of color and the poor since they are the majority of people who come through the criminal justice system. The recall effort has already resulted in the passage of a law creating a new mandatory minimum sentence for sexual assault crimes. Molly O'Neal, the Santa Clara County public defender, opposes the recall and warns that "communities of color would be negatively impacted (by the recall) for decades."

Before his appointment to the bench, Judge Persky was a district attorney who prosecuted sexual assault crimes. He served on the executive committee for the Support Network for Battered Women and the Santa Clara County Network for a Hate-Free community. He received a civil rights leadership award for his work on hate crimes and has served as a judge for 14 years earning a reputation for fairness and integrity.

The recall campaign claims that Judge Persky is biased in favor of white, male, privileged athletes by referring to five cases out of his approximately 2,000 criminal cases. The independent watchdog agency, the California Commission on Judicial Performance, reviewed Judge Persky's record and found no evidence of bias or misconduct. District Attorney Jeff Rosen, who opposes the recall, says that there was never one complaint against Judge Persky.

For more than a year, the recall campaign misled the public regarding the case of Raul Ramirez. They said Judge Persky unfairly sentenced a Latino in a "similar" case more harshly than Brock Turner, who is white. But Ramirez's plea was before Judge Brown — not Judge Persky. Judge Persky also did not sentence Ramirez — in fact, Ramirez was never sentenced by any judge because he fled the country. Nevertheless, the recall campaign used this case to persuade many politicians and the public to endorse their efforts.

The recall claims that Judge Persky "adjusted" the sentences of college athletes to fit their football schedules. This is false. Judge Persky, with the agreement of the district attorney, followed the recommendation of the probation officer, to create a sentence that held a young African American community college student accountable for his crime while allowing him to continue his education. The recall campaign advocates a punitive approach that is at the root of the "school-to-prison pipeline" that derails so many young men of color. We need judges who will use their discretion to temper justice with mercy within the law when imposing a sentence.

We are living in a time when our institutions and our judges are being attacked by politicians and special interest groups. Whatever one thinks of a particular sentence, Judge Persky followed the law.

Facts matter. Truth matters. An independent judiciary matters. We urge a NO vote on June 5.

Elspeth Farmer is a lawyer and social justice advocate. Ellen Kreitzberg is a professor of law and the director of the Center for Social Justice at Santa Clara University.

Related articles:

Guest Opinion: Judge Persky should be recalled

As recall vote nears, judge defends his record

Analysis: the 'pattern' cases

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Comments

33 people like this
Posted by Paly parent
a resident of Community Center
on May 11, 2018 at 8:26 am

Persky's campaign is run by a Trump operative, so I imagine these are his talking points. Weekly, if you're going to let writers use Trump's tactic of labeling facts "fake news" you should make them back it up. Accusing opponents of lying while providing no support is corrosive of debate. That's why Trump does it and that's why these writers are doing it too.


79 people like this
Posted by Dilettante
a resident of Greenmeadow
on May 11, 2018 at 3:33 pm

Dilettante is a registered user.

Paly parent: If you want to bandy about the label of "Trump tactics" then I posit that the anti-Persky, recall tactics of resorting to a campaign of distortions, whipping up a mob-mentality, getting funding from out-of-state shadow organizations, and ultimately side-stepping a long-established judicial system to just throw the decision to the populace to vote on, is the "Trumpier" of the two camps.

Distortion #1. Recall advocates claim Perksy has a "pattern." This same journalistic platform just today released an excellent, detailed analysis by Elena Kadvany of Persky's sentences in the "pattern" cases, and if you read them you will find compelling, carefully calculated (and bargained by parties) reasons behind every sentence. If there is a pattern, it is one of somber reasoning. If there really was a bad "pattern" then the district attorney would have objected to having Persky hear the Brock Turner case in the first place.

Distortion #2: Recall advocates labeling the Turner case a "rape" case (even the latest glossy mailings have images of quotes from newspaper headlines, breathlessly screaming "Stanford Rape Case"). It was not a rape case. The district attorney did not charge Turner with rape. It was sexual assault, and as horrifying as that is, *legally* there was a distinction in the laws. It may seem like a pedantic obsession with etymology, but in law, words have very specific meanings. If you want to start attacking judicial independence, then you need to think judiciously.

Distortion #3: The recall movement, when asked if the Committee for Judicial Recall found Persky "clear," flatly say "no." Simply false. The CJP found that Persky's sentence was legal and justifiable. The normal, legal way to object to a CJP finding that you disagree with is to appeal it. The recall movement decided not too. Shockingly, law professors that teach at a fine law school that does an outstanding job of preparing future lawyers to navigate, respect, and honor the judicial system, decried the CJP as "one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges." This is right there on the recall movements FAQ page. They decided to not litigate (perhaps because the leaders are not lawyers?) and instead appeal to the people.

Distortion #4. The recall effort's failure to reveal victim Emily Doe's sentencing desires as quoted on page five of the probation report that Perky used in part to base his sentence: "I want [Brock Turner] to be punished, but as a human, I just want him to get better. I don't want him to feel like his life is over and I don't want him to rot away in jail, he doesn't need to be behind bars."

Distortion #5: Recall advocates claim Persky's personal history as a white Stanford athlete and graduate makes him favor people of privilege. I'm sorry, does this mean any white, male, highly-educated, former athlete is now inherently incapable of propriety and professionalism Preposterous.

These are the first five I came up with before my fingers got fatigued from typing.

Are these distortions by the recall advocates corrosive enough for you to think you are being misled (and, ask yourself why) and vote NO? I certainly hope so.


14 people like this
Posted by Dotty Henderson
a resident of Downtown North
on May 12, 2018 at 7:29 am

Dotty Henderson is a registered user.

I could not and will not vote for a candidate, Aaron Persky, who has a Trump campaign officer running his campaign. Web Link

That tells me what I need to know about Mr. Persky and his attitude towards women. Why would any woman or any Democrat vote for a man who selected Trump's Arizona state director to run his campaign?

The previous poster sounds to me like a part of the Persky campaign. Minimizing the seriousness of Brock Turner's assault (it was only sexual assault, it wasn't rape!) and quoting the victim out of context are terrible.


47 people like this
Posted by Dilettante
a resident of Greenmeadow
on May 12, 2018 at 8:37 am

Dilettante is a registered user.

Dotty, I am *not* part of the Persky campaign. I have never even met Judge Persky, nor any of the leaders of either the recall or retain campaigns.

I am an advocate of judicial independence, I support democratic institutions, I am educated (by which I mean I am capable of reasoned and judicious critical thinking, and am not swayed or distracted by untrue or irrelevant information), and I abhor activism based on propaganda. Most importantly, I am a voter in Santa Clara County.

Have a lovely weekend.


18 people like this
Posted by Dotty Henderson
a resident of Downtown North
on May 12, 2018 at 1:23 pm

Dotty Henderson is a registered user.

Dilettante, I'll take your denial that you are associated with the Persky campaign at face value. It doesn't really matter to me. My point was just that you sound like them since you are repeating the same talking points. The one that particularly bothers me is the "it wasn't rape, just sexual assault." I have also heard LaDoris Cordell talking about the victim having had too much too drink as if it justified a lighter sentence for her assailant!

To me the Trump connection is telling about Judge Persky and his campaign so I'll just stick to that.

I hope you have a great weekend too!


14 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on May 13, 2018 at 1:58 pm

mauricio is a registered user.

Brock Turner was saved by an idiotic and feudal law, since changed, thankfuly, that considered non consensual penetration by a digit or object not as severe and as criminal as penetration by a penis. Today Turner would have been charged and tried for rape, which he should have been all along.

I wonder if the opponent of recall would dismiss this crime as not worthy of more than 6 months in prison(actually3), and not even in a state prison, but in a county work camp, if they had been penetrated by a digit against their will. Would they feel that the judge who sentenced their assailant to few months in a county work camp has given their assailant a sentence that taught him a lesson that would prevent him from repeating his crime? Would opponents of recall whose daughter had been violated the way this victim had been violated feel their daughter was safe if her assailant was released into society after 3 months? Does anyone in their right mind believe that women are now safe around Brock Turner after he had spent 3 months in a county work camp?


33 people like this
Posted by Grounds for recall
a resident of Fairmeadow
on May 13, 2018 at 2:23 pm

Grounds for recall is a registered user.

@mauricio -- I am not happy with the sentence, I find it far too lenient. But I am going to vote against the recall. I don't think that people with money (recalls are very expensive) should be able to fire judges who hand down sentences that they disagree with. I think that is a travesty of the first order.

The people who are arguing about a *pattern* of behavior have a stronger argument (you do not make that argument), but I don't see a significant pattern there either. This is a revenge play.


16 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on May 13, 2018 at 2:58 pm

mauricio is a registered user.

Actually, there is a pattern in which the judge is very lenient toward sexual offenders, going out of his way to make their sentence, after conviction almost meaningless.


8 people like this
Posted by Curmudgeon
a resident of Downtown North
on May 13, 2018 at 6:01 pm

Curmudgeon is a registered user.

" the recall will spend more than a million dollars to remove one judge for one lawful decision."

Good point. We have to bring down the cost of recalls.


"We oppose the recall for these reasons: 1) a successful recall will compromise the independence of our judiciary; 2) the recall will not help survivors of sexual assault; and 3) harsher sentences as a result of the recall will disproportionately hurt communities of color and the poor."

1) an elected judiciary is a priori not independent, but it is accountable. As the alternative, remember the SCOTUS' Citizens United and Bush v. Gore decisions. 2) that is an unrelated issue. If you are advocating for more help for victims, I'm with you. 3) Persky is up for recall because he evidently disproportionately favors communities of white privilege and the wealthy.


52 people like this
Posted by Hinrich
a resident of Old Palo Alto
on May 13, 2018 at 7:24 pm

Hinrich is a registered user.

This case, from its beginning, is not much different than the rush to guilty by the crowd who tried the very famous Roscoe ‘fatty’ Arbuckle in SF almost a hundred years ago. He was eventually vindicated with an apology from the convicting jury but of course his reputation, career, and soon his life were over. The mob in that case was absolutely convinced, absolutely driven by their moral purpose, and absolutely desperate to convict and to make their rage known. But also, in the final judgement, absolutely wrong.

The Perskey situation is similar. A determined few in this community, a couple with their own causes, have dominated the verdict and organized in retaliation. What they couldn't win in court they hope to win on the streets. As the jury said in their final judgement in the Arbuckle trial, "A grave injustice has been done.".

In this matter, "A grave injustice has been done." Hopefully, the community will have greater wisdom and vote NO to the recall. And, hopefully, the community will think seriously about the impact a select few have had on certain public issues and whether this impact has been positive.


20 people like this
Posted by Annette
a resident of College Terrace
on May 14, 2018 at 11:10 am

Annette is a registered user.

Given their professions and background, it seems to me that LaDoris Cordell, Elspeth Farmer, and Ellen Kreitzberg would be LEADING the recall effort if they thought Persky guilty of all the judicial wrongdoings that Dauber et al have charged. I do not personally know these three women but Cordell is well known in the Palo Alto community. She enjoys a good reputation for all sorts of reasons, including that she is a woman of admirable character. I sincerely doubt she would put that on the line to support a judge who favors privileged white males. On the other hand, I think it clear that she is willing to go all out for someone who is wrongly accused.


Like this comment
Posted by Dennis
a resident of Terman Middle School
on Jun 4, 2018 at 10:45 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 10:48 am

Dennis is a registered user.

Correct link Web Link


5 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Jun 4, 2018 at 11:13 am

mauricio is a registered user.

There is no misrepresentation of Persky's record. His record is very clear on men who attack women. He is incredibly lenient when sentencing them, especially if they are white athletes. He goes out of his way to accommodate them, as he had with the software engineer who violently beat up his fiancee. Persky even suggested reducing his conviction from felony to misdemeanor after one year in order to prevent his deportation.

The wild accusations by those who oppose the recall are nothing but Trump-speak, which is not surprising knowing who is his campaign manager. Anything but a recall would be a grieve travesty and a reward to a terrible judge.

BTW, I will take Anita Hil, a strong supporter of the recall as a champion of women any day over LeDoris Cordell, who iI personally overheard disparaging the survivor and denying it was even sexual assault, the same LeDoris Cordell who initially blasted the 6 month sentences, describing it as "white privilege".


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