Aaron Persky, the embattled justice who sentenced Stanford swimmer Brock Turner to six months for sexual assault crimes, will have his own fate decided by California voters Tuesday.
If voters decide to yank Persky from the bench, it would be the first time in 86 years that a California judge was pulled from office. (Death penalty opponent Judge Rose Bird survived multiple recall attempts, but didn’t actually get ousted from office until the 1986 election.)
In a rare interview last week, Persky told CNN a recall wouldn’t just hurt him — he said it could set a harmful precedent.
“I think generally judges should accept criticism. They should accept responsibility for rulings. But when it gets to the step of a recall — actually recalling a judge primarily based on one decision — that, for me, is a step too far,” the judge said.
“That’s why I’ve chosen to speak out because I think it threatens the independence of judges in California and perhaps even the nation.”
But many disagree.
‘Such an egregious crime’
Across San Jose, the yard signs are easy to find: “Vote yes to recall Judge Persky.”
Matthew Kells proudly displays one of the signs in front of his house. He said he was disgusted that Turner sexually assaulted an unconscious woman behind a dumpster and received only a six-month sentence.
“I felt like that (sentence) was just not a right response for it. This was such an egregious crime,” Kells said.
“This was as bad as it gets. Having this guy in charge of these decisions just seems ludicrous.”
‘We must close the door on public opinion’
Perksy, 56, describes himself as the most hated man on the internet.
Though unable to speak about the Turner case because it is under appeal, Persky has not indicated he would have done anything differently.
“Someday you may be on the right side of the law, and the wrong side of public opinion. And when you step into a courtroom before a judge, you will expect … you will demand a judge who will follow the rule of law,” he said.
“We must close the door on public opinion. We must do that to preserve the integrity of our criminal justice system.”
Persky’s troubles began just days after his decision in June 2016. Prosecutors had asked for a six-year prison sentence, but Persky agreed with the recommendation from the county probation department, which noted that, “When compared to other crimes of similar nature” the Turner case “may be considered less serious due to (his) level of intoxication.”
Critics immediately pounced and accused Persky of going easy on Turner because of his commonalities with the defendant. Like Turner, Persky was also a Stanford athlete. (He played lacrosse.)
Still, the case could have faded from the spotlight had it not been for the emotionally searing letter the victim read to Turner at sentencing. Within days, it went viral on the internet.
“You don’t know me, but you’ve been inside me, and that’s why we’re here today,” the letter began.
“You made me a victim. In newspapers my name was ‘unconscious intoxicated woman,’ 10 syllables, and nothing more than that. For a while, I believed that that was all I was.”
Critics of Persky, who has been on the bench since 2003, find it ironic that his judicial background also included work as a sex crimes prosecutor. In other words, he helped incarcerate people like Turner, 22, who is now living near Dayton, Ohio, and required to register annually for life as a sex offender.
That’s a penalty so burdensome that if Turner were to have children someday, he wouldn’t be able to get near their school. Supporters of Persky often point to this fact.
Critics and an unlikely ally
The recall campaign has been led by Stanford Law professor Michelle Dauber, a family friend of the victim. Relentless in attacking the judge and the sentence, her group has raised $1.2 million to fund the effort.
“Voters are entitled to hold him (Persky) accountable for how he exercises his discretion,” she said.
Though her effort began long before #MeToo became a hashtag and a movement, Dauber views the case as an anchor point.
She said the victim’s impact statement “really serves as a manifesto for the #MeToo movement.I think that it predates it. In some ways it helped to launch it. I think that’s because she put into words the feelings that many victims of sexual assault have had for so many generations.”
The pre-eminent local newspaper, the San Jose Mercury News, also endorsed the recall. “Voters need to stand up and make a statement on behalf of women and men about the seriousness of sexual assault,” it said in an editorial.
“Persky’s sentence failed to do so to an extent that he never will again be able to serve as a respected, effective judge. He should be recalled.”
To be sure, both sides have distinguished names and organizations backing them.
Perksy, however, has found an unlikely ally in Santa Clara County District Attorney Jeff Rosen — whose prosecutors pushed for a stronger sentence.
Rosen could have stayed on the sidelines, but instead he is actively speaking out, appearing at a recent news conference with Perksy.
“To recall a judge for one bad decision is something that would have dramatically negative effects throughout our criminal justice system, ” he said.
Persky also got a green light from the Commission on Judicial Performance, an independent state agency, which found no evidence of bias or misconduct in his rulings.
But Dauber dismissed the report as “a one-sided, closed-door proceeding.”
A divisive debate
The feelings on both sides of the recall are so strong that some are worried about the fallout of endorsing a particular side.
Persky said he asked one of his longtime friends to put up a yard sign to show support. When the man hedged, Persky said he realized how divisive the issue had become.
“He didn’t want to wonder, ‘What will my neighbors think? What will people think about me? What conclusions will they draw about my character if I put this lawn sign on my lawn? Will they still like me?’ ” Persky said.
Asked later whether the friend had eventually put up the sign, Perksy replied, “not yet.”