By George Kennedy
On June 5th voters face a stark and unusual choice: uphold judicial independence or recall Superior Court Judge Aaron Persky.
Judge Persky sentenced Stanford swimmer Brock Turner to six months in jail for charges of sexual assault. Based on the facts of the case, defendant’s background, and other criteria required by law the probation department recommended a “moderate county jail” sentence. Judge Persky followed this recommendation, sentencing Turner to six months in jail in addition to numerous probation conditions including lifelong registration as a sex offender.
I disagree with the sentence in this case and empathize with the victim. But, I oppose the recall. The recall campaign has unfairly and inaccurately portrayed the Judge, his record, and the Turner sentencing. If this misguided recall campaign succeeds, it would damage the independence of the judiciary required for the evenhanded administration of justice.
- Judge Persky followed the law and has no history of bias or misconduct. The agency that disciplines judicial misconduct by state court judges, the Commission on Judicial Performance, investigated the Turner sentencing and five other cases cited by the recall campaign and found no substantial evidence of bias or any other misconduct by the judge
- The Santa Clara County Bar Association opposes the recall because it found “no credible assertions” the Turner sentencing was illegal, unethical or in bad faith.
- The Associated Press reviewed Judge Persky’s sentencings between January 2015 and June 2016 and found that Persky followed the probation department’s recommendation in each case – as he did with Turner.
- Judges are supposed to decide cases based on the facts and the law, not popular opinion. Recalling a judge for a single sentence that complied with the law but some view as lenient undermines judicial independence, setting a dangerous precedent. Recalling Judge Persky would politicize the judiciary and undermine justice.
- Judicial recalls are extremely rare, and should be reserved for egregious, illegal or unethical conduct. Judge Persky has engaged in no such conduct. County District Attorney Jeff Rosen and Public Defender Molly O’Neal oppose the recall.
- 200+ California justices and judges, 170+ attorneys, 90+ law school deans or professors, many community leaders and elected officials oppose the recall. See voicesagainstrecall.org. Norecall2018.org
- Judge Persky, a prosecutor for six years, handled sexual assault cases. In 13 years on the bench, Judge Persky earned a reputation as fair, hard-working, ethical, and competent. His hate crimes work garnered the California Association of Human Relations Organizations Civil Rights Leadership Award. He served on the executive committee of the Support Networks for Battered Women and on the Santa Clara County Network for a Hate Free Community.
All of us make decisions every day. But judges decide numerous and serious matters affecting individuals and the public. If judicial independence means anything it means that a judge who follows the law should not lose his job.
The author was Santa Clara County District Attorney from 1990 until 2007 and a prosecutor for his entire 35-year legal career. He wrote this commentary for this newspaper.