Stanford Law grads write open letter, question Judge Persky recall

June 25, 2016, 10:53 a.m.

In the midst of ongoing controversy over former Stanford student Brock Turner’s six-month jail sentence for sexual assault, a group of 53 recent graduates of Stanford Law School (SLS) have come forward with an open letter to SLS’s Frederick I. Richman Professor of Law Michele Dauber that criticizes Turner’s lenient sentencing but at the same time urges Dauber to reconsider her efforts to recall Judge Aaron Persky ’84 A.M. ’85.

The recall movement that has thrust Persky into the national spotlight includes several online petitions that called for his removal from the bench after many criticized his sentence for Turner as too light. Dauber has blasted the sentence in several media outlets. In her article for the Washington Post, she responds to Roderick O’Connor, a deputy public defender who has opposed the recall movement.

“Brock Turner’s sentence for three violent sexual felonies isn’t merely shocking, it’s dangerous,” she writes. “It reinforces the myth that sexual assault is not a serious crime, particularly when it is perpetrated by young white male athletes in elite universities.”

Dauber has been an active organizer for the recall efforts, spearheading the official California recall movement. And she has long been a prominent figure in the legal community for campus sexual assault. From 2011 to 2013, Dauber co-chaired Stanford’s Board on Judicial Affairs and helped to lead the first University process that reformed Stanford’s policy on sexual assault.

The law graduates’ open letter neither supports nor defends Persky’s decision, but rather focuses on issues of judicial independence and warns of a recall’s potential impact on future jurisdiction, according to several drafters. Although the dictionary term of judicial independence applies to federal judges (Persky is a state court judge), the letter-writers and signers are concerned with the consequences of a public majority recalling any judge.

“Judicial independence is a cornerstone of due process and an essential prerequisite of a fair criminal justice system,” the letter states.

The SLS graduates emphasize that they are just as troubled as Dauber by the case’s handling of the issues of race, privilege and sexual assault– and that they do not believe that Persky’s decision was correct. However, they argue that judges must be allowed discretion:

…humility requires us to recognize that we won’t always be able to distinguish between legitimate and illegitimate exercises of judicial mercy. If you or we claim the power to make that decision, how can we credibly deny it to anyone else? If we demand that Judge Persky immediately hand over his gavel for acting on his empathy for this defendant, how we can we credibly assure any other judge that her hand need not waver when the human circumstances of a case seem to call for compassion?

Nicholas Rosellini ’12 J.D. ’16, who helped draft the letter, discussed the recall as a dangerous precedent to set. He said that to ensure due process, judges must be able to examine facts without fear of an angry public.

Rosellini, who participated in SLS’s Three Strikes Project, worries that erosions in judicial independence could affect the future of disenfranchised people. He said that judges are the last stop for “unpopular people” such as the incarcerated, the convicted, the accused, and minorities.

“Once you do that [recall process], it’s really hard to credibly deny that to the next group of people who are angry for another reason that might be unjustified,” Rosellini said.  

Another drafter of the letter, Akiva Freidlin J.D. ’16, explained the motivation and planning of the letter. He, like many others across the country, were frightened by the implications of the sexual assault case.

“But I started to see the response taking shape as a ‘we should get rid of this particular judge,’ who appears to have applied the law legally,” Freidlin said. “[This] goes against the principles that allow us to have a system where an independent judiciary applies laws that they don’t make.”

Both Freidlin and Rosellini urged other avenues of advocacy to replace a recall.  The letter concludes by asking Dauber to pursue different reform tactics such as “educating future judges and jurors about the realities of sexual assault, or pressing for systemic changes in how these cases are handled.”

The SLS graduates are not the only judicially-minded voice of opposition to the recall efforts. A number of California public defenders have launched their own online petition, while SLS Professor Emerita Barbara Bobcock recently criticized the recall effort in her own open letter.

In response to these viewpoints, Dauber has pointed out in other news outlets that, under the California constitution, judges are elected and therefore “accountable to the people.” She argues that recall is a constitutional right for citizens of Santa Clara county, emphasizing that the recall efforts are not accusing Persky of illegal action, but rather are using the process provided in the state constitution for dealing with a judge’s misuse of his discretion.

In an email to The Daily, Dauber said she has to “respectfully disagree” with the law students who wrote the letter.

“In their view, both victims and defendants in Judge Persky’s courtroom simply have to endure biased treatment in order to avoid a hypothetical and highly unlikely set of consequences,” Dauber wrote, after noting that the law students agreed that the sentencing was unjust. “This argument does not take seriously these actual people who will not receive justice.”

“I wonder if they would make this same argument if Turner had been convicted of a violent crime based on race or sexual orientation or gender identity rather than sex,” she added.

But the law students remain fearful of a recall’s future consequences.

“At the end of the day, someone has to make the decision as to what [constitutes] justified or unjustified anger,” Rosellini said. “The recall effort inevitably puts that responsibility on the majority of the voting public. And the voting majority, sometimes they get it right, as in this case, but other times, they might not.”


Contact Isabela Bumanlag at isabela7 ‘at’


This article has been updated to reflect Michele Dauber’s comments to The Daily. 

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