Breaking silence, Persky says recall will compromise judicial independence, prove dangerous

May 9, 2018, 12:10 a.m.

Two years after handing down a controversial ruling in a sexual assault case that drew international scrutiny, Judge Aaron Persky ’84 M.A. ’85 broke his silence on Tuesday morning to denounce the June 5 recall measure that could remove him from the bench.  

At a press conference in a Palo Alto residence, Persky advocated the judicial independence that opponents of the measure say the recall threatens.

“I think judges typically should accept criticism of their decisions,” he said. “It’s legitimate, it’s an absolutely justified avenue of public discourse. We should sit, we should listen, we should take it … But the recall takes it one step too far. The recall, if successful, threatens the integrity of our justice system, and it demands a response.”

Persky drew controversy in summer of 2016 when he sentenced former Stanford student Brock Turner to six months in jail for the sexual assault of an unconscious woman, a punishment many decried as too light. While Persky cited Turner’s youth and lack of prior offenses as mitigating factors in the sentencing, others argued that the judge showed bias toward a privileged defendant.

A campaign to recall Persky from the bench, led by Stanford law professor and activist Michele Dauber, gathered enough signatures to land on the June 5 ballot for Santa Clara County. If voters choose to remove Persky, he will be the third judge recalled in the history of the U.S. and the first since 1932.

Persky said that the impact of the recall would not necessarily be overt, but would instead be “insidious.”

“What judge wants to sit in his chambers, contemplating a high-profile decision, and know that somewhere, if someone on one side or the other is displeased with that decision, they are willing to contribute $221,000 to help recall that judge?” he posed. “The judicial recall, if successful, will be a silent, corrupting force, a force that will enter the minds of judges as they contemplate difficult decisions.”

During the press conference, Persky emphasized the importance of judicial independence and cited instances of court cases considered controversial at the time of the ruling. Specifically, he made reference to the landmark Supreme Court Brown v. Board of Education decision, which in 1954 held that segregated public schools violated the Equal Protection Clause in the Fourteenth Amendment.

Brown v. Board of Education was unpopular in many states and many districts, and it took years of litigation to vindicate the rights of those children,” he said. “Imagine for a moment if those federal judges had been subject to judicial recall in the face of that unpopularity.”

The parallels Persky drew between Brown v. Board and his controversial Turner sentencing drew criticism from multiple legal scholars.

Dauber called the comparison “absurd.”

“In Brown, the Supreme Court bravely ruled with the powerless against the powerful,” Dauber wrote in a statement to The Daily. “In Brock Turner’s case, Persky did the exact opposite. That was neither brave nor commendable…The public has lost faith in him as a result and that is why he is being recalled.”

Stanford Law professor Robert Weisberg, a vocal critic of the recall campaign, said, “I don’t think it was a useful analogy.”

Proponents of the recall movement say Persky has a track record of leniency toward men who commit violence against women, and in particular toward male athletes.

“Persky has repeatedly abused his discretion on behalf of abusers,” Dauber said. “As a result, voters in this county have lost confidence in his ability to be fair. That’s why nearly 100,000 voters signed a petition to recall him and why the voters will vote him off the bench in June.”

Speaking at a debate hosted by the law school last month, Law Professor Mark Lemley pointed to several decisions critics have found suspect: for example, Persky’s four-day sentence for a man convicted of possessing images depicting sexual abuse of children and his decision to let an athlete who beat his girlfriend defer his sentence to play football in Hawaii.

Opponents of the recall movement, including many of Dauber’s colleagues at Stanford Law, have disagreed that Persky’s record shows bias and expressed concern over a recall threat’s potential to compromise judges’ ability to rule independently of popular opinion and to show mercy within the law. Persky generally follows the probation department’s recommendation in his sentencing, an Associated Press review found.

Some say the recall movement could push judges toward harsher sentencing that disproportionately affects minority defendants.

Weisberg has previously voiced concerns that the Recall Aaron Persky campaign might be construed as the stance of Stanford Law because of its visibility. He said that Stanford law professors have not been as vocal in their discussions about the recall overall — of the SLS professors who have taken a public stance on the matter, though, most are against the measure, he said.

“There’s been an ugliness and a personalized side of this campaign that makes professors reluctant to speak out,” he said.

Weisberg declined to clarify what he meant when he spoke to the campaign’s “personalized” nature. He also emphasized that he had no personal ties to Persky and has never met the judge, and that his stance is based on policy and principle.

Dauber said that Persky’s campaign has engaged in “victim blaming” against the woman Turner assaulted, who is known publicly as Emily Doe.

“Judge Persky’s campaign spokespersons have said for instance that Brock Turner didn’t deserve to go to prison, in part because Emily Doe was highly intoxicated,” Dauber said. “That kind of ugly personal attack on a sexual assault victim is never acceptable.”

For Weisberg, the issue of judicial independence transcends Santa Clara’s county lines.

“There’s no question that this kind of attack on the judiciary, unfortunately, resonates with other attacks on the judiciary on other fronts that have happened around the country, that have been promoted by the president of the United States and promoted by very undemocratic figures in American politics,” he said.

Earlier this spring, Persky appealed the recall measure on a technicality, but his appeal was denied.

Two candidates are running to replace Persky if he is recalled in June: Cindy Hendrickson ’87, an assistant district attorney, and Angela Storey, a San Jose-based civil attorney who has said she does not support the recall movement but wants voters to have options.


Contact Courtney Douglas at ccd4 ‘at’

Courtney Douglas worked for The Daily from 2016 to 2020, and served as editor-in-chief of Volume 254.

Login or create an account

Apply to The Daily’s High School Summer Program

deadline EXTENDED TO april 28!