By Katie Keller
Public debate over the potential recall of Judge Aaron Persky ’84 M.A. ’85 — who sentenced former Stanford student Brock Turner — intensified over the past summer. While the recall campaign continued to achieve success in fundraising and petitioning under the direction of Stanford Law School professor Michele Dauber, it was met with increasingly frequent challenges from a growing campaign in support of retaining Judge Persky.
In June 2016, Judge Persky handed down a controversial six-month county jail sentence for Turner, who was convicted of sexually assaulting an intoxicated and unconscious woman outside a Stanford fraternity party. Many people in the Stanford community and across the country responded to what they perceived as a lenient sentence with a strong public backlash. Turner served half his sentence and was released in September 2016 for good behavior in jail.
“Shortly after [the Turner sentence], I started getting calls from women, lawyers and some former judges in the county, saying that Judge Persky is an outlier, that he has a reputation, that he is known to be more lenient in these kinds of cases,” Dauber, Frederick I. Richman Professor of Law, recalled.
Dauber explained that she and her team of researchers “obtained [Persky’s] entire record” of court cases in order to take “a more systematic approach” to this accusation of bias. According to Dauber, they revealed that compared to his peers, Persky was “unequivocally” an outlier in terms of leniency toward such defendants.
Actions of Persky’s that critics see as problematic range from a 12 week, weekend-only jail sentence for domestic violence to a decision to delay an athlete’s domestic violence sentencing so that he could play football.
So far, the recall campaign has raised $500,000 and has gained major endorsements from a wide variety of public officials, industry leaders and nonprofit organizations. The campaign achieved an important milestone Aug. 9, when it received permission from the county to begin collecting signatures on its petition to put Persky’s recall on the June 2018 ballot. The group’s goal is to get 90,000 signatures; so far, it has 22,000.
This effort was met immediately with legal opposition from Persky himself, who filed a lawsuit intended to halt the petition just a few hours after the recall campaign was green-lighted for signature collection. The lawsuit calls into question citizens’ right to recall judges through the grassroots process that Dauber’s campaign has followed. Persky argued that only the state should have the power to recall.
While Dauber noted that her campaign worked “with the county for months and meticulously [followed] the requirements laid out in the Elections Code” in filing their petition, Persky’s lawyer, Elizabeth Pipkin, argued that “recall proponents have not complied with the California constitution,” since “recall campaigns [for judges] must be administered by the Secretary of State.”
Ultimately, the recall campaign was allowed to continue. Retired judge Kay Tsenin ruled in favor of the campaign 17 days after the lawsuit was filed, amid support from California’s Attorney General Xavier Becerra. Judge Persky immediately appealed the decision.
Supporters of the recall campaign continue to criticize Persky’s “obstructionist” lawsuit, which Dauber called a “last-ditch desperate effort to avoid the election.”
“No one agrees with [Persky],” Dauber said of the case made in his lawsuit. “The county doesn’t agree with him, the secretary of state doesn’t agree with him, the attorney general doesn’t agree with him, [and] the trial court judge didn’t agree with him.”
Persky’s legal team maintains the legitimacy of its argument and does not plan to drop the matter even after the initial, unfavorable ruling.
“Even a great umpire calls a strike a ball from time to time,” Pipkin said. “We have appealed the decision and look forward to a hearing on this matter.”
Dauber, who called Persky’s appeal “frivolous” and a “waste” of taxpayer money, criticized Persky’s legal team for pursuing what she considers an attempt on Persky’s part to avoid standing for a recall election on his own merit.
“He’s just trying to stall and delay and waste money and time in order to avoid having this go to the voters,” Dauber said. “Because he knows that if this goes to the voters, he’ll lose.”
The anti-recall campaign
The legal pressure that Persky has put on the recall campaign is only one aspect of a larger effort to retain his position. The anti-recall campaign stepped up its fundraising efforts in the last few months, holding events such as an “Evening with Judges” to solicit donations from local attorneys. The Retain Judge Persky campaign’s midsummer financial disclosure statements show that the initiative has raised $128,000.
In a notable escalation of his anti-recall efforts, Persky recently hired the political consultant Brian Seitchik to assist his retention efforts. Seitchik is a former Republican Party operative whose experience includes running President Donald Trump’s Arizona campaign during the 2016 election.
The anti-recall campaign’s connections to the Trump campaign did not sit well with Dauber.
“Donald Trump bragged about committing sexual assault and then said all the women who came forward against him were lying,” Dauber said. “To be honest, I think that Persky hiring the Trump team tells you pretty much everything you need to know about his attitude about women and sexual assault.”
Opposition to the recall campaign has extended beyond Persky’s own efforts, however. Most notably, 95 California law professors recently signed a letter expressing their disagreement with the recall campaign and urging readers against signing its petition. As of last month, this cohort included 30 professors from Stanford Law School.
“The case for recall is misguided, ill-informed and frankly, the campaign has pushed a lot of distorted information,” saidRobert Weisberg JD ’79, Stanford Law School’s Edwin E. Huddleson, Jr. Professor and one of the signatories of the letter. “It’s a very powerful and somewhat cynical publicity machine.”
“Even the recallers would say that you should not recall a judge because you disagree with one or even a few sentences, but he or she has to be an outlier,” Weisberg explained. “And if we’re talking about sexual assault cases, I have not seen evidence that [Persky] is an outlier at all or that there is any independent evidence of bias.”
The signatories of the letter are backed by a cohort of prosecutors and defense attorneys who also oppose the recall campaign. In particular, they cite the opposition of Santa Clara County’s current District Attorney, Jeff Rosen — and the two DAs who preceded him — as evidence of the recall argument’s fallaciousness.
“Jeff [Rosen] obviously wanted a longer sentence [in the Turner case]; he said so,” Weisberg said. “Why is it that, as the letter indicates, the last 27 years of elected prosecutors in Santa Clara County … all have come out clearly against the recall?”
Dauber disputed the the claim that anti-recall efforts have full support from Santa Clara County’s elected prosecutors, citing Rosen’s refusal to let Persky hear a similar sexual assault case following Turner’s controversial sentence. Rosen publicly clarified that decision in a statement, writing that “after … the recent turn of events, [the District Attorney’s office] lack[s] confidence that Judge Persky can fairly participate in the upcoming hearing.”
“If [Rosen] believe[s] that [Persky] couldn’t participate fairly in a sexual assault of an unconscious victim, why isn’t that disqualifying for him as a judge?” Dauber asked. “It seems to me like Jeff Rosen is saying and doing contradictory things here.”
Weisberg believes many Stanford Law professors have publicized their opposition to the recall campaign partly out of a desire to separate the effort from the University.
“There is a fair amount of distress that the recall campaign and things said by the recall campaign were imputed to [Stanford] Law School,” he remarked, adding that “if more Stanford law professors opposed the recall than favored it … that should help disabuse the public of the notion that [the recall campaign] is Stanford Law School’s position.”
Weisberg noted that many signatories of the letter agree with Persky’s detractors that Turner’s sentence was too light, and he acknowledged the imperfections of the justice system.
“To say the system is imperfect and to say that victims are not well served — of course [that is true],” Weisberg said. “We’re a long way from where we should be — very very far.”
But Weisberg took issue with the recall campaign’s methods.
“Things should be done through general legislation,” he said, “rather than by targeting a judge who clearly acted within the law.”
Dauber criticized the notion that Persky ought to be immune from consequences because his actions were legal and defended the legitimacy of the recall campaign.
“Because something is lawful does not make it right or desirable,” Dauber said. “That is often the whole point of social movements — to challenge lawful arrangements that are not desirable. We have to end the culture of impunity for these offenses, and holding elected officials accountable for creating that culture and reinforcing it is a legitimate exercise of democratic accountability.”
An earlier version of this article incorrectly paraphrased Robert Weisberg, saying that he believed Turner was not brought to justice. In fact, Weisberg discussed overall imperfections he saw in the justice system. The Daily regrets this error.