By Julia Ingram
On Tuesday evening at Stanford Law School, Stanford Law Professor Mark Lemley and Erwin Chemerinsky, dean of UC Berkeley’s law school, debated the merits of recalling Judge Aaron Persky ’84 M.A. ’85.
The debate was sponsored by the League of Women Voters, the American Constitution Society and the Criminal Law Society. While Lemley advocated for the recall, Chemerinsky advocated to retain Persky.
Persky’s position is in flux after a petition to recall the Santa Clara County Superior Court judge received sufficient signatures. Persky handed down what some criticize as an overly-lenient sentence to former Stanford swimmer Brock Turner, who was convicted of three felony counts of sexual assault. The Persky recall has sparked significant debate over judicial independence.
The June 5 election that will decide the recall also presents to voters the choice between two opposing candidates who have already announced they are running for Persky’s seat: Cindy Hendrickson ’87, one of the six assistant district attorneys on DA Jeff Rosen’s executive team, and Angela Storey, a civil attorney based in San Jose.
The debate was intended to allow law students to make an informed decision before they vote on the recall on June 5, according to an email announcing the event.
Patterns of rulings
At the outset of the debate, Lemley argued that Persky, over time, has exhibited a pattern of rulings favorable to male athletes alleged to have committed violent acts against women. Employing five examples, Lemley said that this recurring bias was a more compelling reason for recall than the Turner sentence alone.
“Persky has repeatedly favored privileged men, especially college athletes, over women of color,” he said.
According to Lemley, each of Persky’s rulings in these cases was unusually lenient. He pointed out that Persky was a lacrosse player at Stanford himself and suggested a personal bias because of Persky’s own history as a collegiate male athlete.
One of the specific cases that Lemley mentioned was a case of alleged gang rape by members of the De Anza College baseball team. Lemley said that Persky allowed the defense to present, as evidence of the victim’s recovery, photos that showed the victim wearing a “skimpy outfit.”
However, Lemley said, Persky did not permit the prosecution to enter photos of another woman reportedly raped by the same defendants.
Lemley also mentioned a case in which a convicted felon was sentenced to only four days in jail for child pornography.
He also brought up the case of Ted Gunderson, a football player who severely beat and choked his ex-girlfriend and whose sentence was deferred to allowed him go to Hawaii to play football.
However, in each of these cases, Chemerinsky argued that Persky followed the probation department’s recommendation — for Turner’s case, the department recommended a sentence between six and 12 months, which Persky followed with the six-month sentence.
Chemerinsky said that Gunderson’s sentence deferral was similarly within the margins of the law.
Lemley, however, argued that Chemerinky’s statement that Persky’s sentences were lawful was factually incorrect for some of the cases listed, such as the Gunderson case.
Chemerinsky said that five cases out of the 2,000 Persky has tried are not sufficient to prove a systematic bias.
Lemley argued that the majority of those cases are irrelevant to consideration of the recall, given the fact that only 64 of the cases involved sexual violence against women.
Meanwhile, Chemerinsky outlined his own standard for recall: Only when a judge has acted unethically, illegally or with gross incompetence should he be removed. Chemerinsky said that Persky does not meet any of these conditions, especially because each of his sentences was legal, despite being perceived by the public as overly lenient.
When asked about the tendency to give lenient sentencing on cases that involve violence against women, Chemerinsky suggested that changing laws is a preferable method of recourse compared to judicial recall.
“We can change the statue that was done to prevent the lenient sentences,” Chemerinsky told The Daily following the debate. “The district attorney can appeal if the sentences are too lenient but I disagree there is a pattern of lenient sentences; I don’t think that the appropriate thing to do would be to recall the judge. To me, what is really important is that the judge followed the recommendations of the probation letter and the district attorney. I don’t think that shows any bias.”
The judicial independence question
Chemerinsky’s main concern if Persky were to be recalled is the impact it would have on judicial independence.
“The message to judges throughout the state is going to be: If you propose a sentence that is seen as too lenient, there will be a recall effort against you,” Chemerinsky said.
He said that this dynamic will send a message to judges in California to impose harsher sentences in order to please voters, which he said will translate to harsher sentences against men of color.
When the panel opened up to questions, an audience member suggested that judges will recognize that Persky’s recall is on the basis of his own pattern of sentencing and will not modify their sentencing tendencies in order to please the public.
A rare measure
When asked how Persky’s sentences compare to sentencing in analogous California cases, both Lemley and Chemerinsky said they do not have comparative statistics on the matter.
However, Lemley again cited the rarity of recalls; if Persky is recalled, he will be the third judge in the U.S. history to be recalled and the first since 1932. Lemley said it is unlikely there will be “an avalanche” of recalls, even if Persky is recalled in June.
The effort to recall Persky has been spearheaded most prominently by Stanford Law professor and activist Michele Dauber, who is a family friend of Turner’s victim, known publicly as Emily Doe. Dauber led efforts to exceed the requisite 58,634 valid signatures for the June 5 ballot and has since advocated for the measure by helping students temporarily register to vote in Santa Clara County so they can participate in the election.
Opponents of the recall have been vocal as well. Ninety-five California law professors signed a letter advocating against the petition, claiming it threatens judicial independence.
Specifically, Stanford Law Professor Robert Weisberg worries that the Recall Aaron Persky campaign is perceived as the official stance of Stanford Law.
“There is a fair amount of distress that the recall campaign and things said by the recall campaign were imputed to [Stanford] Law School,” Weisberg told The Daily last fall. “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.”
Contact Theodora Boulouta at boulouta ‘at’ stanford.edu and Julia Ingram at jmingram ‘at’ stanford.edu.