Judge Persky recalled: another day of infamy

By Paul Elias, AP . . . The leader of the successful recall of a Northern California judge for an unpopular sexual assault sentence warned that the results show women’s rights and the #MeToo movement are now a potent political force that politicians ignore at their own peril.

“The broader message of this victory is that violence against women is now a voting issue,” said Stanford University law professor Michele Dauber, who launched the recall effort against Santa Clara County Judge Aaron Persky.

The judge sent former Stanford swimmer Brock Turner to jail, not to prison. Critics said the six-month sentence was too lenient.

But opponents of the recall warned that Tuesday’s lopsided result — Persky lost by 20 points — is also a powerful political force where it shouldn’t be: the courtroom.

“This sets a dangerous precedent for state court judges in California and perhaps beyond,” said LaDoris Cordell, a retired Santa Clara County judge who supported Persky’s campaign against the recall.

Cordell was among a number of law school professors and retired judges who fear that judges may now take public perception into account more than they should when handling high-profile and sensitive cases.

The recall effort started in June 2016 shortly after Persky sentenced Turner to six months in jail. Prosecutors had wanted a lengthy prison sentence for Turner in the sexual assault of a young woman incapacitated by alcohol.

They noted that Persky was removed from office for delivering a lawful sentence that Santa Clara County District Attorney Jeff Rosen declined to appeal. California’s Commission on Judicial Performance ruled that the sentencing was done correctly. Now, they fear, other judges in elected positions will be reticent to issue unpopular but lawful rulings.

“Subjecting judges to recall when they follow the law and do something unpopular undermines judicial independence,” Rosen said in a statement. “When judges believe that they will lose their careers for making unpopular but lawful decisions, they may lack the courage to stand up for the rights of minorities or others needing protection from powerful majorities or those with even understandably inflamed passions.”

A widely cited 2015 study of elected state judges in Pennsylvania and Washington by New York University’s law school concluded that judges are influenced by election cycles. The study found judges issued longer sentences for serious felony conviction when they were close to re-election.

“It’s very concerning if the recall becomes a normal tool for removing judges,” NYU law school professor Alicia Bannon said. “Following the law isn’t necessary popular and judges need some form of insulation from public perception.”

Read the full piece at The News & Observer

* NARSOL will be writing its own analysis of this case as soon as our conference is over and also expects to feature it in a podcast.

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    • #41650 Reply
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      WC_TN

      Whew! This is really a disastrous precedent. This just goes to show you that the victim’s rights movement has far too much sway. Yes, I get it that victims get to be heard, but I don’t get going about it in such a way so as to undermine judicial independence. Now judges are going to go into maximum CYA mode and slam all “sex offenders” with disproportionately long sentences just to save their own political careers regardless of whether or not the crime warrants a harsh sentence.

      This is as bad as the Supreme Court ruling in Salinas v. Texas that said your silence during a non-custodial questioning by police can be used against you.

    • #41670 Reply
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      Sub

      Is it legal for a the American Truck School to accept felon applicants, but to write under requirements: “no sex offenders”?

    • #41733 Reply
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      Tim L

      This is a result of SCOTUS ruling on Megan’s law & the Whetterling act. So a the words of judgements and judges are under attack because they are following their leadership. Undermining judicial authority is a death nail in democratic republics.

    • #41875 Reply
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      WCB

      This is not a good precedent. I, of course, view it from my perspective – 36 years on the bench. I found early on that I had to make a decision – be swayed by public reaction or not. I chose not to let it affect my decisions, deciding that I would rather lose an election than sell out to public opinion. But I watched others do otherwise, increasing the severity of sentences during a contested election year. Judge Persky’s recall just increases the likelihood of this type of thing.

      • #41902 Reply
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        Tim L

        WCB,

        36 bench years is a long tough road. You must have observed testimonies most would presume ficticious. Too vile to repeat the behavior of some humans.

        I, like you come from a different perspective. My analysis forms solely from the “DATABASE” as the primary interest. It is a property interest. After all, by what other means could government attain email addresses and such? No way other than stationing agents over the registrant’s shoulder. Clearly a warrantless search.

        The database and uses, in human history will be significant to say the least. Perhaps more significant than the printing press. Similar to the fire arm a database can be misused.

        State’s use of the database in this case, while presumptively civil and sound policy, do indeed impose a form of indentured servitude (electronic) and removes significantly the right to remain silent and incriminate oneself.

        May I implore a response to what I have posted?

      • #44032 Reply
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        Glen

        Thank you for your service and Honorable approach to judicial matters. Having said that, after reading your post, do you feel appointment of judges -rather than electing them – may more likey ensure a judge could base a decision more fairly? As opposed to the pressures of public oppinion may have on a judges verdict?

        Respectfully,

        Glen

    • #42783 Reply
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      d

      When Judgments are made to make a part of the public happy and not based on LAW this country is gonna be FUBAR!!!! These Idiot me too women are going to hate it when the pendulum swings back.

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