"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, June 25, 2016

The defenders of Judge Persky - market players in the legal profession

4 days ago, on June 21, 2016, a Stanford Law School law professor Michele Dauber published a letter in The Washington Post supporting recall of judge Aaron Persky, a former Stanford Lacrosse team captain, for giving a super-lenient sentence to Brock Turner, a Stanford swimmer.

Professor Dauber argued that Judge Persky practically contested and corrected through his sentence a jury verdict for felonies, one of them carrying a mandatory minimum sentence of 2 years in prison with no probation allowed.

For the sake of fairness, other reports indicated that under California law, Judge Persky did not violate sentencing guidelines, that he was allowed to consider "unusual circumstances" to reduce the sentence and give probation.  Turner's youth, level of intoxication and lack of prior criminal record were used by Judge Persky as "unusual circumstances" to reduce his sentence.

Yet, Professor Dauber clearly pointed out in her letter that Judge Persky:

  • minimized trauma to the victim, and used for purposes of giving leniency to the rapist "character letters" openly blaming the victim;
  • "verged on questioning the jury’s verdict, calling the trial an 'imperfect process' and saying that Turner should not be 'penalized' for failing to fully accept the findings of guilt" - thus acting as an advocate for Turner; 
  • was not impartial, to which the prosecutor agrees where, while not filing an appeal fearing it will fail because Judge Persky was within his "discretion", the prosecutor did ask the court to remove Persky from another sex assault case claiming he has lost confidence in Persky's impartiality.

Persky's lenient sentence caused an unheard of response - potential jurors refuse to sit in his courtroom, apparently believing that so doing is a waste of time and that he is unable to preside impartially.

Professor Dauber pointed out that under the California State Constitution, judges are subject to recall.

That's exactly what people of the State of California, led in their effort by U.S. Representative Jackie Speier and state legislative representatives, want to do - recall judge Persky based on the state Constitution.

Professor Michele Dauber, being reportedly, friend of the victim in the Turner case, is surely not impartial.

Yet, neither is Judge Persky.

Both Michele Dauber and Judge Persky appear to be advocates - Judge Persky for Stanford athletes and for young white males raping females, and Michele Dauber - for her raped friend.

Yet, it is not Michele Dauber alone who want the recall of Judge Persky, it is the millions of people who signed the recall petition and the legislators in the State of California.

Nor is it unlawful to do the recall - since it is specifically permitted by the California State Constitution.

Here is what the public defender of Santa Clara County says about Judge Aaron Persky:

"Aaron Persky is widely held by both prosecutors and defense attorneys to be one of the most fair and thoughtful jurists on the bench.

A good and decent man’s reputation is irreparably damaged, his physical safety and that of his family is in serious danger, and the very integrity of the criminal justice system he so faithfully served is in jeopardy."

The sentence of Brock Turner and Judge Persky's conduct at the sentencing hearing does not describe a "good and decent man" though.  It describe a white judge who favored a white athlete from the judge's former alma mater, put down the victim of a sexual assault and argued that the jury verdict that Judge Persky was law-bound to enforce, might not be proper.

Judge Persky has defenders.

The first, as described above, is the Santa Clara County Public Defender Ronald O'Connor who is "appalled" by the recall efforts which, in his opinion, undermine the cornerstone of judicial process - judicial independence.

The second is a prominent constitutional law professor Erwin Chemerinsky.

Professor Chemerinsky is entitled to much less credit as an impartial scholar though after he allowed himself to be bought by the BarBri enterprise.

Professor Chemerinsky's reaction to public efforts to recall Judge Persky is this:

"'I think the public should express its outrage through all of the means that views are expressed: comments to the press, news conferences, petitions, demonstrations, op-eds,' said Erwin Chemerinsky, dean of UC Irvine’s law school. 'People should express their views, but a recall is not the answer and is a real threat to judicial independence.'"


The recall effort is allowed and is following the procedure provided for by the California State Constitution.  Surely, a prominent constitutional law professor such as Erwin Chemerinsky must know that the process is lawful.

The next thing to consider is that Erwin Chemerinsky is a practicing attorney and, as the majority of practicing attorneys in this country, will not be caught saying anything against a judge that will have a potential of actually hurting the judge.

So, Chemerinsky, while calling Judge Persky's decision “outrageous,” “misguided” and “grossly inadequate,”  allows the sovereign employer of that judge, "We the People" of the State of California, only one recourse against Judge Persky's behavior: running at the mouth, with no potential of having any impact on the judge.

That's a gross disrespect to democratic process of recall of judges, provided in the California State Constitution.

Reportedly, the president of the California Judges Association, called the looming recall “potentially catastrophic,” claiming that  "[a]ny effort to recall any judge in this country for making a legally valid ruling, no matter how popular or unpopular, presents a potentially catastrophic threat to our system of justice”, and added that “[i]f judicial officers are forced to fear the masses, then American justice and individual constitutional rights will be decided by judges surveying the crowd to preserve his or her own livelihood and personal well-being.”

But - the public is outraged exactly because it smelled the rat and believes that Judge Persky's decision is corrupt and that the judge is "surveying the crowd" - the rich white crowd - "to preserve his or her own livelihood and personal well-being".

The problem that has come to the fore in Judge Persky's case is the so-called "judicial discretion", and how much of it can judges be allowed in deciding cases - at least where issues of fact are already decided by juries.

Sexual assault on an unconscious victim is completely reprehensible.

Yet, reportedly, "current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist", and that's what California lawmakers seek to correct, after the public outcry over Judge Persky's lenient sentence motivated by Judge Persky's camaraderie with an athlete from the judge's alma mater, as well as by Judge Persky's apparent personal beliefs that the victim's own behavior is to blame - a belief that was demonstrated in a prior 2011 case, too.

Let us ask a question - who wrote the law that is on the books now?

The one making a long prison sentence mandatory when "force is used", but no when the victim is unconscious or severely intoxicated and unable to resist?

How come sexual intercourse with an unconscious victim is not forcible rape?

And, aren't the lawmakers in the State of California predominantly white male lawyers? Who only responded to close the loophole after an international public outcry?

Two public defenders actually launched a petition against recall.

They reportedly said:

"The punishment or removal of Judge Persky in response to his exercise of discretion could lead to policies that limit that discretion, will deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal...  We fear that this shift will disproportionately impact the underprivileged and minorities in our communities and perpetuate mass incarceration.”

So, the concern is that:

  • judicial discretion in sentencing will be legislatively restricted, and
  • that legislative restriction of judicial sentencing will restrict judges in extending mercy to criminal defendants, and
  • that will "disproportionately impact the underprivileged and minorities", and
  • will "perpetuate mass incarceration".
It is correct that what is legislatively sought now is to restrict judicial discretion in sentencing.

Yet, that does not take away from the District Attorney an ability to reduce crimes through plea bargaining, it only restricts the judge from giving too lenient sentences for serious crimes after juries have already spoken.

As to judge's ability to exercise "mercy", affecting minorities and perpetuating mass incarceration, which will allegedly be affected by the recall efforts of Judge Persky, such claims are questionable at best.

According to the California Attorney General, violent crimes are actually decreasing at present.

Not all felonies are violent crimes - fraud and theft are also felonies.

Only 2.3% of felonies are tried in state courts, the majority of convictions are through plea bargains.

The majority of cases that are tried are tried by private criminal defense attorneys on behalf of those defendants who can afford those expensive private criminal defense attorneys.

Thus, claims that restricting a judge's discretion at sentencing after a jury trial will somehow disproportionately affect minorities or "perpetuate mass incarceration" are simply not credible.

What is more credible is that two public defenders want to get into good graces with the judiciary by launching the petition in support of Judge Persky.

What is also credible is that all judges publicly recognized that the most cherished part of their jobs is ability to act on a whim - the so-called "judicial discretion".

To say that restricting judicial discretion after jury trials is restricting acts of mercy, and especially when that is coming from public defenders, is defying reality.

Judges most often punish criminal defendants for going to trial, making them serve the maximum of the allowed sentences, and that is the opposite of what Judge Persky did with the privileged white rapist Brock Turner.

Judges in criminal courts are mostly former prosecutors, and are mostly pro-prosecution.

In this case, I cannot say that judge Persky is NOT pro-prosecution, he is just MORE pro-Stanford (former) athlete and pro rich white privileged criminal defendant.

After all, who knows what Judge Persky's plans for the future career are, and who knows what Brock Turner's family, or its friends, can offer Judge Persky in return for the lenient sentence.  Future will show.

But, anyway, all criminal defense attorneys, including the public defenders who launched the campaign in support of Judge Persky, know that once you go to trial, in case you lose your client most likely faces a maximum sentence, not a lenient judge like Persky.

That is the rule, Persky's lenient sentence to a rich white kid was the exception.

So, claiming that the Perskys of the California court system will be somehow intimidated into giving tougher sentence, and that it will affect minorities is a lame argument at best - because that is already happening, and what Turner got is exactly the opposite of the current trend.

Arguing that judges in criminal courts will be restricted in their discretion to give mercy which they never give, and opposing the limitation of judicial discretion to impose sentence of a convicted rapist is simply asking for attention and favors from the judicial system.

It is apparent that all defenders of Judge Persky are practicing attorneys who stand to gain from their support of judicial whims and who stand to lose from judicial disfavors exercised through the same judicial discretion they fight hard to preserve.

It is my firm belief thought that, given the backgrounds and patterns of behavior of most judges, allowing judges too much discretion allows them to assert privileges of their friends and members of their own social class and undermines people's trust in the integrity of the judiciary.

I will publish a separate story about yet another set of opponents of recall of Judge Persky - Stanford Law School graduates, the most recent class.

Stay tuned.

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