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.
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".
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.
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.