Aaron Persky

In 2016, Persky received international media attention and widespread criticism for sentencing Brock Allen Turner, a 20-year-old Stanford student convicted of three felony counts of sexual assault, to six months in jail and three years of probation.[17] The statutory maximum sentence was fourteen years; prosecutors sought a six-year term, while the Santa Clara County Probation Department, in its presentence investigation report, recommended a six-month term in county jail, and the defense asked for a four-month term in county jail.[25][26] During sentencing, Persky said he considered the factors noted by the Probation Office and the "severe impact" of imprisonment on the defendant's life.[26]

Some legal experts viewed the sentence in the case as unusually light.[24][26] One juror in the Turner case wrote to Persky that his sentence was "ridiculously lenient" and made a "mockery" of the entire trial.[27] Danny Cevallos, a Pennsylvania-based criminal defense lawyer and CNN legal analyst, said that while the sentence was lenient, Turner's prior clean record made him a candidate for minimum sentencing.[26] Following the controversy, the Associated Press analyzed 20 cases where Persky had passed sentences since January 2015 and found that Persky had followed the sentencing recommendation of the probation department every time.[28]

On December 19, 2016, the California Commission on Judicial Performance cleared Persky of any judicial wrongdoing in the Turner sentence.[29][30]

Although he did not face any opposition in an election held five days after the sentencing, Persky lost his seat in a June 5, 2018, recall election. Online petitions calling for Persky to be removed following his lenient sentencing in the Turner case attracted over a million signatures by June 10, 2016.[31] Professor Michele Dauber, a sociologist at the Stanford Law School and longtime advocate on campus sexual assault,[32] who is also a family friend of the victim Chanel Miller, led the Committee to Recall Judge Persky. The Committee planned to collect signatures in Santa Clara County to force a November 2017 recall vote.[33] The demands received support from Representative Ted Poe (R-Texas), who took to the floor of the United States House of Representatives to condemn Turner's sentence as too lenient and to call for Persky's removal.[34]

Santa Clara County district attorney Jeff Rosen said "Judicial independence is a critical part of the U.S. justice system. The immense power that comes with judicial independence also comes with accountability to the people we serve."[35] Danny Cevallos stated that judges enjoy a modicum of independence from public pressure, and "there are no apparent grounds for impeachment or allegations of judicial misconduct, based on this sentence alone." Cevallos said that the recall movement "raises the question: is removing judges good for the spirit of the judiciary system, especially when the judge's sole transgression is a legal sentence" where he correctly applied the law.[36][37] The Santa Clara County Bar Association released a statement saying that removing Persky would be a "threat to judicial independence" and weighs just one of his 13 years of decisions too heavily, saying they see "no credible assertions that in issuing the sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith."[38] Similarly, other sitting judges (both state and federal) and legal commentators defended Persky's decision, noted that the sentence might, in their opinion, be disproportionate due to the lifelong consequences of a criminal conviction and sex offender registration, and called on the bar to protect the independence of the judiciary.[39][40][41]

In June 2016, at least ten prospective jurors refused to serve in a misdemeanor trial for possession of stolen property where Persky was presiding, citing the judge's sentencing of Turner as a reason.[42] The following week, Rosen filed a peremptory motion for recusal in a case where Persky was to preside over the criminal trial of a male surgical nurse charged with sexual battery for allegedly touching the genitals and breasts of a female patient under sedation. Rosen called his move to have the judge removed from the case, "a rare and carefully considered step for our office."[42]

As a result of the backlash in the wake of his sentencing of Turner, Persky asked not to hear any more criminal cases, and was reassigned to the Civil Division of the California Court system.[43]

In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza College baseball team, who were accused by the minor plaintiff, "Jane Doe", of gang-raping her while she was unconscious until a passerby intervened. During the trial, Persky decided that the jury should be allowed to view photographs of the plaintiff taken at a party she attended approximately a year after the alleged gang rape, as per the defense's claim that this evidence contradicted the plaintiff's claims of suffering from post-traumatic stress disorder.[44] The jury found the defendants not liable.[45]

Following Turner's sentencing in 2016, the plaintiff's attorneys in the De Anza case criticized Persky for allowing the photos into evidence. Attorneys for Doe said the photographs were not the only evidence that Persky unfairly permitted. Four of the baseball players had invoked Fifth Amendment rights not to self-incriminate during the discovery phase of the litigation. According to a lawyer for Doe, that was a critical juncture: it prevented the plaintiff's legal team from obtaining evidence that could have helped them pursue their case. The original judge in the case ruled in 2010 that the defendants could refuse to testify, but that would also mean that they would be prohibited from subsequently testifying in the case. That ruling was, however, overturned by Persky after he took over the trial in 2011, a move that Doe's attorneys say undermined her case.[44]