A correction to an earlier version of this article has been appended to the end.
SAN JOSE — Speaking extensively for the first time about the recall campaign against him, Santa Clara County Superior Court Judge Aaron Persky on Thursday said he supports the movement to improve how sexual assault victims are treated by the criminal justice system but that ousting him does not help that cause.
Citing judicial ethics and state rules, Persky mostly has been silent about the June 5th ballot measure to recall him — a campaign fueled by the infamous six-month jail sentence he gave in 2016 to former Stanford swimmer Brock Turner for sexually assaulting an intoxicated, unconscious woman outside a campus frat party.
In an interview with the Mercury News editorial board Thursday, Persky spoke at length against the recall campaign that, if successful, would make him only the fifth judge ever recalled in California and the first in 86 years.
“There is an underlying deep frustration among actual victims of sexual assault and women in general about the criminal justice system not taking sexual assault and domestic violence seriously. It’s a very genuine and important problem,” Persky said. “The passion is authentic, the end is justified, let’s increase sexual assault reporting. Let’s do criminal justice reform where it’s smart to do so.”
“But when you take this opportunity and you steer it in the direction that they’ve steered it, that’s where there’s a problem, and it’s not just a problem for me,” he added.
The campaign has asserted a pattern of sentencing leniency in favor of “high-status” defendants by Persky, which the judge and his supporters categorically reject as “cherry picking” cases. Both sides also have sparred over the results of a state judicial commission report that cleared Persky of any systemic bias, which recall supporters have said is riddled with factual errors.
Opponents of the recall, like former judge LaDoris Cordell, however, note that Persky’s sentence for Turner was lawful and followed a probation department recommendation. They also argue the recall would threaten judicial independence.
The leader of the recall effort, Stanford law professor Michele Dauber, said she has faith in the rest of the judges throughout the state to reasonably apply the law even after a recall.
“I have more faith in judicial integrity than that perspective suggests,” she said in a separate interview with the editorial board.
Persky stands by his sentencing decision — which was essentially the last of its kind after the state later passed a law requiring a mandatory prison sentence for the kinds of crimes Turner committed — and said judges cannot bend to political pressure.
“When the case came out and there’s the social media outrage, my personal opinion was that I can take the heat, I signed on to this job, I promised to essentially ignore public opinion,” he said. “That’s the promise every juror makes when they walk into the courtroom.”
Stanford law professor G. Marcus Cole, a supporter of the recall effort, said Thursday that “judicial independence is not sacrosanct” and noted the fact that the campaign’s ability to collect 95,000 signatures to put the recall on the ballot is proof that Persky’s decision-making is out of step.
“This is not an easy thing to do. So if a judge is really concerned that a sentencing decision is going to prove outrageous enough to trigger this, then that’s a concern they actually ought to have,” Cole said. “That’s what the California Constitution calls for. Their sentencing decisions, and their exercise of discretion, ought to reflect, as the Supreme Court of the United States has said, the local values of the community.”
Persky reiterated that a righteous movement has been hijacked to attack him as a target.
“Recall proponents have said something to the extent of, ‘We’re putting rape culture on trial.’ So now I am the face of rape culture. So you have to ask yourself, am I really the face of rape culture?”
Cordell said Persky is “being scapegoated. If they’re concerned about the system, then really, it’s about reform, and reform is serious, and it’s thoughtful. A recall is not a reform, and it’s not serious and thoughtful.”
Persky lamented that “the narrative that’s been out there in social media, in cable news, in print media, paints a certain picture, which I would argue is a caricature of my true self. Because I’m prevented ethically from discussing pending cases, that narrative has been allowed to flourish.”
He also cited his liberal and progressive upbringing, including his cross-country bike ride to raise money for African famine relief, and his steady pro bono work in eviction defense while at the progressive law firm Morrison Foerster.
“I was taught from a very young age to respect people and respect their dignity,” he said. “When the claim is made, and is so frustrating for me, here’s why Persky did ‘X,’ it’s hard for me to listen to and not be able to respond.”
San Jose lawyer Angela Storey and Assistant District Attorney Cindy Hendrickson are running to replace Persky if a recall is approved by voters. Whoever is elected would serve out the rest of Persky’s six-year term, which ends in 2022.
Persky said he will continue to fight the recall because of the broader systemic threat he believes it poses.
“If the recall is successful, what does it mean for individual litigants?” he said. “Is this judge going to be worried about what the Twitterverse thinks about what he or she does? The collateral damage here is to the individual future litigants and to public confidence in the judiciary.”
He added: “If we shake that confidence … that’s going to be the worst result. Don’t cry for me, don’t cry for the judges of Santa Clara County, but cry to some extent for the criminal justice system.”
Correction: April 20, 2018
Due to an editing error, an earlier version of this article contained an inaccurate reference to Aaron Persky’s pro bono work earlier in his career. It was in “eviction defense,” or representing clients facing eviction, not “defending evictions.”
