The current controversy over Judge Aaron Persky’s sentence of a Stanford University athlete to six months in jail and three years probation after a jury convicted him of three felony counts of sexual assault has sparked over a million online signatures supporting his removal from office. Stanford University Law Professor Michele Dauber is also organizing a formal recall petition to force Persky to face the voters.
Persky should have been voted out of office a long time ago though because of his role in a civil case, also involving the sexual assault of another unconscious woman. As Wikipedia explained:
In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza college baseball team, who were accused by the underage plaintiff of gang-raping her while she was unconscious until passersby intervened. During the trial, Persky decided that the jury should be allowed to view seven photos 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. The plaintiff’s attorney, who argued the photos were irrelevant, described this decision as prejudicial against her client. An ABC News 20/20 episode aired on June 5, 2009 on the case. The jury in this civil case found the defendants to be not liable for the charges against them.
I know a few things about evidence used in sexual assault cases. In a recent case I argued in a declaration that a woman’s attire made a particular accusation that a man groped her in a particular way physically impossible, while both were walking down the street at the time (and she would have tripped if he did what she claimed he’d done because her dress was down to her ankles and she said he reached up under the dress and grabbed her crotch and buttocks). This was in spite of the fact that my NOW Chapter (SFV/NELA) and I were the key proponents of AB 1926 (Scott Wildman, D-41st AD, 1998 Legislative Session) which banned the use of a woman’s attire by the defense to prove consent.
One thing I also know about is the election and regulation of Judges in California and why a political revolution–Bernie style–is needed to overhaul the system. First, let’s look at why and how Aaron Persky got in office and how he stayed there (again, from Wikipedia):
Persky worked for the law firm of Morrison & Foerster, practicing corporate civil litigation. While in private practice, he received the California Association of Human Relations Organizations’ Civil Rights Leadership Award for work on hate crimes, and the State Bar of California’s Wiley Manuel Pro Bono Award for his pro bono work for the poor.
In 1997, Persky joined the Santa Clara District Attorney’s Office. In this position, he prosecuted criminal offenses which included violent sex crimes and hate crimes. He served on the executive committee of the Support Network for Battered Women and the Santa Clara County Network for a Hate-Free Community.
By 2003, Persky was a deputy district attorney in the Santa Clara District Attorney’s Office and prosecuted juvenile offenders; he was also a member of the DA’s Juvenile Wards Team.
In 2002, Persky unsuccessfully ran for a seat on the Superior Court of California in Santa Clara County, losing to Ron Del Pozzo, who was also a deputy DA. Persky received 102,801 votes (47.9%), to Del Pozzo’s 111,679 votes (52.1%) for Seat 16 on the court. In his 2002 run, Persky was endorsed by the Santa Clara County Bar Association (and its Women Lawyers Committee) and by the San Jose Mercury News, while Del Pozzo received the endorsement of Sheriff Laurie Smith, U.S. Representatives Zoe Lofgren and Mike Honda, and the AFL-CIO. Both candidates ran a positive race.
Persky received an appointment to the court from California Governor Gray Davis the following year.
He is the former Chair of the Court’s Community Outreach Committee.
In June 2016, Persky was elected without opposition for another six-year term on the bench. The vast majority of Santa Clara County judges—25 in total— ran unopposed in 2016. He was 54 years old at the time. [Emphasis added]
My old friend, retired Deputy Public Defender Aram James, got into a public debate with Persky when Persky ran for Judge, with Persky taking a position against judicial candidate transparency: http://www.metroactive.com/papers/metro/10.17.02/public-eye-0242.html
Most California Judges, not just Santa Clara county judges, run unopposed. “Most” is actually a low figure. Challenges to sitting judges no matter how horrible they are, are almost non-existent. Why?
Judge Charles W. Stoll threw out a Family Leave Act case against Disney Imagineering brought by a member of my NOW Chapter. We pulled his Form 700 Statement of Economic Interests and found that his single largest investment was in Disney stock….like around $50,000.00 worth of it. Responding to my press release announcing my complaint to the Commission on Judicial Performance, Stoll told reporters that he didn’t know that state law required him to recuse himself — on the 23 out of 25 cases in the Glendale Branch that had conveniently been assigned to him, not one of which made it to trial — for any conflict of more than $1,500. My response to his claim was that when a judge claims “ignorance of the law” as an excuse, it “is not an excuse; it’s an indictment.” See http://articles.latimes.com/1996-06-04/news/mn-11608_1_improper-conduct
The result: Stoll was publicly reproved by the Commission, and later when I was sued in a case before him, he extended the deadline to allow the Plaintiff to serve me without any legitimate cause. I complained to the Commission that he should have recused himself because I had very publicly gotten him disciplined. The Commission refused to take any action.
Run against a judge and the retaliation will be even worse by the judge’s colleagues and the Commission will do nothing to protect you.
Filing Fees and Ballot Statement Fees
California filing fees to run for office are a percentage of a year’s salary for the office, so every time they raise their salaries they make it that much harder for working people and the poor to run for office. The current filing fee is $1,890.41 to run for judge and the way the rules are rigged, in order to hope that you can file for one of the several seats that might be vacant, you might have to pay filing fees for more than one seat just to play the game and get into the right race.
Candidate statements will cost Superior Court candidates tens of thousands (I think around $50,000) and you cannot even get those fees waived if you are indigent (from the LA County Candidate Handbook):
INDIGENT CANDIDATES – If a candidate alleges to be indigent and is unable to pay the advance fee for submitting a candidate statement, the candidate shall submit an Affidavit of Financial Worth to the local agency to be used in determining the candidate’s indigence eligibility. The affidavit shall be submitted by the candidate with their candidate statement by the specified deadline. The candidate shall certify under penalty of perjury the truth and correctness of the content of the affidavit. A determination shall be made whether or not the
candidate is indigent and the local agency will notify the candidate of its findings. If a determination is made that the candidate is indigent, the local agency shall print and mail
the statement without payment of the advance fee. The candidate will be billed the actual pro rata share of the cost following the election. If a determination is made that the
candidate is not indigent, the candidate shall withdraw the statement or pay the requisite fee within three days of notification, excluding Saturdays, Sundays and State holidays.
In Knoll v. Davidson (1974) 12 Cal. 3d 335 [116 Cal. Rptr. 97, 525 P.2d 1273] the California Supreme Court, writing in the wake of Lubin v. Panish (1974) 415 U.S. 709 [39 L.Ed.2d 702, 94 S.Ct. 1315], held that even indigent candidates could be forced to pay to have a statement included in the ballot pamphlet. Lubin, (I assisted with the legal research on the case with Attorney Marge Buckley) threw out California’s old filing fee law as facially unconstitutional for discriminating against people of modest means.
After years of other litigation and legislation, where we are now is that we wind up with 34 candidates for U.S. Senate on the ballot because they could afford or raise the filing fee of $3,480.00, even though the only justification the U.S. Supreme Court has ever held was a legitimate reason for a filing fee was to limit the size of the ballot to something reasonable. Some of those candidates were frivolous; some were arguably insane; in fact, some argue that the Republican candidate for President, Donald Trump, is nuts but he can pay any filing fee to get on the ballot with ease, while perfectly legitimate working class and indigent candidates are effectively kept off the ballot, because Proposition 14 and subsequent legislation abolished the previously reasonable requirements for signature in lieu of filing fees that applied to third party candidates.
Likewise, wealthy candidates for Judge and their wealthy supporters can get subsidized by having their statements in the ballot pamphlet. Sole practitioners and their working class clients can’t raise that kind of initial expense.
A Platform for Reform
- Abolish filing fees to run for Superior Court (and for that matter, for all public offices). There should be one rule for rich and poor alike to get on the ballot. You should simply not be able to buy your way on the ballot.
- Abolish all fees to have a candidate statement included in any ballot pamphlet for all offices. These statements are a service to the voters who can then intelligently select from what a candidate puts in writing to all voters on an equal opportunity basis.
- Require a Judge’s most recent Form 700 Statement of Economic Interests (redacted as to address information or simply listing their courthouse address) be posted at their courtroom door and/or in the court clerk’s office for public inspection, to avoid a Charlie Stoll having the audacity to throw every case against Disney out of court in its home district while owning thousands in Disney stock.
- Specify specific penalties for specific judicial misconduct by law, so the Charlie Stolls of the world cannot get off with a slap on the wrist for decisions that ruin people’s lives and then get re-elected without opposition or significant consequence.
An important alternative and informed viewpoint
My old and dear friend Aram James was a Santa Clara County Public Defender for just about forever. If there’s anybody who knows the County court system like the back of their hand, it’s Aram, and this is what Aram has to say about Persky and the cases he’s handled: http://www.siliconvalleydebug.org/articles/2016/07/28/brock-turners-probation
Getting back to Judge Persky, like most California Judge’s the guy’s financially well heeled. There are very few Judges that you could characterize as being working class or of even representing the interests of the working class on the bench. So take a look at Judge Persky’s Statement of Economic Interests: