BY ALLISON LEVITSKY
Daily Post Staff Writer
In an interview with the Post yesterday (May 2), embattled Judge Aaron Persky said the recall threatens more than his career — it’s about protecting the “sanctuary” of the courtroom from public opinion.
Retired Palo Alto Judge LaDoris Cordell and Santa Clara University law professor Ellen Kreitzberg joined Persky in the interview because the rules of judicial ethics prevent him from discussing active cases over which he’s presided, including the Brock Turner case and six other cases that the recall campaign claims show his pattern of bias.
Kreitzberg said she hadn’t known Persky before the recall, but had gotten involved in the campaign because she was so appalled by the movement to unseat him.
Shortly after the recall campaign started, Persky said he received a note from retired Santa Clara County Superior Court Judge Gene Hyman that read, “No one cares about an independent judiciary until they need an independent judge.”
Supporters of the recall have said that a judge hasn’t been recalled in California since 1932 and that it didn’t send the judiciary into a tailspin of further recalls. But the effect of social media and special interests shouldn’t be underestimated, Cordell and Kreitzberg said.
“What we’re seeing in this election and in elections that are taking place in the last couple of years is, if you can put together some funding, you can engage in a campaign that can put out… completely false information,” Kreitzberg said. “It is out there in the universe and you can’t ever retrieve it. So I think it’s much more dangerous in these days about how quickly misinformation can spread, how pervasive it can become.”
Two years later, news articles continue to be published falsely referring to Turner as a rapist, when in fact, he was convicted of digital penetration with the attempt to commit rape, sexually assaulting an unconscious person and sexually assaulting an intoxicated person.
“The people who need an independent judge are everybody who walks into a courtroom,” Persky said. “The last thing that a litigant wants to worry about when they enter that courtroom and see that person up there in the black robe, which suggests complete neutrality, … ‘Is this judge even a little bit worried about what people think about what he or she is about to do? What social media thinks? How is it going to play on Facebook? How is it going to play on Twitter?”
Persky said judges shouldn’t be influenced by public opinion, but base their decisions on the law and the facts of the case.
“We make jurors fulfill their promise to tune out public opinion, and we as judges vow to keep that promise. And so my sort of take on the recall is, it just makes it harder for everyone to keep that promise.”
The impact of a recall
Cordell said recalling Persky would only serve to bring harsher criminal sentences, which would disproportionately impact people of color and the poor. Harsh sentences have been handed out for years, leading to mass incarceration especially of non-white defendants, without an effort to recall a judge.
The backlash to the six-month county jail sentence that Persky gave Turner has already resulted in a new state law establishing mandatory state prison sentences for sex assailants.
Turner’s sentence was within the law at the time of the 2016 sentencing and matched the recommendation of the female probation officer, Cordell pointed out. The Commission on Judicial Performance didn’t find any evidence of bias or misconduct by Persky.