Judges under fire in California

On California judicial elections and the Judge Aaron Persky recall, it looks as if Berkeley law Dean Erwin Chemerinsky and I come down on the same side [Maria Dinzeo, Courthouse News]:

“I want judges deciding cases based on the law and the facts, not public opinion,” he said in an interview Thursday.

Chemerinsky, who has denounced the recall effort against Persky as misguided, again came to the judge’s defense and called the move to unseat him [over a sexual assault sentence perceived as lenient] “troubling.”…

Walter Olson, a senior fellow at the Cato Institute’s Robert Levy Center for Constitutional Studies, said situations like Persky’s can be an easy launchpad for agitators looking to whip up voters.

“It’s very common and easy for rulings that other judges of many different stripes and philosophies agree was the correct decision to get turned into something people can rail against, like saying they’re soft on crime or soft on sexual assault,” Olson said. “It’s easy to make judges look bad for doing what may be a good job.

…“We don’t want a judiciary that keeps an eye on popularity polls when deciding guilt or innocence.”

Four incumbent judges on San Francisco Superior Court are also being targeted at the polls for defeat because, although Democrats themselves, they were appointed by former Republican Gov. Arnold Schwarzenegger.


  • Now hold on just a moment. the author says that “ethics violations” are a legitimate reason, and yet differences of opinions are not. Fair enough. But I think that it is not hard to claim that a ludicrously low sentence for a despicable crime of violence IS an ethical violation in and of itself. That being not just lenient, but lenient to a degree that you are wildly out of touch with the norms of the community is just another way of saying “your legal judgement is not good in our opinion”.

  • It’s the equinox and we hear from Wintermute. Persky followed the law and the norms of his community. From a Guardian article comparing Turner’s case with similarly guilty Raul Ramirez, whom Persky sentenced to 3 years, we learn that former Stanford athlete
    Judge Persky had dozens of letters from Turner’s friends and family attesting to his character and outlining what it would mean to be separated from him if he went to prison.
    He did as his community asked.
    The challenges to Schwarzenegger appointees are just routine silliness.

  • Perhaps this is a dumb question, but how is a sentence of 6 months legally appropriate? The California statute for rape says it is “punishable by imprisonment in the state prison for three, six, or eight years.” Three years might be appropriate in this case, but how does that get reduced even further?

    • A reader points out (and I pass along) that Turner was neither brought to trial for, nor convicted of, rape.

      • OK, the word “rape” was tossed around a lot in the articles about this, so I assumed that was the law he was convicted of violating. But if he was instead convicted under 289(d) (which says “Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed…” which sounds like what he was accused of doing), it’s still three, six, or eight years, so my question stands.

  • So far as I remember the Persky recall has not come up previously here. For some sense of the debates it has stirred, Sentencing Law and Policy has had many links: http://sentencing.typepad.com/sentencing_law_and_policy/2016/06/considering-the-potential-negative-consequences-of-the-stanford-rape-sentencing-controversy-and-judg.html

  • My understanding is that Judge Persky followed the recommendation of probation officials in this case. Plus, Turner has felony and sex offender status on his record, which is probably far more burdensome than some extra jail time.