Battle lines drawn over judge’s recall election

The yard signs are easy to spot. On the left, the head shot of a smiling middle-aged man. On the right, an ominous looking jailhouse mug shot. Judge Aaron Persky and Brock Turner, side by side with these words: Vote Yes on the recall.

“I felt like that was just not a right response for it. This was such an egregious crime,” said Matthew Kells, a 41-year-old San Jose resident reflecting on Perksy’s six-month jail sentence for Turner, the former Stanford University swimmer convicted of sexually penetrating an unconscious woman. It happened behind a dumpster outside a Stanford fraternity party on January 18, 2015. The victim became known as Emily Doe and has desired to keep her identity private.

“This was as bad as it gets. Having this guy in charge of these decisions just seems ludicrous,” said Kells, who has placed a yard sign in front of his home.

It’s a sentiment that has Persky on the verge of becoming the first California judge recalled in 86 years.

Behind by double digits in recent polls and recognizing the swell of opposition, Persky, soft-spoken by nature, is trying to make his voice heard in the final days before voters decide his fate on June 5.

“Do you really want a system where a judge can lose his or her job because of one lawful, yet unpopular ruling?” Persky said in an interview.

The public becomes the judge

Self-described as the most hated man on the internet, Perksy, 56, argues that his recall would have a chilling effect on the independence of judges everywhere.

“We must close the door on public opinion. We must do that to preserve the integrity of our criminal justice system, ” he said.

Persky’s troubles began just days after his decision in June 2016. Prosecutors asked for a six-year prison sentence, but Persky agreed with the recommendation from the county probation department, which noted that, “When compared to other crimes of similar nature” the Turner case “may be considered less serious due to [his] level of intoxication.” Critics immediately pounced and alleged Persky went soft because of his commonalities with the defendant. Like Turner, Persky was also a Stanford athlete. (He played lacrosse.)

Still, the case may have faded from the spotlight had it not been for the emotionally searing letter the victim read to Turner at sentencing. Within days, it went viral on the internet.

“You don’t know me, but you’ve been inside me, and that’s why we’re here today,” it began.

“You made me a victim. In newspapers my name was ‘unconscious intoxicated woman,’ 10 syllables, and nothing more than that. For a while, I believed that that was all I was.”

Critics of Persky, who has been on the bench since 2003, find it ironic that his judicial background also included work as a sex crimes prosecutor. In other words, he helped incarcerate people like Turner, 22, who is now living near Dayton, Ohio, and required to register annually for life as a sex offender. That’s a penalty so burdensome that if Turner were to have children someday, he wouldn’t be able to get near their school. Those who defend Persky often point to this fact. Though unable to speak about the case because it is under appeal, Persky has not indicated he would have done anything differently.

“Someday you may be on the right side of the law, and the wrong side of public opinion, and when you step into a courtroom before a judge, you will expect, you will request, you will demand a judge who will follow the rule of law,” he said.

Critics and an unlikely ally

The recall campaign has been led by Stanford Law professor Michelle Dauber, a family friend of the victim. Relentless in attacking the judge and the sentence, her group has raised $1.2 million to fund the effort.

“Voters are entitled to hold him [Persky] accountable for how he exercises his discretion,” she said in an interview.”

Though her effort began long before #MeToo became a hashtag and a movement, Dauber views the case as an anchor point.

“I think Emily Doe’s victim impact statement in many ways really serves as a manifesto for the #MeToo movement. I think that it predates it. In some ways it helped to launch it. I think that’s because she put into words the feelings that many victims of sexual assault have had for so many generations.”

Bolstering Dauber’s efforts, The Mercury News, the local newspaper here, endorsed the recall.

“Voters need to stand up and make a statement on behalf of women and men about the seriousness of sexual assault,” it said in an editorial.

“Persky’s sentence failed to do so to an extent that he never will again be able to serve as a respected, effective judge. He should be recalled.”

To be sure, both sides have distinguished names and organizations backing them.

Perksy, however, has found an unlikely ally in Santa Clara County District Attorney Jeff Rosen whose prosecutors pushed for a stronger sentence. Rosen could have stayed on the sidelines; instead he is actively speaking out, appearing at a news conference on Wednesday with Perksy.

“To recall a judge for one bad decision is something that would have dramatically negative effects throughout our criminal justice system, ” he said.

Persky also got a green light from the Commission on Judicial Performance, an independent state agency, which found no evidence of bias or misconduct with his rulings.

Dauber dismissed the report as “a one-sided, closed-door proceeding.”

The feelings on both sides of the recall are so strong that some are worried about the fallout of endorsing a particular side. Persky tells a story about how he asked one of his longtime friends to put up a yard sign to show support. When the man hedged, Persky said he realized how divisive the issue had become.

“He didn’t want to wonder, ‘What will my neighbors think? What will people think about me? What conclusions will they draw about my character if I put this lawn sign on my lawn? Will they still like me?'” Persky said.

Asked later whether the friend had eventually put up the sign, Perksy replied “not yet,” but that he was still hopeful he would. There isn’t much time left to ponder.