A Tale Of Two Judges, Part II

This post is the second in a two part series investigating the impact of public criticism of judges on an independent judiciary.

In this post we will look at the matter of California v Brock Turner, a criminal case in which a Stanford student was criminally charged with felony sexual assault. Mr. Turner was a student athlete at Stanford University. Santa Clara County Superior Court Judge, Aaron Persky, was the presiding judge in this matter.

While a jury hears evidence and renders a decision whether to convict or acquit in a criminal matter, it is the judge that will sentence a convicted criminal. In the sentencing phase of the trial, the judge will take many factors into consideration, i.e.; the criminal history of the defendant, character witness statements from people who have known the defendant and/or the victim, the effect that the crime had on the victim etc.

In March of this year, Mr. Turner was convicted on three counts of aggravated sexual assault. Such convictions in California have a potential sentence of 14 years in prison. In this case the prosecutor recommended 6 years in prison and probation officials recommended a moderate county jail sentence. Judge Persky sentenced Mr. Turner to 6 months in county jail. With good behavior he could be released in 3 months.

The public reaction to this sentencing was fierce and vocal. During the sentencing phase, the victim wrote a long letter which she read to the defendant in court. The letter detailed the agony she experienced and continues to experience as a result of the defendant’s actions. That letter was made public on social media after the sentence was handed down. It magnified the insult at what appears to be such a light sentence for such an egregious act and further fueled the public criticism over this judge’s ruling.

Social media was electrified with a profusion of posts vilifying the ruling. There were some, but not many, comments in support of the ruling. All of this condemnation of Judge Persky and his ruling took place after the conclusion of the trial and the handing down of the sentencing. The case is over unless it is appealed. Obviously the public criticism does not effect the outcome of this legal proceeding.

Now, several weeks after this ruling, repercussions have arisen in Judge Persky’s courtroom. Potential jurors have refused to sit on cases that have been assigned to his courtroom . Since the sentencing, according to the Mercury News, 10 prospective jurors have said they cannot sit on a jury over which he presides.

Picking a jury is a crucial piece of a trial. I have been trial attorney in Alameda County for over 30 years. I have tried many personal injury cases. During the voir dire portion of the trial, each attorney and the judge ask the potential jurors a series of questions to determine if they will be suitable to sit on that jury, hear the facts openly and be able to render a fair decision. We all know that sitting on a jury is not easy. To have the authority of the court undermined by the jury doubting the suitability of the judge does great harm to the entire court system and to have a potential juror question the judge’s competency is detrimental to the entire process.

Last week in an almost unheard of move, Santa Clara County District Attorney Jeff Rosen filed a peremptory challenge against Judge Persky, preventing him from presiding over a preliminary hearing in another sexual assault case. California law allows an attorney on either side of a case to unilaterally remove a judge if they believe the judge is unable to act fair and impartial in the matter.

A recall movement is now underway to remove Judge Persky from the bench.

Can the public outcry effect future rulings? Is that good or bad for our legal system? It is hard to foretell if the effect will increase public skepticism towards our judiciary process in general.

Let’s look at the two cases in question. The matter of Trump University garnered media attention when the defendant in this case publicly accused the sitting judge of being unfair because of a racial bias. In this case, the defendant was specifically trying to cause the judge to recuse himself from the proceedings so that a new judge who might rule more favorably toward the defendant would be assigned the case. In my opinion this is clearly a threat to the independence of the judiciary.

In the matter of California v Brock Turner, the criticism is primarily coming from the public at the termination of the trial and based on a perceived injustice in the light sentencing. I have mixed feeling about the uproar. I am sympathetic to the victim. On its face, its seems like the defendant got a slap on the wrist for a serious crime. It appears to me that he received a light sentence, based on his personal pedigree. I believe most criminal defendants, convicted of similar crimes would receive much harsher sentences, which makes it seem even more unfair. On the other hand, where would our judicial system be, if judges succumbed to the pressures of public criticism. While supporting the criticism of Judge Persky, it gives me concern.

As an Alameda personal injury lawyer, who frequently appears before judges, I value our rule of law and hope that our system of a fair and independent judiciary is not compromised.


D.A. Disqualifies Judge Persky from New Sex-Assault Case, Palo Alto On-Line, June 14, 2016

Jurors are Refusing to Serve the Judge Who Sentenced Brock Turner, Time, June 9, 2016

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