Michael Aaron Persky (born 1962)
is an American attorney and former judge of the
Santa Clara County Superior Court
The Superior Court of California for and in the County of Santa Clara is the state trial court in and for Santa Clara County, California.
The Santa Clara Superior Court serves the public by providing equal justice for all in a fair, accessible, ...
from 2003 to 2018. He gained attention after his ruling in the case ''
People v. Turner'', in which he in June 2016 sentenced
Stanford University
Stanford University, officially Leland Stanford Junior University, is a private research university in Stanford, California. The campus occupies , among the largest in the United States, and enrolls over 17,000 students. Stanford is consider ...
student Brock Turner to 6 months in prison for the sexual assault and attempted rape of an unconscious 22-year-old woman,
Chanel Miller
Chanel Elisabeth Miller (born June 12, 1992) is an American writer and artist based in San Francisco, California and New York City. She was known anonymously after she was sexually assaulted on the campus of Stanford University in 2015 by Broc ...
,
which was a sentence recommended by the Santa Clara County Probation Department.
[ Despite allegations that race, gender, and class bias influenced his lenient sentencing of Turner (prosecutors had asked for six years), the California Commission on Judicial Performance found no wrongdoing in their investigation of the case. Nonetheless, Persky was recalled by voters on June 5, 2018, during the 2018 California primary elections.
Prior to ]joining Join may refer to:
* Join (law), to include additional counts or additional defendants on an indictment
*In mathematics:
** Join (mathematics), a least upper bound of sets orders in lattice theory
** Join (topology), an operation combining two topo ...
the bench, he practiced civil litigation for five years and was a prosecutor in Santa Clara County for six years. He also briefly coached girls' tennis at Lynbrook High School
Lynbrook High School (also referred to as Lynbrook or LHS) is a co-educational, public, four-year high school located in the West San Jose neighborhood of San Jose, California. It was founded in 1965 and graduated its first class in 1968.
Lynbr ...
in the fall of 2019.
Early life and education
Michael Aaron Persky was born in 1962. His father, Murray Persky, was a psychiatrist. His mother, Susan Elder, was a French teacher. His paternal grandparents owned a poultry business. He grew up in San Francisco, California
San Francisco (; Spanish for " Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the fourth most populous in California and 17th ...
.
Persky graduated Phi Beta Kappa
The Phi Beta Kappa Society () is the oldest academic honor society in the United States, and the most prestigious, due in part to its long history and academic selectivity. Phi Beta Kappa aims to promote and advocate excellence in the liberal a ...
from Stanford University
Stanford University, officially Leland Stanford Junior University, is a private research university in Stanford, California. The campus occupies , among the largest in the United States, and enrolls over 17,000 students. Stanford is consider ...
in 1984 with a bachelor's degree in international relations. He was the captain of the Stanford men's lacrosse team, a club sport
Club may refer to:
Arts, entertainment, and media
* ''Club'' (magazine)
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* "Club", by Kelsea Ballerini from the album ''kelsea''
Brands and enterprises
...
. He received a master's degree
A master's degree (from Latin ) is an academic degree awarded by universities or colleges upon completion of a course of study demonstrating mastery or a high-order overview of a specific field of study or area of professional practice. in international policy studies from Stanford in 1985.
He graduated from the UC Berkeley School of Law (Boalt Hall) in 1990 and was admitted to the bar in California in the same year. After college, he played for the Berkeley club lacrosse team, for which he was also a captain.
Legal career
Persky worked for the law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients (individuals or corporations) about their legal rights and responsibilities, and to r ...
of Morrison & Foerster
Morrison & Foerster LLP (also known as MoFo) is an American multinational law firm headquartered in San Francisco, California, with 17 offices located throughout the United States, Asia, and Europe. The firm has over 1,000 lawyers who advise cli ...
, 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 crime
A hate crime (also known as a bias-motivated crime or bias crime) is a prejudice-motivated crime which occurs when a perpetrator targets a victim because of their membership (or perceived membership) of a certain social group or racial demograph ...
s, and the State Bar of California
The State Bar of California is California's official attorney licensing agency. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, prescribing appropriate disciplin ...
's Wiley Manuel Pro Bono Award for his pro bono
( en, 'for the public good'), usually shortened to , is a Latin phrase for professional work undertaken voluntarily and without payment. In the United States, the term typically refers to provision of legal services by legal professionals for pe ...
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.
Judicial career
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
Laurie Smith (born June 21, 1952) was the 28th Sheriff of Santa Clara County, California, serving from 1998 until her early retirement in 2022 when under indictment for corruption. She was the first female County Sheriff in the history of the s ...
, U.S. Representatives Zoe Lofgren
Susan Ellen "Zoe" Lofgren ( ; born December 21, 1947) is an American lawyer and politician serving as a U.S. representative from California. A member of the Democratic Party, Lofgren is in her 13th term in Congress, having been first elected in 1 ...
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
Joseph Graham "Gray" Davis Jr. (born December 26, 1942) is an American attorney and former politician who served as the 37th governor of California from 1999 to 2003. In 2003, only a few months into his second term, Davis was recalled and remov ...
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.
Turner sentencing criticism
In 2016, Persky received international media attention and widespread criticism for sentencing
In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mult ...
Brock Allen Turner, a 20-year-old Stanford student convicted of three felony counts of sexual assault
Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which ...
, to six months in jail and three years of probation. The statutory maximum sentence was fourteen years; prosecutors sought a six-year term, while the Santa Clara County Probation Department, in its presentence investigation report
A presentence investigation report (PSIR) is a legal document that presents the findings of an investigation into the "legal and social background" of a person convicted of a crime before sentencing to determine if there are extenuating circumsta ...
, recommended a six-month term in county jail, and the defense asked for a four-month term in county jail. During sentencing, Persky said he considered the factors noted by the Probation Office and the "severe impact" of imprisonment on the defendant's life. Following the controversy, the Associated Press analyzed 20 cases where Persky had passed sentences since January 2015 and found that Persky had followed the sentencing recommendation of the probation department every time.
Some legal experts viewed the sentence in the case as unusually light. One juror in the Turner case wrote to Persky that his sentence was "ridiculously lenient" and made a "mockery" of the entire trial. Danny Cevallos, a Pennsylvania-based criminal defense lawyer and CNN
CNN (Cable News Network) is a multinational cable news channel headquartered in Atlanta, Georgia, U.S. Founded in 1980 by American media proprietor Ted Turner and Reese Schonfeld as a 24-hour cable news channel, and presently owned by the M ...
legal analyst, said that while the sentence was lenient, Turner's prior clean record made him a candidate for minimum sentencing.
On December 19, 2016, the California Commission on Judicial Performance cleared Persky of any judicial wrongdoing in the Turner sentence.
Repercussions to Persky
Although he did not face any opposition in an election held five days after the sentencing, Persky lost his seat in a June 5, 2018, recall election
A recall election (also called a recall referendum, recall petition or representative recall) is a procedure by which, in certain polities, voters can remove an elected official from office through a referendum before that official's term of offi ...
. Online petitions calling for Persky to be removed following his lenient sentencing in the Turner case attracted over a million signatures by June 10, 2016. Professor Michele Dauber
Michele Landis Dauber is the Frederick I. Richman Professor at the Stanford Law School, and a Professor of Sociology, by courtesy.
Early life
Dauber graduated from the University of Illinois at Chicago in 1993. She earned a JD from Northwestern ...
, a sociologist at the Stanford Law School and longtime advocate on campus sexual assault, who is also a family friend of the victim Chanel Miller
Chanel Elisabeth Miller (born June 12, 1992) is an American writer and artist based in San Francisco, California and New York City. She was known anonymously after she was sexually assaulted on the campus of Stanford University in 2015 by Broc ...
, led the committee to Recall Judge Persky. The Committee planned to collect signatures in Santa Clara County to force a November 2017 recall vote. The demands received support from Representative Ted Poe
Lloyd Theodore Poe (born September 10, 1948) is an American politician who represented Texas's 2nd congressional district in the United States House of Representatives from 2005 to 2019. Poe was the first Republican to represent the 2nd district. ...
( R-Texas), who took to the floor of the United States House of Representatives
The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the Lower house, lower chamber of the United States Congress, with the United States Senate, Senate being ...
to condemn Turner's sentence as too lenient and to call for Persky's removal.
Santa Clara County district attorney
In the United States, a district attorney (DA), county attorney, state's attorney, prosecuting attorney, commonwealth's attorney, or state attorney is the chief prosecutor and/or chief law enforcement officer representing a U.S. state in a l ...
Jeff Rosen said "Judicial independence is a critical part of the U.S. justice system. The immense power that comes with judicial independence also comes with accountability to the people we serve." Danny Cevallos stated that judges enjoy a modicum of independence from public pressure, and "there are no apparent grounds for impeachment or allegations of judicial misconduct, based on this sentence alone." Cevallos said that the recall movement "raises the question: is removing judges good for the spirit of the judiciary system, especially when the judge's sole transgression is a legal sentence" where he correctly applied the law. The Santa Clara County Bar Association released a statement saying that removing Persky would be a "threat to judicial independence" and weighs just one of his 13 years of decisions too heavily, saying they see "no credible assertions that in issuing the sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith
Bad faith (Latin: ''mala fides'') is a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings while acting as if influenced by another."of two hearts ... a sustained form of deception whic ...
." Similarly, other sitting judges (both state and federal) and legal commentators defended Persky's decision, noted that the sentence might, in their opinion, be disproportionate due to the lifelong consequences of a criminal conviction and sex offender registration, and called on the bar to protect the independence of the judiciary.
In June 2016, at least ten prospective jurors refused to serve in a misdemeanor trial for possession of stolen property where Persky was presiding, citing the judge's sentencing of Turner as a reason. The following week, Rosen filed a peremptory motion for recusal in a case where Persky was to preside over the criminal trial of a male surgical nurse charged with sexual battery for allegedly touching the genitals and breasts of a female patient under sedation. Rosen called his move to have the judge removed from the case, "a rare and carefully considered step for our office."
As a result of the backlash in the wake of his sentencing of Turner, Persky asked not to hear any more criminal cases, and was reassigned to the Civil Division of the California Court system.
Revisit of previous civil case of alleged rape
In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza College baseball team, who were accused by the minor plaintiff, "Jane Doe", of gang-raping her while she was unconscious until a passerby intervened. During the trial, Persky decided that the jury should be allowed to view photographs 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 of suffering from post-traumatic stress disorder
Post-traumatic stress disorder (PTSD) is a mental and behavioral disorder that can develop because of exposure to a traumatic event, such as sexual assault, warfare, traffic collisions, child abuse, domestic violence, or other threats on ...
. The jury found the defendants not liable.
Following Turner's sentencing in 2016, the plaintiff's attorneys in the De Anza case criticized Persky for allowing the photos into evidence. Attorneys for Doe said the photographs were not the only evidence that Persky unfairly permitted. Four of the baseball players had invoked Fifth Amendment rights not to self-incriminate during the discovery phase of the litigation. According to a lawyer for Doe, that was a critical juncture: it prevented the plaintiff's legal team from obtaining evidence that could have helped them pursue their case. The original judge in the case ruled in 2010 that the defendants could refuse to testify, but that would also mean that they would be prohibited from subsequently testifying in the case. That ruling was, however, overturned by Persky after he took over the trial in 2011, a move that Doe's attorneys say undermined her case.
2018 recall
An organization named "Recall Judge Persky" was established seeking to collect the 80,000 signatures of county voters required to hold a special recall election
A recall election (also called a recall referendum, recall petition or representative recall) is a procedure by which, in certain polities, voters can remove an elected official from office through a referendum before that official's term of offi ...
. The organizer of the petition was Stanford law professor Michele Dauber
Michele Landis Dauber is the Frederick I. Richman Professor at the Stanford Law School, and a Professor of Sociology, by courtesy.
Early life
Dauber graduated from the University of Illinois at Chicago in 1993. She earned a JD from Northwestern ...
.
The move to recall Persky was opposed by the Santa Clara County public defender, who said she was "alarmed by the hysteria" about the Turner sentence. Rosen, whose office prosecuted Turner and chose not to appeal the sentence, stated, "While I strongly disagree with the sentence that Judge Persky issued in the Brock Turner case, I do not believe he should be removed from his judgeship." At the same time, Rosen's office asked to have Persky removed as the judge in an upcoming sexual assault trial, saying that he had lost confidence that the judge could "fairly participate" in the case. Persky formed a committee to fight the recall effort, called "Retain Judge Persky — No Recall". Persky also initiated a proceeding to enjoin the circulation of the recall petition, which was denied, and Persky's appeal of that denial was also denied.
On January 24, 2018, the county Registrar of Voters confirmed that sufficient signatures had been verified to put the recall on a ballot. There were 94,539 signatures submitted, far more than necessary. The recall issue was on the state elections ballot on June 5, 2018.
At least 93 law professors from public and private universities, including 29 professors from Stanford, signed a letter backing Persky in the recall effort. In addition, the Santa Clara Bar Association issued a statement opposing the recall, saying that it was unaware “of any other complaints or allegations of impropriety against Judge Persky during his 13 years on the bench." He stood by his sentencing, saying he's been unfairly targeted as the "face of rape" by recall advocates, at the same time admitting, "There is an underlying deep frustration among actual victims of sexual assault and women in general about the criminal justice system not taking sexual assault and domestic violence seriously. It's a very genuine and important problem." "The passion is authentic, the end is justified, let's increase sexual assault reporting. Let's do criminal justice reform where it's smart to do so."[Judge in Stanford rape case faces recall over sentencing](_blank)
, '' Napa Valley Register'', Paul Elias (AP), May 5, 2018. Retrieved May 7, 2018. In a May 18, 2018, interview, Persky stated he had no regrets, and would rule exactly the same again on this case.
On June 5, Persky was recalled by Santa Clara County voters, who supported his removal by a margin of 61.51% to 38.49%. Persky became the first judge to be recalled in California in over 80 years. Two women, Cindy Hendrickson, a Santa Clara County assistant district attorney and Angela Storey, a civil attorney, appeared on the ballot to take Persky's position, should his recall succeed.[Judge Aaron Persky faces recall on Election Day over Brock Turner sentencing]
''ABC7 News
KGO-TV (channel 7) is a television station licensed to San Francisco, California, United States, serving as the San Francisco Bay Area's ABC network outlet. Owned and operated by the network's ABC Owned Television Stations division, KGO-TV main ...
'', David Louie, June 5, 2018. Retrieved June 6, 2018. Storey opposed the recall on principle. When the election results were being tabulated, and they indicated Persky would be recalled, Dauber stated, "The vote today...is a vote against impunity for high-status offenders of domestic violence and sexual violence." Hendrickson won the election to take Persky's place.
In October 2018, Persky was ordered to pay $161,825.68 to Dauber's recall campaign, which Persky had sued.
A 2022 study found that the recall of Persky subsequently led California judges to give more punitive sentencing.
References
{{DEFAULTSORT:Persky, Aaron
Living people
1962 births
American people of Jewish descent
People from San Francisco
People from Santa Clara County, California
American prosecutors
California state court judges
California lawyers
Stanford University alumni
UC Berkeley School of Law alumni
People associated with Morrison & Foerster