The Few Standing For Justice Against The Outrage Mob

New York Senator Kirsten Gillibrand loved the support for recalling Judge Aaron Persky, the Voldemort of Social Justice who spared Brock Allen Turner the “severe impact” of prison.

This is incredible: In California, the activists behind @RecallPersky gathered 100,000 signatures to recall the judge who sentenced Brock Turner to just six months in jail after he was convicted of sexually assaulting an unconscious woman outside a frat party.

Shon Hopwood called bullshit on Gillibrand’s virtue signaling and endorsement of the “Recall Persky” mob.

Yes, pitchfork justice for judges who impose one sentence shorter than the small segment of the public thinks. The @RecallPersky effort will only lead to more punitiveness, which will disproportionately fall on minorities and the poor. Bravo!

It wasn’t just Shon ready to stand against the tide of those calling for Judge Persky’s head. Ninety one law professors did something few in academia are willing to do: take a principled stand and argue for the law.

We the undersigned are part of a broad diversity of law professors from California universities…[writing] in strong opposition to the campaign to recall Judge Aaron Persky of the Santa Clara County Superior Court…[This] recall campaign…threatens the fundamental principles of judicial independence and fairness that we all embed in the education of our students.

“Wait,” you may ask, “the recall mechanism is part of the law. It’s something California has on the books. Why is this such a threat to judicial independence and fairness?” Settle in for some “lawsplaining.

The mechanism of recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms. None of these criteria applies to Judge Persky. We appreciate that some people (indeed including some of the signers of this letter) might have chosen a different result, but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional, a probation officer) —not on public outcry about a controversial case. (emphasis mine)

The ninety-one signatories agree on a key principle: mob opinion has no place on judicial independence and integrity. While openly admitting they might have ruled differently, each signer of the statement against Judge Persky’s recall stands firm in their opinion a judge must be allowed to make the rulings, no matter how unpopular. At the end of the day, it’s the person in the black robe who decides a defendant’s fate, social media be damned.

If close to a hundred academics can’t persuade those calling for Judge Persky’s head, perhaps the Santa Clara County Bar Association’s view holds stronger weight. They condemned the efforts to recall Judge Persky back in June of 2016.

 Judges have a duty to apply the law to the facts and evidence before them, regardless of public opinion or political pressure.  In that role, judges provide an important check against other political forces.  If judges had to fear direct, personal repercussions as a result of their decisions in individual cases, the rule of law would suffer. 

Those still calling for Persky’s neck might be keen to find out California’s Commission on Judicial Performance, the body tasked with handling problematic judges, fielded thousands of complaints over Brock Turner’s sentence and still found Judge Persky clear of any wrongdoing.

It is not the role of the commission to discipline judges for judicial decisions unless bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty is established by clear and convincing evidence…The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline. (emphasis mine)

A triumvirate of those versed in the law examined the Brock Turner verdict, concluded it was proper, and that Judge Persky’s only offense was showing maybe a little more empathy than most would’ve preferred. Why take the time now to stare the mob led by Michelle Dauber in the eye and proclaim “enough?”

Because as much as Dauber wants to believe otherwise, the recall isn’t just about Brock Turner and will affect far more defendants than the Stanford Swimmer.

In particular, lawyers who represent indigent defendants in our system rightly view the recall as a danger to, not promotion of, progressive values. This is because, historically and empirically, recall actions push judges towards sharply ratcheting up sentences, especially against the poor and people of color, out of fear of media campaigns run by well-funded interest groups.

In other words, should the Recall Persky campaign succeed, other jurists will take notice and shaft the less privileged accused of crimes out of fear they’ll be next. Better to issue harsher sentences than find your name smeared across the internet.

This is a pivotal moment, when the few who stand for what the law should be stare the mob of social justice in the eye and refuse to blink. Though some may find a defense of Judge Persky unpalatable, they realize if judicial independence is compromised here it sets a dangerous precedent hard to overturn.

As Ken White would say, this fight is for “the ones who never saw much mercy to begin with.”