On paper, the three dozen pages laying out Santa Clara County’s recall election process cram in enough jargon, flow charts and appendices to make most eyes glaze over.
Throw in one of the most high-profile sexual assault cases in California history and the #MeToo juggernaut, though, and the campaign to recall Santa Clara County Superior Court Judge Aaron Persky has become a well-funded referendum on sexual misconduct in modern society.
Whether that’s fair—not to mention whether voters actually understand how the June 5 election to determine the fate of Persky and two potential female successors will work—is a much bigger question with implications for courts both inside and outside the county.
“It’s going to have a profound effect,” said Margaret Russell, a law professor at Santa Clara University and one of Persky’s supporters. “This is a campaign that is being talked about nationwide.”
Whether to recall Persky is just one of two questions voters will decide this spring. On the same ballot, Santa Clara County residents will be asked to pick a successor in the event that Persky is recalled—a vote that will count whether or not people support the recall.
If successful, it would mark the first recall of a California judge in 86 years.
The campaign to depose Persky is rooted in the backlash to the penalty the he imposed in the 2016 sexual assault trial of Brock Turner, a former Stanford swimmer convicted of three felony charges after two graduate students discovered Turner using his fingers to penetrate an unconscious woman near a dumpster after a frat party on campus. He faced up to a decade in state prison for the assault, but prosecutors asked for six years.
Instead, Persky went with a probation officer’s recommendation and sentenced then-20-year-old Turner to a six-month stay in county jail, three years of supervised release and lifetime registration as a sex offender.
The outrage was immediate, but it was too late to prevent an unopposed Persky from coasting to re-election five days after the sentencing hearing.
Still, everything changed for Persky. That summer, at least 10 prospective jurors refused to take part in a misdemeanor theft trial because of his ruling in the Turner case. A week later, Santa Clara County District Attorney Jeff Rosen, in what he called “a rare and carefully considered step” for his office, pulled the embattled judge off a sexual assault case. Finally, at Persky’s request, the courts reassigned him to the civil division.
Turner, for his part, walked out of San Jose’s Main Jail after serving half his time for good behavior. He spent the next year trying—and ultimately failing—to get a new trial, saying he was deprived of due process and that prosecutors shouldn’t have used the word “dumpster” to describe the trash bin at the scene of the crime.
The recall campaign has since devolved into a war of tweets, TV jabs, selectively edited podcast interviews, redacted emails and other forms of digital campaign warfare. In some instances, the vitriol has turned into physical intimidation, like when the pro-recall campaign in February received an envelope of white powder, or when armed protesters have periodically gathered outside Turner’s Ohio family home.
Through it all, Persky himself has issued just one public comment. Last summer, before the recall measure qualified for the ballot with more than 100,000 petition signatures in January, the judge submitted a statement to the county defending his record.
“As a prosecutor, I fought vigorously for victims,” Persky said in the statement. “When I became a judge, my role changed—I am required to consider both sides.”
At the forefront of the campaign to channel outrage about the Turner verdict into a successful recall is Stanford law professor Michele Landis Dauber, who now chairs the Committee to Recall Judge Persky. The committee has raked in more than $800,000 from Silicon Valley tech executives, women’s rights advocates and other donors in both the Bay Area and big cities like New York and Boston, Dauber said.
Among those to endorse the recall campaign are national figures like Anita Hill and U.S. Sen. Kirsten Gillibrand of New York. Adding to the momentum, Dauber said, was a letter from the victim in the Turner case that went viral just months before the #MeToo movement exploded following allegations of rampant rape and sexual assault in the entertainment industry.
“After an earthquake, you can look back and see those tremors,” Dauber said. “I think the victim statement in that case was one of those tremors.”
The parallel to broader backlash against sexual assault doesn’t square, however, for some critics of the recall effort, who contend that kicking Persky off the bench for unpopular sentences would amount to judicial intimidation and represents an existential threat to independent courts.
“They’d rather have judges that respond to the mob,” said former Santa Clara County Superior Court Judge LaDoris Cordell, who retired from the bench in 2001 and is now one of Persky’s most vocal supporters.
As of the latest campaign filing deadline at the end of 2017, the anti-recall committee formally known as “Retain Judge Persky—No Recall, major funding by McManis Faulkner” had raised more than $450,000. More than $250,000 was attributed to the “fair market value of attorney time” and other in-kind contributions from San Jose litigation firm McManis Faulkner. The donor list is a who’s who of the local legal community and judiciary.
“The fact that judges are more or less aligned behind their colleague is a powerful incentive for lawyers,” Dauber said. “It’s not surprising, but it is disappointing. I think the message that is sending to women in particular is extremely tone-deaf.”
The furor over the future of the county’s judicial bench comes amid a wave of criminal justice changes positioned as ways to combat disparities in how poor people and people of color interact with cops and courts.
How exactly such efforts play out, though, can get complicated.
Take the six-point bail overhaul approved by the county Board of Supervisors in October, which moved to create a community bail fund and begin building new protections to keep low-income nonviolent offenders out of jail.
While it is always difficult to isolate which individuals definitively benefit from broad-based changes, among those who in February did see a steep bail reduction were San Jose twin brothers Clifford and Clinton Pappadakis. The former coaches at city schools were brought up on child pornography charges but released with zero bail payment, in lieu of the usual $25,000 bail for similar charges.
Now, Cordell says, the question is whether recalling Persky would encourage judges to dole out harsher sentences across the board, negating any sentencing or bail reforms that could help minority defendants in particular.
“The term Persky’d is now being used by judges,” Cordell said.
As in, if a judge approves a potentially controversial plea deal or shows what could be perceived as leniency toward any type of defendant, that judge, too, could be subject to recall. Recall supporters argue that such political calculus is already part of the drill in a system where judges are elected by the public, but Cordell said the precedent would erode insulation judges are historically granted compared with other elected officials such as mayors or city council members.
“If judges fear getting Persky’d, we are already losing our independent judiciary,” Cordell said. “That’s exactly what this recall portends.”
One complicating factor—as with many of California’s most controversial political issues, from housing to drug policy—is that both sides see themselves as progressive.
Dauber contends that the justice system is not “zero-sum,” and that mass incarceration can be overhauled while also increasing penalties for sex offenders.
Though Cordell told CBS News at the time of the Turner verdict that sentencing language deferential to the defendant was “basically code for white privilege,” she said the recall goes too far and that campaigners have distorted Persky’s record.
“Especially to women who think this is about #MeToo and white privilege; it’s not,” Cordell said. “It has been co-opted.”
The Succession Question
While the recall is contentious, whether Persky should be removed is just one of two related ballot questions voters will weigh in June. The other: who should succeed him?
“A lot of people I’ve talked to are like, ‘Oh, if he gets recalled, then you’re running?” said Superior Court judge successor candidate Angela Storey, a civil attorney with San Jose private practice Storey & Storey.
“No,” Storey said. “You remember Gray Davis?”
Storey was referring to the gubernatorial recall of Davis that simultaneously resulted in Arnold Schwarzenegger’s being elected governor of California in 2003. That may be most voters’ most recent reference point, but the state has seen three other judicial recalls.
Whether the election process will be clear to voters this time around is a top concern for the two successor candidates who filed to run ahead of an initial March 2 deadline. Santa Clara County Assistant District Attorney Cindy Hendrickson was the first candidate to enter the race to succeed Persky last year, and Storey waded into the contest in February.
The most important point, both Hendrickson and Storey agree, is that whether a given voter supports the recall of Persky, their vote for a potential successor will still count if he’s ousted. In that case, the successor candidate with more votes would then take the bench seat.
“It’s all going to be on the same ballot,” Hendrickson explained. “Whether you vote for or against the recall, or whether you leave it blank, the vote for the successor still counts.”
Though Storey opposes the recall, she said her dual experience prosecuting and defending clients lends her the perspective to remain neutral as a judge. Hendrickson, meanwhile, supports the recall and touts her experience in both litigation and prosecution as qualifications that spurred her to run in a contentious environment.
“It was going to be politically fraught,” Hendrickson said. “One thing that occurred to me is that a lot of really highly qualified people are going to sit this out.”
She adds that her upbringing in an unusually diverse Virginia family with 11 children, five of them adopted, allows her to “see the world through different eyes.” Storey, meanwhile, was born and raised in Sunnyvale and said she first set her sights on becoming an attorney at age 8.
Compared with the six-figure campaign tabs quickly piling up for the pro- and anti-Persky campaign committees, spending on the succession contest is extremely modest. Hendrickson’s campaign in January disclosed just shy of $7,400 in contributions. Though Storey has not yet filed a formal campaign report, an online fundraising page on the site Crowdpac showed $3,415 contributed toward a $20,000 goal as of March 20.
One of the biggest ironies in the judicial recall is that while judges themselves usually don’t say much of anything in public, the campaigns for and against Persky have gotten extremely vocal.
Both campaigns are quick to offer up reams of tweets, e-mails and speculation about the personal motivations of opponents—as long as it’s not connected back to them.
“I’m getting pummeled on social media,” Cordell said.
“There has been a shift,” Dauber agreed, from debate about the legal merits of the Turner case to attacks on the victim or other campaign personalities, like her.
In campaigning for the recall, Dauber, who received the envelope full of white powder that temporarily shut down part of the Stanford campus last month, contends that the dozens of lawyers, judges and law professors backing Persky come off as “tone-deaf” in the midst of #MeToo. The decision to hire Arizona political consultant Brian Seitchik, former state campaign director for Donald Trump, makes it worse, she said.
“They have engaged in some of the most rank victim-blaming,” Dauber said. “To be linking arms with Aaron Persky, who has hired a Trump operative and is seen by millions of women as a symbol of rape culture, is a terrible mistake for the legal profession.”
In supporting Persky, Cordell takes issue with Dauber herself. She alleges that the professor has crafted “a false narrative” advanced by the media. The use of the word “rape” in the Turner case, as opposed to charges brought for “sexual assault,” is one example, she said.
“The person who’s got this thing going is not a lawyer,” Cordell said. “She teaches at the law school, barely.”
While Dauber has not completed a bar exam to work as a practicing attorney, Northwestern University confirmed that she earned a law degree in 1998 before entering academia. Since joining the Stanford faculty in 2001, she has penned a book on social welfare, received numerous research grants and now teaches three courses.
Among the most fraught (if more legally complex) campaign issues is whether Persky’s alleged bias has been systematic enough to justify a recall, although there’s no legal requirement that it should be. The pro-recall camp led by Dauber has surfaced five other cases of alleged bias in cases of violence against women with male defendants, which the pro-Persky campaign counters with an extensive set of opposing talking points.
Persky’s lawyers—Elizabeth Pipkin and Christine Peek, of McManis Faulkner—presented those talking points before an appeals court on Tuesday in a last-ditch effort to block the recall bid. If the three-judge panel rules in his favor in a hearing set for April 3, that would force the recall campaign to refile in the and tack on $5 million in election costs.
With just over three months to go until election day, the question is how deeply into the weeds voters will dig, and who might be left to pick up the pieces if they do decide to depose Persky.
“It’s awkward,” Storey said. “If the recall succeeds, whether it’s Cindy or I or anybody else, there will probably be an adjustment period.”
Cordell concedes that it will likely be an “uphill battle” for Persky to keep his seat. If he does, he’ll have the valley’s tightly knit legal community to thank for closing ranks and saving his career.
Persky’s defenders want the judiciary to be free to make unpopular decisions for which they could otherwise face public retribution. To insulate themselves from the whims of the citizenry, however, judges must rely on the generosity of professional colleagues who plead cases before them. Independence gets reduced to a choice judges must make about which organized interests they prefer to be aligned with.
And that might be the greatest irony in a campaign where judicial “independence” has become the central refrain.