Setting the record straight.
This webpage was prepared by Ellen Kreitzberg, Professor of Law and Director of the Center for Social Justice at Santa Clara University. Ellen is a feminist, a social justice advocate and criminal justice reformer. Professor Kreitzberg is a co-founder of NoRecall and has been trying to correct the false and misleading information presented by the recall campaign.
The recall campaign makes patently false and misleading claims to justify the campaign to recall Judge Persky. These claims have gone unchallenged and uncorrected for almost two years. It’s time to FACT-CHECK these claims and set the record straight.
Before we go further, let’s be clear. Rape, sexual assault, domestic violence, and similar offenses are wrong, illegal, and violators should be punished. We condemn these acts. People who commit these offenses should be held accountable. We do not excuse or defend the individuals charged, convicted, or sentenced in these crimes. We do, however, dispute the validity of the factual and legal arguments being used by the opposing campaign in effort to recall this judge.
Many people, including many No Recall Supporters, believe that the sentence imposed in the Brock Turner case was too lenient. Nevertheless, both sides agree the sentence was lawful. The judge followed and applied the law and the recommendation of the probation officer in her report. You can believe that the sentence was too lenient and still oppose the recall.
The recall campaign is publishing inaccurate information as part of its effort to recall Judge Persky – we counter these assertions below. The recall claims are false and should be rejected.
Cases used by the Recall Campaign:
The recall claims that five criminal cases show that Judge Persky is biased in favor of men who are white, privileged, and/or male athletes. This claim is FALSE.
In the five cases identified by the recall none of the defendants is a “white, privileged, male athlete.” Mr. Keenan is African American and played football at a local community college. Mr. Chain, who is white, is not an athlete. The other three defendants did not play college sports.
THE CASE OF RAOUL RAMIREZ:
The recall claims that Raoul Ramirez, a Latino, was unfairly sentenced to three years in prison for a case that is “similar to” the Turner case. This claim is FALSE.
Raoul Ramirez pled guilty to a much more serious crime that required a three-year mandatory minimum sentence. However, Mr. Ramirez pled guilty before a different judge – not Judge Persky. Judge Persky also did not sentence Mr. Ramirez. In fact, Mr. Ramirez was never sentenced because he fled the country. For two years, the recall campaign has been publicizing false facts about the Ramirez case.
THE CASE OF IKAIKA GUNDERSON:
The recall claims that Mr. Gunderson was a privileged college athlete whose sentence was determined by his football schedule. This claim is FALSE.
The District Attorney agreed that Ikaika Gunderson, of Pacific Island descent, should go to Hawaii where he could be near his grandmother, could enroll in college and would be far away from the victim. Although he was on a community college team previously, he was not playing football at the time of these charges. Gunderson was not recruited to play football in Hawaii, he was not a member of the Hawaii team and never did play in Hawaii. When he appeared in court in March 2018, the court found he had successfully completed probation and congratulated him on turning his life around. He was allowed to return to Washington State where his parents live.
THE CASE OF KENNAN SMITH:
The recall claims that Kennan Smith was a privileged athlete whose sentence was designed to accommodate his football schedule. This claim is FALSE.
Kennan Smith is an African-American who played football at a local junior college at the time of his arrest. The probation officer, Judge Persky and Judge Northway, worked together to fashion a sentence that allowed Mr. Smith to stay in school, while trying to work full time and attend football practice. Smith hoped to transfer to a four-year college. Smith’s football coach attended court hearings to provide support and guidance and to help Smith stay on the right path. Both judges and the probation office were all trying to avoid the “school to prison” pipeline that results in so many men of color to get lost in prison. The case is now closed and Mr. Smith has not been re-arrested.
THE CASE OF ROBERT CHAIN:
The recall claims Mr. Chain’s sentence to “time already served” for possession of child pornography (images on his computer) shows bias in favor of this white, privileged defendant. This claim is FALSE.
Mr. Chain is white but is neither an athlete nor a person of privilege. Mr. Chain pled guilty to the charges brought by the district attorney. As part of the “open plea agreement”, there were no promises made as to the possible sentence. However, the district attorney did not object to a sentence to “time served” in jail. (4 days). The sentence was consistent with the recommendation of the probation report that detailed Mr. Chain’s immediate and complete assumption of responsibility and the significant steps he took upon arrest to get help and treatment. The report also recognized that Mr. Chain, a plumber, had already lost his house, his family and his job.
The recall claims that Judge Persky promised Mr. Chain that he would reduce his charge from a felony to a misdemeanor. This claim is FALSE.
Judge Persky denied Mr. Chain’s lawyer request to reduce the charge from a felony to a misdemeanor. No promises were made about what might happen in the future. Mr. Chain’s charge was never reduced.
THE CASE OF MING HSUAN CHIANG:
The recall claims that Mr. Chiang’s case fits a pattern of bias and Judge Persky sentenced Mr. Chiang without a probation report.
Mr. Chiang is Asian – he is neither white nor an athlete. He pled guilty to a domestic violence charge. The agreement, as presented to the judge, required Mr. Chiang to serve his jail time on weekends in order to keep his job and to pay restitution to the victim. The probation report included about 40 pages of material that focused on the issue of restitution including medical reports and photos.
THE CASE OF DEANZA ATHLETES:
The recall claims that Judge Persky presided over a trial that allowed photographs into evidence that embarrassed and shamed the victim of a sexual assault.
This claim is misleading – this was a civil trial against De Anza athletes who were never criminally charged. The defense requested permission to introduce photographs that contradicted the plaintiff’s testimony and were relevant to the question of damages. The photographs were posted on the plaintiff’s own Facebook and/or MySpace page. No court has reversed or critiqued the admission of this evidence.
Prior to the civil trial, both the district attorney and the attorney general declined to bring criminal charges because there was not enough evidence to determine who was responsible for the assault of the victim. Judge Persky was not involved in these decisions.
The truths of the Vote No Recall of Judge Persky campaign:
We who oppose the recall deeply believe that neither popular opinion nor politics should interfere with the workings of an independent judiciary. The No Recall campaign is led by women who, for decades have been outspoken supporters for women who are survivors of sexual assault, or victims of abuse or harassment. We are also leaders in social and racial justice reforms and outspoken advocates for the rights of women.
Contrary to the claim of the recall campaign, opposing the recall does NOT mean that you support or defend “rape-culture.”
The California Commission on Judicial Performance, in response to public complaints about the sentence in the Turner case, reviewed Judge Persky’s record. They found no evidence of bias or misconduct overall or in the specific cases cited by the recall campaign.
Jeff Rosen, the Santa Clara County District Attorney who oversees all of the prosecutions that are brought in Santa Clara County, opposes the recall of Judge Persky. He states that he never received one phone call, one letter, one e-mail or one complaint about Judge Persky’s conduct or sentencing in any case from any victim, witness, assistant district attorney or court person.
The claim that Judge Persky’s sentences show a pattern of bias is FALSE.
The Commission on Judicial Performance is the independent state agency responsible for investigating complaints of judicial misconduct and disciplining judges. The Commission is composed of eleven members, only five of whom lawyers or judges – the majority are non-lawyers. The Commission investigates judges who are alleged to have engaged in misconduct and imposes appropriate discipline including admonishments, censure and even removal from office.
The claim by the recall campaign that the Commission on Judicial Performance is merely a group of judges who protect each other is FALSE.
Judge Persky presided over more than 2,000 criminal cases during his 14 years on the bench. After months spent reviewing the court files, the recall campaign has identified only five criminal cases to support their claim that there is a pattern of bias in Judge Persky’s rulings. This is only 0.25% or one-quarter of one percent of Judge Persky’s cases. This tiny sample is not a pattern nor do the cases show bias - in every case cited by the recall campaign, Judge Persky followed the law and generally accepted the recommendation of the probation report.
The claim by the recall that the five cases cite by the recall show a pattern of bias is FALSE.
Four of the five cases were resolved by plea bargain meaning that the length of the sentence was agreed to by district and the defendant before the defendant entered a plea. The judge’s role is to accept the agreement and impose a sentence. In one case (Chain), the judge determined the sentence; however, in that case, the district attorney specifically agreed to the sentence of “time served."
The claim by the recall that Judge Persky favored white, privileged athletes is FALSE.
Of the five criminal cases identified by the recall campaign, only one defendant was an athlete and he is African American (Mr. Smith), and only one defendant was White and he was not an athlete (Mr. Chain).
The claim that Judge Persky favored white, privileged athletes is FALSE.
Molly O’Neal, the Santa Clara County Public Defender, opposes the recall of Judge Persky. Her office represents clients who are poor, often persons of color, who have no privilege. Part of her job is to ensure that the clients represented by her office are treated fairly.
Molly O’Neal states that she has never had a single complaint from a lawyer, client, family members or court staff about Judge Persky’s treatment of clients of her office. O’Neal states that Judge Persky is a thoughtful judge who follows the law, considers all of the facts and circumstances in a case, and imposes a fair sentence.
The claim that Judge Persky favored white, privileged athletes is FALSE.
The recall campaign has presented NO evidence of how other judges in the county rule in similar cases. Immediately following the sentencing of Brock Turner, the recall campaign targeted Judge Persky seeking to review only his cases. They have put forward no evidence that Judge Persky imposes sentences that are significantly different from other judges in the county.
The claim that Judge Persky is an outlier compared to other judges in the county in the sentences that he imposed is FALSE.
The recall campaign chose not to seek information on the sentences imposed by other judges in Santa Clara County. Records released pursuant to the California Public Records Act, reveal that the recall campaign made numerous, continued requests for extensive information about Judge Persky and his cases. However, they made no inquiries about how other judge’s sentences. The recall campaign was not interested in comparing Judge Persky to other judges. They were interested in cherry-picking Judge Persky’s cases in an effort to remove him from the bench.
The recall campaign’s claim that they could not learn information about other judges is FALSE.
The California Constitution Center, a non-partisan academic research institution at Berkeley Law, released a report describing the law and the history of recall efforts in California. Contrary to repeated assertions by the recall campaign, that report made no conclusions about the recall and its possible effect on judicial independence. Erwin Chemerinsky, the Dean of Berkeley Law, and David Carillo, the Director of the California Constitution Center, have asked the the recall campaign several times to stop misconstruing the conclusions of their report to no avail.
The recall campaign’s claim the California Constitution Center report concludes that the recall will not affect judicial independence is FALSE.
The vast majority of judges in California first come to the bench through appointment. Nominees first must undergo an extensive examination by the Commission on Judicial Nominees Evaluation (JNE) of the State Bar of California which independently investigates and assesses the qualifications of candidates for judicial appointment by the Governor. The candidates must possess, among other qualities, impartiality, freedom from bias, integrity and commitment to equal justice. After a judge serves her first term, she sits for re-election at the end of each six-year term. This recall is an attempt to remove a sitting judge in the middle of his term and to replace him with a judicial nominee who has not been investigated or approved by the Commission.
The recall campaign’s claim that this recall is merely an “early election” and no different from a regular election is FALSE.
The recall campaign is consciously sending a political message to the judges that they better “watch out” – if they make an unpopular decision they could lose their jobs. Judges will sentence more harshly across the board – and those harsh sentences will fall disproportionately on the poor and people of color.
Santa Clara County Public Defender, Molly O’Neal is concerned that the recall will impact the clients in her office who are predominantly poor and persons of color. She has stated: “People fail to realize the ramifications of this recall effort…communities of color would be impacted negatively for decades.”
The claim that this recall will not result in harsher sentencing across the board is FALSE.