The Fall of Judge Persky: A Cautionary Tale

Today, voters in Santa Clara County will vote to recall Judge Aaron Persky. I predict that he will be recalled despite his cautious efforts to rehabilitate convicted sex offender Brock Turner precisely because of his unwillingness to use California’s dangerously bloated prison system as a remedy for sexual assault, and because his ouster will be expedient for the political establishment of which he probably considers himself a part.

This tale has four key actors: Emily Doe, Brock Turner, Judge Persky, and Stanford professor Michele Dauber.

I. The People v. Brock Turner

On January 18, 2015, “Emily Doe” and her sister attended a party at the Kappa Alpha fraternity house on the Stanford University campus. Both the victim and her sister consumed hard alcohol before and during the party. Outside the fraternity house, Ms. Doe and her sister met a group of male students. One of these students was Brock Turner, a 19-year-old freshman admitted to Stanford on a swimming scholarship. Turner had made aggressive overtures to several women at the party, and attempted to kiss Ms. Doe’s sister while outside the frat house. Ms. Doe’s sister left the scene to help a friend of hers who had drank too much alcohol at the same party.

At approximately 1:00 a.m., two graduate students cycled past the Kappa Alpha house and saw Emily Doe lying unconscious and motionless behind a dumpster. They also spotted Turner thrusting his hips on top of her. The students – Peter Lars Jonsson and Carl-Fredrick Arendt – called for Turner to stop. Turner stopped and fled; Jonnson and Arendt gave chase and held Turner on the ground while other students found Emily Doe and called the police.

Emily Doe was found unconscious, her underwear removed and her dress pulled up to the waist. Police took her to Valley Medical Center, where she regained consciousness at approximately 4:00 a.m. Two nurses performed a forensic examination of the victim’s body, finding “penetrative trauma” to the victim’s genitals and abrasions and erythema on various places on her body. A woman’s blood was also found under Turner’s fingernails.

Judge Aaron Persky presided over Brock Turner’s trial in the Palo Alto branch of the Santa Clara County Superior Court. Turner’s trial began on March 14, 2016. On March 30, the jury unanimously found Turner guilty of assault with intent to commit rape and digital penetration of an unconscious person.

II. Turner’s Sentence Goes “Viral”

Prior to Turner’s sentencing, Santa Clara County’s Adult Probation Department prepared a sentencing memorandum for Judge Persky’s consideration – as it does in every felony case. As required by law, Deputy Probation Officer Monica Lassetre interviewed both Brock Turner and Emily Doe.

Turner’s statement to Probation revealed flashes of genuine remorse. He stated:

“Having imposed suffering on someone else and causing someone else pain – I mean, I can barely live with myself. I can’t even get out of bed in the morning. I think about it every second of every day. Her having to go through the justice system because of my actions just…it’s unforgivable.”

However, Turner also attempted to blame “campus drinking culture and the sexual promiscuity that goes along with that” for his actions rather than placing the responsibility upon himself not to sexually assault an unconscious person. Turner went on to say that if Judge Persky were to grant him probation supervision instead of a state prison sentence, he would comply with all the terms and conditions that would apply, including sex offender treatment and registering his address as required by law of all convicted sex offenders.

Emily Doe also gave a statement to probation on what she felt would be an appropriate sentence for Turner. In her statement, she stressed the pain of having to testify at Turner’s trial. “I still feel a lot of anger because of what he put me through at trial…He attacked my personal life in whatever way possible and in the end, it didn’t work.” However, the victim also expressed skepticism as to what good, if any, would come from sentencing Turner to prison:

“I don’t feel like I won anything…I want him to know it hurt me, but I don’t want his life to be over. I want him to be punished, but as a human, I just want him to get better. I don’t want him to feel like his life is over and I don’t want him to rot away in jail; he doesn’t need to be behind bars.”

Across California, judges routinely rely upon such sentencing memorandums and often adopt their recommendations in their entirety. At the conclusion of her report, Ms. Lassetre cited Turner’s lack of prior criminal record, strong family support, and low probability of re-offending as a legal basis to grant Turner 3 years of probation supervision and impose a moderate county jail term – in lieu of a longer period in state prison – as a condition of his probation.

However, very little about Turner’s actual sentencing hearing was “routine.” In stark contrast to her earlier statement to Ms. Lassetre, the victim impact statement that Emily Doe read in court was more than 7,000 words. Emily began by recounting the horrors of waking up in the hospital, covered in dirt and pine needles, after having lost any memory of the past few hours. She described the awful experience of having to learn the details of her own assault from news reports. Emily then blasted Turner for claiming, during his trial testimony, that he believed Emily to be a conscious, willing, consenting participant in her assault behind a dumpster.

Most of Emily’s ire, however, was focused upon Turner’s lack of contrition and having to go through the process of testifying at Turner’s trial. Emily Doe claimed that Turner’s attorney had “pummeled” her with “narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name.”

Although Turner’s trial had already gathered substantial attention from local news media by this point, Turner, Judge Persky, and Emily Doe attracted national attention when Buzzfeed published Emily Doe’s statement within hours of the sentencing hearing. The campaign to recall Judge Persky began almost immediately after Persky followed the probation department’s recommendation and sentenced Turner to 6 months in county jail as a condition of his 3 years of probation supervision. In the days that followed, Emily Doe’s statement was republished on countless websites and read aloud, in its entirety, on numerous news programs and by elected representatives.

III. The Role of Professor Michele Dauber

The effort to recall Judge Persky cannot be understood without accounting for the role of Professor Michele Dauber, the Chair of the Recall Persky campaign and its most prolific spokesperson. Ms. Dauber teaches at Stanford Law School, despite never having practiced law as an attorney (though she holds a doctorate in sociology). She and her husband, Ken Dauber, an engineer at Google, made their first foray into local politics in 2011. Mr. Dauber won a seat on the local school board by agitating for reforms in the wake of a rash of teen suicides; the couple founded a non-profit called We Can Do Better Palo Alto to push for these same reforms. An avid supporter of Hillary Clinton’s bid for the presidency, both she and Judge Persky attended the same Democratic Party fundraisers.

However, one of Professor Dauber’s chief preoccupations has been eroding the due process protections given to Stanford students accused of “sexual assault” in Title IX hearings. Professor Dauber has publicly leveled two main complaints. First, Professor Dauber believes that Stanford’s definition of “sexual assault” – an offense whose penalty is expulsion – is too narrow. Sexual assault, according to Professor Dauber, should include more than forcible penetration and penetration of an incapacitated person. Sex with an intoxicated person, sexual battery (non-consensual touching of the breasts or buttocks), and sex without affirmative consent would also fall under Professor Dauber’s definition of “assault” and would warrant expulsion. Second, Professor Dauber opposes requiring a unanimous vote among hearing officers to sustain findings of sexual assault. Professor Dauber has publicly described herself as a “family friend” of Emily Doe, Brock Turner’s victim. Her interest in the Brock Turner case blossomed into a signature gathering effort toward Judge Persky’s recall within weeks of Turner’s sentencing.

Throughout the recall campaign, Professor Dauber has taken it upon herself to act as Emily Doe’s public voice. Having previously relied on The Guardian and other news outlets to take her grievances with Stanford Title IX procedures beyond the Stanford administration, Ms. Dauber plied her media savvy to submit Emily Doe’s victim impact statement to Buzzfeed and other media outlets. Emily Doe’s statement, as previously mentioned, echos many of Professor Dauber’s grievances about having to submit claims of sexual assault to cross-examination. In her written statement to Glamour magazine – in response to being named their Woman of the Year, Emily Doe shared an almost verbatim affection for journalist Ashleigh Banfield as Professor Dauber expressed in her 2016 interview with Democracy Now. When Stanford chose to convert the site of Emily Doe’s attack into a “scenic spot” with a memorial plaque, Stanford proposed the following quotes from Emily Doe’s famous letter:

“I’m right here, I’m okay, everything’s okay, I’m right here.”

“You are beautiful, you are to be valued, respected, undeniably, every minute of every day, you are powerful and nobody can take that away from you.”

“On nights when you feel alone, I am with you. When people doubt you or dismiss you, I am with you. I fought every day for you. So never stop fighting, I believe you.”

Emily Doe’s “representatives,” including her lawyer, rejected these and proposed an alternative quote that a Stanford counselor feared would be triggering for sexual assault survivors. Professor Dauber demonstrated her familiarity with these discussions by confirming to media outlets that Emily Doe had decided to not allow any quote at all to be used. At nearly every turn, Professor Dauber has exerted ownership of Emily Doe’s words.

IV. Silicon Valley Democrats Exploit “Me Too”

The Recall Persky campaign has vigorously exploited the Me Too movement and channeled it toward Judge Persky’s recall. Me Too sprang from the revelations of movie mogul Harvey Weinstein’s decades’ worth of sexual harassment and assault of Hollywood actresses. These allegations lead to a host of others leveled at various public figures, including former NBC Today host Matt Lauer, former Minnesota senator Al Franken, comedian Louis C.K., actor Kevin Spacey, and former CBS This Morning host Charlie Rose. The hashtag #metoo was popularized by actress Alyssa Milano, and since then thousands of women have shared their stories of sexual harassment and assault on social media. However, no activist within the movement has highlighted the plights of the millions of women who work minimum wage jobs in hotels, restaurants, or retail outlets; several actors and actresses have toppled looming media figures with their stories, but little has been said or done by this movement in places where most women actually work.
In her 2016 interview with Democracy Now, Michele Dauber proudly declared that Emily Doe’s victim impact statement was a “harbinger” of the Me Too movement. Recall Persky rode this momentum to collect over $1,200,000 in donations; many of these donations have been made in amounts of $1000 by residents of the affluent alcoves of the San Francisco peninsula and Marin County.

The local and national Democratic Party leadership has seen Professor Dauber’s war chest and has lined up at the proverbial trough. Senator Kirstin Gillibrand of New York – considered by many to be a front-runner in the coming 2020 presidential primaries – has endorsed the Recall Persky campaign, along with more than four dozen national, state, and county level Democratic lawmakers. Silicon Valley’s labor aristocracy – SEIU Local 521 and the South Bay Labor Council – have also endorsed the campaign and have fully adopted the same tactics as the Recall Persky campaign in their own election mailers by smearing its disfavored candidates with sexual harassment allegations, rather than touting the importance of unions to working class well-being and contrasting the working class’ interests with those of right-wing candidates (as one might think a labor union would do).

V. An Uninspiring Opposition

Pre-election polls suggest that the recall campaign enjoys a tremendous lead going into election day.

A major reason for this has been the speed and skill with which the Recall Persky campaign has skewed and distorted Judge Persky’s record. The Recall Persky campaign has combed through the thousands of cases that Judge Persky has handled as a Superior Court judge, found 6 that could serve as fodder for campaign mailers and talking points, and distorted them to sound as though Judge Persky has routinely showed leniency in sexual assault cases, especially where the defendant is white or otherwise “privileged.” The opposition’s website debunks these claims in some detail, but the best example comes from an op-ed penned by Michael Vitiello of McGeorge School of Law and published in the Stanford Daily:

“According to recall supporters, People v. Ramirez involved a minority defendant, similar to Turner, but whom the judge sentenced to a three-year term of imprisonment. A part from many other factors that may have explained disparate treatment (not visible based on the sentence), Ramirez pled guilty of a crime that required a mandatory term of imprisonment; Turner’s crime did not require prison time. The other examples cited by the recall supporters also failed to support a claim of Judge Persky’s racial bias.”

Against the lies and distortions spread by the Recall Persky campaign, the opposition effort has never received as many microphones with enough time to refute them in the minds of most voters. To paraphrase an old cliché, lies travel halfway around the world before the truth finishes putting on its shoes.

However, the main reason for the recall’s (anticipated) success is this: the political establishment and its affluent, upper-middle class voter/donor base has demanded Judge Persky’s ouster. The recall’s opposition has not rallied a working class voting base to outweigh the recall’s supporters.

The opposition to Persky’s recall include Jeff Rosen, Santa Clara County’s elected district attorney, Molly O’Neal, the county’s appointed Public Defender, the Santa Clara County Bar Association, retired Judge LaDoris Cordell, and a host of attorneys and sitting/retired judges. Their chief argument against the recall resonates with all the platitudes one would find in a high school government textbook; an independent judiciary, one that upholds the rule of law and apply it to individuals regardless of public pressure, is necessary to our scheme of democratic governance. “Judicial discretion” is the banner most frequently waived against an “unprecedented attack.”

However, criminal defense lawyers, their clients, and their clients’ families have seen “judicial discretion” ruin lives and tear families apart. Before 2012, California’s Three Strikes law and later legal decisions gave judges “discretion” in deciding whether to dole out life sentences for felonies that were neither “serious” nor “violent.” California’s prison population swelled and increasingly skewed toward elderly inmates in need of major medical care as they aged. In 2006, the prisons’ healthcare system was placed under federal receivership as one inmate died per week, on average, for preventable medical reasons. “Judicial discretion,” historically, has been no friend to the minority and working class people on its receiving end.

Furthermore, the recall of Judge Persky is hardly “unprecedented.” In 1982, the voters approved Proposition 8, the so-called “Victim’s Bill of Rights,” which repealed any and all protections under the California Constitution against illegal searches and seizures and required judges to presume the defendant guilty for purpose of setting pretrial bail. In 1986, reactionary forces lead the campaign to oust California Supreme Court Justice Rose Bird during her judicial reelection bid in response to her commutation of too many death sentences. In 1994, California passed two versions of its Three Strikes law. The existing voting blocks in California have always voted to erode the rights of the accused, often in reaction to one sensational news story involving a photogenic victim. These laws almost always have a victim’s name attached to them and have wrought unintended havoc on poor, working class, and minority communities. Alternative voting blocs had to be energized among these marginalized groups, and the anti-recall campaign has done nothing to do this. Instead, both the recall campaign and the opposition hosted a single debate at an affluent Los Altos country club, in which a professor of high finance stepped in for Professor Dauber to debate Judge Cordell.

And so we are left with the ultimate question. A victim of sexual assault had her claims taken seriously and investigated by law enforcement. Brock Turner, the perpetrator, was brought to trial and found guilty by unanimous jury verdict. Although Brock Turner’s sentence was highly unpopular, it was not only legal, but recommended by Adult Probation after interviewing both Emily Doe and Brock Turner. Brock Turner will now live in perpetual infamy as a registered sex offender for the rest of his life. After the sentencing, the California legislature amended the Penal Code to stiffen the penalties for the felonies for which Turner was convicted.

How is this not a success story? The Democratic Party in Silicon Valley needed a scapegoat to energize the affluent, petit-bourgeois voter/donor base in light of its demoralizing 2016 loss of the presidency to David Duke’s favorite gameshow host. As always, the people who will be sentenced more harshly by judges afraid of being “Persky’d” at the ballot box are far removed from this upper-middle class social milieu. Due Process and the rights of the accused are of little interest to Professor Dauber in particular and her social class in general. This voter base seems to labor under the notion that stiff prison terms will serve as tough medicine for sexual assault and rape culture.

Because there is no sexual assault or rape culture in prison.

2 thoughts on “The Fall of Judge Persky: A Cautionary Tale

  1. Emily Doe’s anonymity allowed Dauber to assert that her statement was hers alone. Given the available evidence, I’m EXTREMELY skeptical that Doe wasn’t assisted by Dauber in crafting her narrative for a media that was sympathetic to her plight.

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