Widespread public attention

In a press release, the California Commission on Judicial Performance announced that it is closing its investigation of Judge Aaron Persky for the 6-month jail sentence (plus 3 years’ probation and lifetime sex offender registration) he imposed on a Stanford University student-athlete, Brock Turner, who had been convicted of sexually assaulting an unconscious woman behind a dumpster outside a college party.  As the Commission notes, the sentence “was widely criticized as being too lenient, and triggered significant public outrage and media coverage,” and the Commission received thousands of complaints.

Stating “[m]any complainants asked the commission to ensure that the sentencing in this case matches both the crime and the jury’s verdict and to be sure that justice is done,” the Commission emphasized that it “is not a reviewing court — it has no power to reverse judicial decisions or to direct any court to do so — irrespective of whether the commission agrees or disagrees with a judge’s decision.  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 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.”  It explained:

First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence.  Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases.  In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University [he had been a student-athlete there] are insufficient to require disclosure or disqualification.

The statement describes the Commission’s analysis, including a discussion of the judge’s statements during sentencing, a comparison to cases in which other judges have been reversed or disciplined for making statements that reflect bias, and an evaluation of the judge’s sentencing decisions in other cases.

Usually, the Commission’s decision to close an investigation would be confidential pursuant to the state constitution, but the constitution creates an exception that allows the Commission to issue an explanatory statement and the Commission used that exception “[b]ecause Judge Persky’s sentencing of Turner and the complaints to the commission received widespread public attention . . . .”  Although complainants and many members of the public may still disagree with the Commission’s decision not to charge Judge Persky, the release of the statement means that at least they can understand the basis for the decision and their disagreement will be an informed one.

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