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Wrestling with Brock and Sentencing (or Let’s abuse the ref)

Today we start our series looking  at the Brock Turner Sexual Assault Case by examining both Judge Aaron Persky’s sentencing of Turner to Six months jail time and the public reaction to the sentencing. In terms of sentencing, Judge Persky’s decision to sentence of six months jail time, along with lifetime sex offender registration, and three years probation have come under serious fire. It has even sparked an online petition for the removal of Judge Persky with signatures from all over the nation. People calling this a sign of how none of this is taken seriously. And it all raises a serious question:

Have you lost your minds? 

Yes, I know the sentence was startling to many. Six months? For attempted rape? It sounds like a lousy sentence. I admit, were I the judge I would have been more inclined to sentence him to three years because of the incapacitation of the victim. But, I am not the judge. This was Persky’s call and we are forgetting a key fact here. There was nothing illegal about the sentence.

Let us think about this for a moment. People are clamoring for Turner to be resentenced or even re-tried, which to be frank is about as ignorant a statement as one can make. Such an action has no basis in law. There were several sentencing possibilities including formal probation with no time all the way up to several years in prison. We can be disappointed by this decision, but we can not respond that this was a complete abuse of discretion. It was not. Were there better choices? Yes. Even the probation department sought a longer sentence, albeit only for a year. Though not a wise use of his discretion it was not an abuse of it. And that calls for a different reaction than a lot of what we keep hearing.

There is something else about this backlash that bears noting. The People of Santa Clara County are perfectly free to attempt to recall Judge Persky, even if it is an unwise move. But those who do not live there have no business, and I mean none, to call for his resignation or recall unless they are prepared to discuss all of his rulings. But that is not going to happen because THIS was the only one that got their attention. In truth, most of us have no idea whether or not Judge Persky is a good judge or a bad judge. But the people of Santa Clara do or should. And when the prosecution and defense bars of a county both say the judge should not be recalled and that he is a good judge who made a bad decision, then people outside of those communities should back up and back off a bit. To reduce a judge entirely to one decision in one case with massive media attention puts us on a road to hell paved with the usual good intentions, but a road to hell nonetheless.

That road, in a nutshell, states that if the public does not like a judicial decision, then it should be able to, on a whim remove the jurist. Some call this democracy in action. I call it madness. To do so ignores that in our Consitution the only judges the Founders set up called for lifetime appointments. The theory is judges who were beholden to the whims of a voting populace would be less interested in justice and be subject to the howls of the mob. And here, as expected, Judge Persky has already received several death threats. The impact of this kind of pressure on judges is not insignificant.

The purpose of such pressure is to intimidate judges. Not just the target, but all of the judges. To remove one and put the others on notice that, by heavens, we want to see heads roll in these cases. We want the court to abandon its discretion, analysis, probation officer reports, and experience and instead rule in the least politically offensive manner. Not only will this potentially chill justice, but it could mean harsher sentences for those who do not deserve it. Instead of three years, a judge may overreact and sentence someone to eight years. Justice yields to decisions that make people happy instead of being just. Yes, when we grant judges the discretion for punishment there is always the chance there will be a mistake. But when we prescribe set punishment, without consideration of all the facts, we set the table for further injustices. In other words, we have to be careful that in an effort to make up for Judge Persky’s decision we do not create a situation where people will be locked up with the facts being irrelevant. Because the people who will suffer the most are not going to be privileged  Stanford students. It will be those much less fortunate.

The other problem with these recall efforts is they are completely unnecessary. There are two other recourses, one of which is not available at the moment and one that is. First, there is the election. Judge Persky is running unopposed for his seat on the bench right now. An effort could be made, for those so bent on taking this action, to unseat him next time. The other recourse is procedural in nature: California Code of Civil Procedure 170.6.

CCP 170.6 (a)(1) states :

 A judge, court commissioner, or referee of a
superior court of the State of California shall not try a civil or
criminal action or special proceeding of any kind or character nor
hear any matter therein that involves a contested issue of law or
fact when it is established as provided in this section that the
judge or court commissioner is prejudiced against a party or attorney
or the interest of a party or attorney appearing in the action or

In other words, without written notice or hearing,  an attorney can make a simple oral motion, be sworn in and state that the attorney believes the judge holds a bias against the attorney, attorney’s client or the interests of attorney’s client. And that is all. The case is then removed from that judge and assigned elsewhere. And it is not unusual that a judge has found his or herself “170.6’ed” by entire offices of on a particular type of cases.  So , if the District Attorney’s Office  believes Judge Persky is too biased in favor of student athletes or white men or swimmers, it has the option of merely having him removed. But as we know, they do not feel that way. They do not believe he can not still effectively sit on the bench.  And I should add these are people whose passion for dealing with these issues does not stem from a viral victim impact statement or whatever the hot story of the month is. These are people whose commitment was made long before anyone calling for Persky’s head ever heard of Brock Turner.

Yes, this is painful, I am sure for many. The idea that more could have been and should have been done by Judge Persky is not an unreasonable one. But before folks go too far with the pitchforks they should remember that this case is over. It is good to raise questions and call for analysis of the system as a whole and yes, even let Judge Persky hear a thing or two, but do not get so lost in the story of the day that we create a system that wants no balance at all. Because one day, you or someone you love may very well need that balance.

NEXT SEGMENT: Lawyering in sex offense cases: Yes, it gets nasty and yes it is necessary.

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