Public Defenders Association Concerned with Threat to Judicial Independence

scales-justice-blurred(From Press Release) – The California Public Defenders Association underlines the need for judicial independence, in contrast to recent threats to recall Santa Clara Superior Court Judge Aaron Persky.

The largest association of criminal law defense attorneys in California, including nearly 3,500 public defenders and private attorneys, the California Public Defenders Association (CPDA), notes that judges are expected to follow the rule of law, and to not allow outside influences of any nature interfere with their decision-making process.  CPDA outlines below the dangers of judicial recall movements, and highlights in particular, the recent calls to remove a California superior court judge for having followed the law in a sentencing hearing.

The California Public Defenders Association condemns the clamor to recall Santa Clara County Superior Court Judge Aaron Persky. To remove any judge based upon one ruling is an attack on judicial independence.

The United States of America and the State of California were founded on the premise that all of us are entitled to live our lives as free individuals. In order to guarantee these freedoms and individual rights, our founders created three branches of government instead of entrusting complete authority in a single branch or ruler. Our freedoms, rights and system of government have survived because of the checks and balances that each branch exercises over the others. The majority elects legislators to create laws and executives to enforce the law, and we have judges to interpret the law and apply it to the individuals who appear before our courts.

Unlike politicians, judges are not supposed to be influenced by majority rule, the power of special interests, or the largesse of money. It is only in the judicial arena that any individual can hope to be treated fairly against the will of the majority or the powerful. While we Californians retain the ability to vote a judge out of office, that power is meant to be used only when the targeted judge fails to honestly and ethically follow the law. It should never be used to remove a judge because of disagreement with her decision. Removing a judge who made an honest, lawful and conscientious decision just because that decision is unpopular would imperil the ability of any individual to receive fair treatment from our courts. Every judge would feel the pressure to rule based on public reaction to her decision, instead of the evidence and facts presented, and the individuals before the court. And it would discourage judges from following the law and deciding cases based on what they conscientiously determine is just in each individual case for each individual person despite their knowledge that their decision will be unpopular with many.

Our organization represents poor and often minority defendants in an environment that makes it difficult for members of the criminal justice system—including prosecutors, law enforcement, and victims’ advocates—to see our clients as deserving of the individual consideration of their personal histories and other critical sentencing factors that is required under the Constitutions of the United States and the State of California. There can be no justice unless judges have the integrity and independence to rise above the sometimes intense public pressure to deviate from their legal obligations of fairness to the individuals before them. The recall of Judge Persky would punish the indispensable foundation of our legal system—judicial independence—and greatly reduce the ability of even more indigent defendants to be treated fairly in the future.

The Santa Clara County District Attorney has publicly acknowledged that there is no basis to appeal the sentence imposed by Judge Persky because that sentence was lawful. The movement to recall the judge acknowledges this fact. It would be a serious blow to the independence of our judiciary that serves all the people of California to remove this judge because of a single sentencing decision he made honestly, conscientiously and lawfully.

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  1. Tia Will

     It would be a serious blow to the independence of our judiciary that serves all the people of California to remove this judge because of a single sentencing decision he made honestly, conscientiously and lawfully.”

    I completely agree with this statement.

    However, I wonder if it might not be both instructive and worthwhile for there to be some kind of review of the previous judgements of Judge Persky with the goal of determining whether this is a “single sentencing decision….made honestly, conscientiously and lawfully, or whether it represents a pattern of leniency in specific types of cases or a tendency to favor certain groups of defendants ( class, race, religion, political persuasion) which would represent a pattern of unjust decision making.

    Maybe some of our lawyers could educate me on the types of review of judges decisions that are available and might apply.

    1. David Greenwald

      Perhaps, but Jeff Rosen initially said that the his office had found Judge Persky to have been fair, and then he altered his tuned when things started blowing up.

    2. SODA

      Hi Tia!

      Agree; would think there is public data available on judges’ decisions. And in this case I would be interested in drilling down to similar charges, diverse defendants and circumstances, and see the range of decisions. While I do not agree that long prison sentences benefit the victim, defendent or society in cases such as this, they certainly should not be delivered in a grossly  unequitable way. But let the data speak.

  2. Tia Will


    Right. But then Jeff Rosen is hardly a disinterested party. I was thinking more in terms of some kind of independent review board. I don’t know if we have such a process for review of the overall performance of judges but this case would seem to be the “poster child” for the utility of such a process.

  3. Tia Will


    There is a Commission on Judicial Performance in California, but it has no authority.”

    I am unclear on this point.

    From the web site of the Commission on Judicial Performance :  “After investigation, and in some cases a public hearing, the commission may impose sanctions ranging from confidential discipline to removal from office.”

    From this statement, it would appear that they actually do have authority. Is this incorrect, or do they simply not choose to use this authority ?

  4. PhillipColeman

    Here we find a congregation of public defenders deploring the actions of the public for criticizing a judge’s sentencing for a criminal conviction. A public protest such as we’ve seen in this recent case compromises the judicial independence of magistrates, we are told, and which is essential to our sense of fairness and equity to all before the court.

    Sounds so good. Visions of American flags waving on the eve of Independence Day no less, you want to stand up and salute. If only had the authors stopped there.

    But the writers made a serious tactical error, (make that two) while further arguing that judges must always be above the fray of momentary public sentiment for a criminal sentencing. The PD’s went Constitutional on us, and spoke of the “separation of powers” as an illustration of the need for judicial independence. Note was made on the “checks and balances” our Constitution provides to ensure no unit of government can stray away from the will of the people. The courts make sure the executive and legislative branch of government follow the public will for protection from abuse from all forms of government. Sounds so good, and it’s all conceptually accurate.

    So who checks the judiciary? That’s the issue here. Once appointed to the bench through a executive/legislative process, judges are virtually immune from public review and scrutiny for the remainder of their public lives. The re-election process–supposedly a means to measure public satisfaction of a particular magistrate–is a farce. Almost never does an incumbent judge face an opponent and thus give the public to judge a judge. Your choice is vote, not vote.

    But there is still another check allowed by the Constitution, one that can be used by the “will of the people” and this is where Public Defenders’ Association does a backward flip and now shows itself condemning the exercise of a Constitutional right.

    It’s called a Recall. The public can independently take action when it’s dissatisfied with the performance of a public servant and the other checks and balances are not working. The Public Defenders’ Association argues this citizen action threatens judicial independence. Judicial independence is just code for magistrates should have no accountability to the public will. No provision of the Constitution recognizes “judicial independence” as depicted here.

    The collective Public Defenders and their “clients” (really bad choice of word there) don’t like it, but life’s a bitch sometimes. If you are going to recite the Constitution to us as an argument, read the entire document.


    1. SODA

      Thanks as always, Phil, for enlightening us! Can you go a little farther and give us the particulars for the process of recalling a judge, how high a hurdle is it and how often does it happen and is successful.

      Happy Fourth! Thanks for coming out of retirement to help us!

      1. PhillipColeman

        The Recall or Referendum Vote power given to the people was most dramatically illustrated in California by the successful recall of Governor Davis. Recalls are initiated by petition process (another Constitutional right) and apply to elected officer holders. Should a sufficient number of registered voters be obtained by petition, a general election is mandated. With a, yes/no vote, a determination is made on the suitability of the public servant to continue to hold office.

        Recalls are rare. Even attaining the minimum number of petitioners is difficult, let alone the larger task of getting a majority vote in a general election.

        To apply this to a sitting judge is the most rarefied example of the Recall process. Magistrates are not immune to public criticism, but the certainly feel they can safely ignore the criticism. That feeling may soon change.

        No matter how one feels about this Recall process invading the previously insular sanctity of the judiciary form of government, a successful removal of this judge will have enormous political impact on every person who reports for work wearing a black robe.

  5. Nora Oldwin

    There is a Stanford law professor who is leading the group to recall the judge. I believe you can find information about other cases the judge has decided at the following website:

    I believe the professor’s name- the one leading the recall effort- is Michelle Dauber. From what I’ve read, this judge has sided with other males found guilty of domestic violence, for starters. As a former public defender, I usually found that judges sided with the prosecution, but then my clients were usually poor. In the Stanford case, the perp was not poor. The law is not a discreet, separate thing to be “applied” without emotion or thought, or consciousness of social realities; else a robot could do it.  I support this recall effort- this judge needs a wake-up call in my view. Remember what Sonia Sotomayor said about a “wise latina”- it’s true, sometimes judges can’t “get it” unless they are forced by external circumstances to see what they can’t know from their own backgrounds. This judge can’t know what women everywhere know; maybe he can change. I think public outcry about this- and about all injustice is our responsibility.

    1. quielo

      If history is any judge any impetus to increase sentences will fall most heavily on the poor and powerless despite whatever case may have set it in motion. You may want to punish rich kids but poor people will pay the bill.

  6. nameless

    Just to add context to this particular case, the judge was a Stanford alumni.  I suspect that colored his thinking when he sentenced a rapist who was a Stanford student to six months in jail.  IMO the judge should be recalled ASAP.

  7. mercy4all

    As I, along apparantly with most of the state and country followed this one particular case, both as a public defender and a citizen with a daughter and a grandaughter,   I wholeheartedly and passionately support both the above statement through our state organization (I’ve never heard us referred to as a congregation but whatever) and support for this particular judge.  Nothing in his long career as a prosecutor (apparantly in the sex crimes division of Santa Clara D.A.) nor as a judge before or after this case would warrant his removal by recall, a drastic remedy which in the few times I’ve seen it  as here , involved  one particular decision and the inevitable politics and outrage which follows or because of real and often long term misconduct, such as corruption or criminal behavior.

    So this judge’s sentence upon a 19 year old student with no criminal record no history of violence or sexual misconduct, and a future now destroyed by these convictions causes  such alarm and even hatred that it permeates even to the words of the Vice President of the United States. It seems that the old mid-evil sentence “off with his head” has become again the cry of the crowd.

    So what did this judge impose at sentencing? Well, in considering all  of the above plus mandatory lifetime registration as a rapist for this young man, and strict and extremely difficult terms and conditions of probation, he apparantly differentiated this rape case from those where  the Victim was conscious and aware, quite capable of objecting and overcome by outright overwhelming violence.  Additionally this was a digital penetration case (non intercourse).  The significance of this is that there was less likelihood of disease and none of  pregnancy.  Sure, it was the students who came upon this passed out victim behind a trash bin and the defendant removing her clothing and digitally penetrating her that may have stopped this.  Sometimes chance encounters save  you, other times they doom you.  Here probably  it’s both.

    At any rate the crimes for which he was convicted are absolutely rape  or its equivalent.  They carry up to 14 yrs in prison.  This is reached because sex crimes stack consecutively.  However,probation is an alternative with up to a year in the county jail.  So  as you scream to put this boy away for as long as the  law allows ask yourself this:  If these crimes warrant under some circumstances probation isn’t this that case.  No record, intoxicated, young, full time student good family friends and community,  one would think he expressed remorse and shame, victim passed  out drunk, no lasting physical affect (pregnancy or disease) then what would you think might ever warrant probation?

    Whether you agree or disagree with probation in this case it is neither an illegal  or frankly immoral result.  It’s rational and it seems well thought out and carefully crafted.  I’m sure it includes not only jail but a no alcohol, no illegal  substances, and very very strict sexual crime counseling.  I’ve had clients ordered into these programs for years.  Failure to attend, failure to “fully participate” (meaning confessing often and honestly and virtually begging for  forgiveness)  is a violation of that probation I’m sure.      If he violates any of this,picks up a DUI or even drunk in public or violates his probation at all  that 14 yrs is his. And let’s not forget the probation department reccomended probation.

    If instead we just mandate prison every time for this crime and  so  many others or if judges contemplate tough cases and say “wow the right thing to  do is x but if I do it I’m doomed” where are  we?  At a very very sad day in  America and an end  to the balance of powers, a part of  what we celebrate this July 4th.

  8. nameless

    mercy4all: “If these crimes warrant under some circumstances probation isn’t this that case?”  

    NO, NO, and most emphatically NO!

    I would consider probation for a 19 year old boy who had consensual sex with his 17 year old girlfriend to be an appropriate case for probation.

    Let’s take your points for this rapist’s lenient sentence one by one:

    1. Victim was unconscious – so if you get a victim drunk/drugged enough to pass out, she’s fair game and you’ll only get probation/slap on the wrist – it’s no big deal?

    2. Digital penetration – there were vaginal abrasions, as well as pine needles and dirt and debris inside the victim’s body, which could result in all sorts of medical complications.  If the infection is bad enough, it could result in infertility.

    3. Bystanders stopped the attack – which most likely would have gone a lot further had they not intervened.

    4. Rapist has no prior record – just means he never got caught.

    5. Rapist was intoxicated – are you kidding me, since when is intoxication a defense to rape?

    I’m frankly very surprised at your arguments as a member of the state bar.  You should know better, and so should the judge and probation department.  I strongly suggest you read the victim’s letter she read to the court – it is a real eye-opener:


    1. nameless

      Just as an aside, I suspect this judge gave the rapist a lenient sentence because 1) he was a Stanford alumnus; 2) he had the attitude that if a girl is stupid enough to get drunk in mixed company, she deserves what she gets; 3) intoxicated boys will be boys.

    2. Tia Will


      I agree with most of your post about unconsciousness of the victim and alcohol use of the perpetrator not being defenses. However, I feel obliged to make a factual correction. The presence of pine needles and dirt in the vagina are less significant risk factors for significant infection leading to infertility than would be penile penetration. It is the upward movement of bacteria through the cervix and into the uterus that presents the risk of significant pelvic infection. Neither dirt nor pine needles have any significant chance of reaching the uterus.

    3. mercy4all

      Not one point I made argued against convicting Mr. Turner of rape.  Each addressed the court’s responsibility to sentence fairly and based upon the facts presented.  Each counterpoint you make argues that this is rape.  I agree.  So apparantly did the trier of fact.  So arguing that I or anyone who argues probation in this case is “excusing” this conduct is absurd.  More so your comment that probation probably was granted because the judge and the defendant were “Stanford” guys and he felt that “boys will be boys. ” Again, probation is a possible sentence for this conduct and if not here and under these facts when?.  Also, your statement that you’d agree toProbation for a 19 yr.  old having sex consensually with a 17. Yr old is almost laughable.  I know of virtually no D,A, that would even charge that and it would be informal misdemeanor non registrable off your record in a relatively short period of time probation at most.

      Probation reccomended probation.  The Judge was a former career prosecutor of sex crimes before taking the bench.  Even the D.A. Reccomended only 4 yrs which would have been at about 2/3 time with no requirement of sexual crime counseling either in prison or thereafter.  Instead he gets years of it, jail time and a lifetime of registration and everyone knowing for the rest of his life that he’s a rapist.  ITS ENOUGH.

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