By Robert J. Hansen & Susan Bassi
Stanford University professor Michele Dauber and Santa Clara County Court Judge Cindy Hendrickson appear to have coordinated their efforts to recall Judge Aaron Persky, as revealed by records obtained by the Vanguard after the June 5, 2018 election.
As the recall campaign got underway, then-Deputy District Attorney Hendrickson seemingly violated county policies by improperly accessing the DA’s criminal files to provide information to Dauber. Information that was then used by Dauber and other recall organizers in speeches, debates and other political activities connected with the recall.
Persky was recalled in 2018 after public outrage grew over the perception that Stanford University swimmer Brock Turner was given too light of a sentence in a high-profile sexual assault case.
Despite California’s political narrative advancing criminal justice reform, judges in the state are reportedly imposing tougher sentences for fear of falling prey to what is commonly known in the legal community as the Persky Effect.
A documentary on the recall of Judge Persky aired on MSNBC last month, revealed the troubling consequences of the recall.
From 2015 to 2018, Stanford University professor Michele Dauber and other organizers launched a political campaign to recall Judge Persky. This campaign was the first test for the MeToo movement as Dauber manufactured outrage over Persky’s sentencing of Turner.
Retired Santa Clara County Judge LaDoris Cordell said in the documentary that something never felt right about the recall, which she opposed.“I began reading transcripts, the probation report and that’s when I said, ‘Wait a minute,’” Cordell said in the documentary.
Judge Ladoris Cordell says The community, public and media were being misled … pic.twitter.com/4WQ0F4UhPl
— Robert J. Hansen (@rjhansen13) April 28, 2023
Judge Cordell led a group called Voices Against Recall, one of many groups that publicly opposed the recall.
“The community, the public and the media are being misled and those of us who know this need to speak out,” Cordell said in the documentary.
Santa Clara County District Attorney Jeff Rosen said he was against the recall in the documentary but the emails between his office and Dauber suggest otherwise.
As the recall got underway, Dauber began seeking information to use in the campaign such as files to other criminal cases.
“Here’s another case I have a question about (that I mentioned today) Keenan Smith,” according to a Sept. 28, 2016 email from Dauber to Hendrickson.
“I am confused about what happened with the sentence in this case,” Dauber wrote. “It appears that he never showed up to begin his sentence or to do his DV classes but then I can’t tell what happened as a result of that. Can you help me understand?”
Hendrickson used her government email accounts to obtain Dauber’s assistance for her personal political campaign, opposing Judge Aaron Persky in the June 5, 2018, Santa Clara County election.
An email Hendrickson wrote to Dauber on Dec. 1, 2016, asked; “Do you have a minute to chat on the phone tomorrow by any chance?”
Dauber responds to Hendrickson. “I have an 8:00 am conference call. Can I call you after?”
Email communications, which can be read here, between Hendrickson and Dauber show ongoing discussions on sentences for cases similar to the Turner matter, revealing a relationship and effort to recall Persky.
In a series of emails in August 2016, Stanford University Constitutional Law Professor Michele Dauber communicated with Assistant Deputy District Attorney Terry Harman in a manner that suggests coordination over how to control the media during the recall.
In discussing information with the DA’s office about cases assigned to Judge Persky, Dauber states in an email dated August 18, 2018, “I don’t want any other press organization to get it”, referring to the Gunderson matter.
A second email sent the same day at 2:47pm, shows Dauber telling Harman, “. . .please don’t share the Gunderson case to anyone due to press exclusives.”
In an article published in Politico, University of San Francisco law professor, Lara Bazelon, noted that in 2016 Dauber said to NPR of Persky’s replacement, “Hopefully a qualified woman will replace him.”
David Angel, a high- ranking member of the District Attorney’s Office, emailed the Politico article to DDA Jay Boyarsky and DA Rosen, suggesting the DA’s office was monitoring Dauber’s activities in the press as it related to the recall.
A July 5, 2016 email, between deputy district attorney Alaleh Kianerci and Dauber, reveals Dauber used her husband’s connections at Twitter to take down the account of a man who opposed the recall and was critical of Dauber on social media.
A summary of emails between the district attorney’s office and Dauber can be read here. Rosen also used his office email account to communicate with Dauber about the recall as he publicly claimed to oppose it.
Over 500 emails between the Stanford University Law Professor and the district attorney’s office, display an appearance of coordination between the two parties in efforts to successfully have Judge Persky recalled.
On December 2, 2016 Hendrickson wrote from her DAO email account to Dauber; “Hi Michele, I am looking forward to meeting with you on January 5th in your office. Thanks again for the tremendous compliment you have paid me by reaching out.”
Some months later, Hendrickson announced she was seeking Judge Persky’s judicial position where she was supported and endorsed by Michele Dauber.
Dauber wrote to Rosen on August 17, 2016; “Dear Jeff: I gave some thought to our conversation and have some follow-up thoughts. If you want to give me a call I can let you know about them. I would appreciate speaking just with you rather than with you and Jay,”
“You missed a great event,” Dauber said to Rosen via email. “Did they tell you that two jurors showed up to show their support for the recall? You should reconsider.”
One email from Rosen written presumably to Dauber, shows a single line of text of only one or two words ALL REDACTED.
On March 30, 2017, Dauber wrote to DA Rosen; “Hi Jeff: I am wondering if we can set up a call on a non-County political matter. Thanks.”
Rosen responded to Dauber; “Dear Michelle, Sure. Please send me your cell phone number and I’ll try to give you a call later today. Sincerely, Jeff.”
Three years after Santa Clara County voters recalled Judge Persky and re- elected Jeff Rosen, District Attorney Rosen fired deputy district attorney Daniel Chung for writing an opinion piece in the San Jose Mercury about the need for balanced criminal justice reforms to protect victims, communities and the rise in violence against Asian Americans.
Rosen’s basis for disciplining Chung was in part because he used his official title without permission and because he used county equipment to write it.
Rosen placed Chung on paid administrative leave in May 2021 and then issued security notices barring Chung from county property. No similar action was taken against Hendrickson who was managed and supervised by Rosen.
Rosen, Hendrickson and Dauber all have ignored requests for comment.
Media Access During the Recall Campaign
As the recall dominated local and national news cycles, Hendrickson was active in a secret judge committee, the BBMP, as previously exposed by the Vanguard in the Tainted Trials, Tarnished Headlines Stolen Justice series.
Records from Santa Clara County’s recently deactivated Bench-Bar-Media-Police Committee (BBMP) show member Judge Hendrickson and District Attorney Jeff Rosen, were members and actively attended BBMP meetings at all times during the campaign to recall Judge Persky.
BBMP meetings provided members exclusive access to Santa Clara prosecutors, public defenders, judges, police chiefs, county sheriffs, and select news outlets. The relationships formed between these individuals over the years could reasonably create conflicts of interest for judges and attorneys.
Records also indicate Persky only attended BBMP meetings once or twice and was not as active in BBMP off-record meetings as Rosen and Hendrickson were.
Persky was unable to be reached for comment.
By attending BBMP meetings, Hendrickson and Rosen had access to Mercury and NBC reporters who were exclusively invited by Judges Towery and Pegg. Meanwhile, other news outlets and journalists were not invited while they reported on the recall.
Stanford law professor Robert Weisberg also was attending BBMP meetings during the time of the Persky recall, records show.
Weisberg has not responded to requests for comment.
Mercury editor Burt Robinson and reporter Tracey Kaplan were regular attendees of BBMP dinner meetings.
In a May 2018 editorial, BBMP member San Jose Mercury said Persky should be recalled.
“The decision comes down to this: Voters need to stand up and make a statement on behalf of women and men about the seriousness of sexual assault,” the Mercury wrote. “Persky’s sentence failed to do so to an extent that he will never again be able to serve as a respected, effective judge. He should be recalled.”
Hendrickson was appointed as a judicial member of the BBMP the same year she replaced Judge Persky on the bench. Since that time, Hendrickson has been assigned to family court with BBMP chairpersons and Judge Amber Rosen, DA Rosen’s wife.
Governor Brown appointed Amber Rosen to the bench six months before the recall election.
While acting as BBMP members during the recall, Los Altos Town Crier publishers, Paul Nyberg and his wife, Liz, served on the board of Los Altos based nonprofit, WomenSV.
Ruth Patrick Darlene, WomenSV’s founder, and ties to Cindy Hendrickson were previously reported on by the Vanguard in Parts Three and Four of the Tainted Trials, Tarnished Headlines, Stolen Justice series.
Also in attendance at BBMP meetings during the recall was NBC Bay Area Vice President Johnathan Mitchell and investigative journalist Tony Kovaleski.
As the recall was in full swing, Kovaleski was invited to speak to BBMP members. San Jose Mercury editor Bert Robinson and investigative journalist Robert Salonga also spoke at BBMP meetings during the recall as other local reporters covering the recall were excluded by BBMP customs and practices.
In a letter to Santa Clara County Court General Counsel Lisa Herrick, Orange County attorney Patrick Evans said there appears rather a high probability that litigants’ rights and cases were compromised by secret, “off-record” communications between the judges anointed counsels that were invited to attend BBMP dinner meetings.
“Motive for media special invites appears to be for the judges to control media coverage of cases before them and other matters of public interest that would be media reported,” Evans wrote.
According to Evans, several other attorneys never heard of the BBMP and records declare “members” only, indicating no public announcement, “by invitation only.”
“Clients having cases in Santa Clara County Superior Court (or that had such cases in years past) cannot properly and fully advise and represent their clients, ” Evans wrote to Herrick.
Without the records, counsel cannot know which judges interacted with opposing counsel, or when opposing counsel was entitled to favorable treatment with a special invite to a non-public, secret BBMP event where they could engage in ex parte communications with judicial officers about pending cases, according to Evans.
The Vanguard continues to reach out to BBMP members and attendees as part of this investigation.
One attorney, who wished to remain anonymous over concerns of retaliation, noted that he attended a political forum and noticed only Mercury reporters were present.
“It felt like we were crashing a private event, not attending a public forum with voters and media we typically see during political campaigns,” the attorney said. “After the meeting, Mercury reporter Tracy Kaplan wrote a hit piece on the candidate who had been disfavored by the judges in the meeting. Something about that reporting didn’t feel right.”
Kaplan has been unable to be reached for comment and Mercury editor Burt Robinson has not responded to requests for comment. NBC Bay Area has not provided a statement on its participation in the BBMP.
Judge Invitations to Secret Speakers
The California Supreme Court Committee on Judicial Ethics (CJEO) announced on April 13, that it is drafting a formal opinion outlining what judges should consider when inviting outside speakers and groups to give educational presentations.
The public has until May 29, 2023 to comment on CJEO’s draft which concludes courts may invite outside speakers and groups to provide educational presentations to judges and staff as long as:
- the presentation does not undermine judicial impartiality;
- speakers represent a balance of interests and viewpoints;
- the presentation would not lend judicial prestige to advance the outside speaker’s interests;
- the presentation does not include improper political activity; and
- the outside speaker is not involved, or likely to become involved, in litigation before the court
“Judicial education is critical to a fair and effective judiciary, and the public expects judges to be exposed to a variety of issues having an impact on the courts. To ensure public confidence, outside speakers should reflect a balance of interests and not suggest that any group has special sway over the court,” said committee chair Justice Ron Robie.
Tainted Trials, Tarnished Headlines, Stolen Justice is an ongoing Vanguard investigation. Links to the published series can be found here.
Investigative Reporter and Editor-at-Large, Stephen James, contributed to this report.