Brock Turner, the 'Athlete Bias,' and the Movement That Produced the Recall of Judge Aaron Persky
After Brock Turner was convicted on March 30, 2016, of three counts of felony sexual assault—assault with intent to rape an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object—but sentenced to just six months in county jail, attention focused not only on Turner and on victim Emily Doe, but also on Judge Aaron Persky. A former sex crimes prosecutor who had sat on the Santa Clara County Superior Court bench since 2003, Persky was recalled in Tuesday’s election, an extraordinary measure that made Persky just the second judge recalled in California in 80 years.
What prompted county voters to take such a historic measure? Persky’s entire judicial record was at issue, but his ruling in the Turner case ignited the movement to recall him. Turner, a swimmer at Stanford, was initially portrayed in the press as a wide-eyed freshman before the release of his mug shot, eyes red after a night of heavy drinking that concluded with his arrest. The prosecution had sought a six-year prison sentence while probation officer Monica Lassettre recommended six months in county jail instead, citing a comment that she says Doe made to her that she didn’t want Turner to “rot away in jail," Lassettre also based her recommendation on her claim that Turner had no criminal record and that, in her words, “this case, when compared to other crimes of similar nature, may be considered less serious due to the defendant’s level of intoxication.”
At the sentencing hearing, Doe read her victim-impact statement that would soon become, in the words of Stanford law professor Michele Dauber, “the manifesto of the #MeToo movement.” Doe said the assault had made her feel like she wanted to “take her body off like a jacket” and how Turner took “my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice, until today.”
In his ruling, Persky claimed that a prison sentence would “have a severe effect” on the 19-year-old Turner and that, regardless of the sentence, he would be required to register as a sex offender for the rest of his life. (Turner was released from jail in September 2016 after serving three months.)
The Santa Clara county district attorney and a host of others lambasted Persky’s ruling, saying, “The sentence does not factor in the true seriousness of this sexual assault or the victim’s ongoing trauma.” Turner was a convicted, hardly repentant perpetrator who presented himself as a naïf from Oakwood High in Dayton, Ohio, who had been corrupted by the “dangers of party culture” instead of apologizing for the crimes he had committed.
Reaction to Persky’s ruling resulted in 1.3 million signatures on a Change.org petition to recall him and triggered an examination of his record. Was the judge lenient toward perpetrators of domestic violence and sexual assault? Was Persky, a captain of the Stanford lacrosse team as an undergraduate, partial toward collegiate athletes? A friend of Emily Doe’s family, Dauber began researching Persky’s record.
In the end, Dauber’s findings resulted in a Vote Yes campaign, casting the move to recall Persky as justice for multiple women who stood before Persky and saw their abusers receive light sentences. Opponents of the recall started a Vote No campaign, seeing the recall effort as a distortion of Persky’s record and a threat to judicial independence. According to a former Santa Clara county judge, Dauber was giving “a black eye to Stanford Law School … simply an embarrassment.”
“I have never dealt with such a dishonest campaign in my life,” says LaDoris Cordell, a former Santa Clara Superior Court judge and the most public face of the Vote No campaign. “Just flat-out lying. It’s stunning to me that the so-called progressives who started this campaign are the ones who want judges to favor public opinion instead of the law. This will have a chilling effect on judges deciding whether or not they should make lawful decisions out of fear that they may lose their jobs.”
"Everything we have presented to the public has been thoroughly researched and accurate," Dauber says. "All of the evidence supports the conclusion that Judge Persky is biased in favor of athletes."
So what inspired the citizens of Santa Clara county to Vote Yes?
In 2011, Monica Burneikis, then 33 and in her sixth year of practice as a trial lawyer, joined lead counsel Barbara Spector to prepare depositions for what would be known as "The De Anza case." In March 2007, 17-year-old Jane Doe arrived at a house party thrown by members of the De Anza junior college baseball team where she consumed somewhere around 11 shots of alcohol. (Later toxicology tests revealed that, her blood-alcohol content had ballooned to around triple the legal limit.) She blacked out. According to testimony, she ended up in a bedroom with somewhere between six and nine men, some blocking the door and others cheering. Three female players from the De Anza soccer team—April Grolle, Lauren Bryeans and Lauren Chief Elk—testified that they barged into the bedroom despite resistance from multiple De Anza players to find an unconscious Doe, vomit caked around her mouth and in her hair, being sexually assaulted by several players.
The Santa Clara DA at the time, Dolores Carr, declined to pursue the case, citing lack of evidence (her successor as DA and the California attorney general also declined to pursue it). Jane Doe then sued ten players and Persky presided over the civil trial. In pre-trial motions, another judge had ruled that if the defendants had exercised their fifth amendment right to refuse to answer questions during depositions, they would not be able to participate by testifying or submitting new evidence in the trial. When Persky took over the case he allowed those who had invoked the fifth to enter new testimony. The move stunned the plaintiff’s attorneys.
Persky then allowed photographs of Doe wearing a scanty Halloween outfit sometime after the attack to be submitted as evidence. This was proof, defense attorney Jeff Nevin said, that Doe had not been traumatized by the purported attack as she had claimed.
In his closing arguments, Nevin stressed that that the jurors must look to the Facebook photos from after the night of the purported assault—one of the Halloween costume, another showing her serving a man a shot of alcohol from her cleavage—to determine that Doe was not suffering and that she had sought sex on the night of the alleged assault. “It’s disgusting in my mind that someone who is dressed provocatively in a Halloween costume is somehow inviting a sexual assault,” Burneikis says.
By the end of the trial, seven of the defendants had been dismissed or settled their cases, and one did not appear, so only two defendants remained. The jury found in the defendants’ favor 11-to-1, a decision that haunted Burneikis. Five years later came Persky’s sentencing of Turner. “It slapped me in the face,” Burneikis says. “I don’t know that Judge Persky ruled the way he did because of favoritism, but I do know that there are striking similarities between the two cases. You’re dealing with an alleged sexual assault that involved an intoxicated and/or unconscious woman by a college athlete. In both cases that is precisely what happened.”
Dauber argues that in cases involving sexual assault and domestic violence, Persky “bends over backwards” to accommodate male defendants. Worse, she argues, is his leniency when those males are athletes. “Brock Turner is just one example of an athlete being treated specially and differently,” Dauber says. “And he’s just part of a bigger pattern.”
Seen as a champion of women’s rights by some and scorned as a bully by her opponents, Dauber was contacted after the De Anza case by those who saw Persky’s rulings as part of a pattern. Dauber found what she says are five cases involving sexual assault or domestic violence that raise questions about Persky’s judgment. Since Persky had been re-elected in 2016, the only way to remove him would be by electoral recall. That would require more than 95,000 signatures and a 16-step process.
“What you need to learn about Professor Dauber is that she says things for six months or eight months until she gets caught,” says Santa Clara law school professor Margaret Russell, a co-founder of Vote No. “And then she has to backtrack because there is absolutely no evidence that Judge Persky is in favor of college athletes.”
"The voters examined the evidence of the four cases involving athletes and came to a different conclusion than Professor Russell," Dauber says. "I believe that Judge Persky's campaign has lost all perspective on this subject."
After Dauber joined the Stanford faculty in 2001, she became a confidante of female students who had suffered sexual assault. A tenured professor, she has been a fierce critic of how the university has adjudicated sexual assault cases. She tweets about Stanford’s “unacceptably low performance,” has ripped the university’s sexual assault adjudication process after it was found to not be Title IX compliant, and argues that the university silences those critical of sexual assault policies.
To Dauber and others seeking Persky’s removal from the bench, Turner’s sentence embodied the gentle treatment offered to privileged male perpetrators in sexual assault and domestic violence cases. Opponents of the sentencing found it galling that Turner never explicitly apologized for his crimes and that the prosecution’s sentencing memo revealed he drank alcohol and used psychedelic drugs while in high school though he had claimed in his letter to the Court that he “had been shattered by party culture” at Stanford.
Two months after the verdict, Emily Doe’s victim-impact statement was released on Buzzfeed, mounting public pressure on Persky and furthering Dauber’s campaign to remove him from the bench.
The Vote Yes campaign pointed to four of Persky’s other cases (two of which involved athletes). In rebuttal, the Vote No campaign cites a 2016 California Commission on Judicial Performance’s finding that Persky had no pattern of bias in his rulings. The first case in question involves San Mateo College running back Keenan Smith, who allegedly threw his girlfriend to the ground by her hair and then knocked an intervening bystander unconscious.
Smith was charged with two felony counts and one misdemeanor. He ended up pleading no contest to three misdemeanor charges and agreed to 120 days in the county's Weekend Work Program, three years of probation and completion of a 52-week domestic-violence education program. Smith was ordered by Persky to attend weekend work on Saturdays and Sundays for the first four months and on Sundays only from August on to accommodate his football schedule. After missing three domestic violence classes, Smith appeared before Persky in August 2016, and the judge stated that he would give Smith “one more and probably last chance.” Two months later, Smith had missed two more work sessions (one unexcused). “He was given a very sweet plea deal that allowed him to stay in school and on football,” Dauber says. “When football started he only had to go Sunday but he didn’t even do that. He violated his probation, yet Judge Persky kept giving him opportunities.”
To Persky’s supporters, Smith’s sentencing reflects proper protocol and the judge’s commitment to rehabilitation. “These were defendants, young men of color, for whom Judge Persky showed compassion and mixed punishment with mercy,” Cordell says. “He cared about young people. Now, thanks to this recall, we’re going backward especially in terms of racial justice.”
Like Turner, Smith was 19 and had no prior criminal record. He had pleaded no contest to reduced charges and was working full-time while playing football at a junior college. To many of Persky’s supporters, this case is an example of the system working, not evidence of Persky’s bias. “Professor Dauber is perpetrating this narrative that college athletes are rich and have nothing to do with their time,” Santa Clara Law professor Margaret Russell says. “She is ignoring those people of color and those without means who could play college athletics as a means to improve their lives. Judge Persky didn’t want Smith to get lost in the prison system.” Dauber scoffs at this idea. “At what point is this individual held accountable? If you violate your probation, football has to be taken away because your priorities are wrong. That never happened.”
Dauber also cites the case of Ikaika Gunderson as a reason that Persky deserved to be recalled. Gunderson, a football player at Foothill College in Los Altos Hills, Calif., pleaded no contest to felony domestic assault after allegedly choking his girlfriend and striking her with a closed fist in February 2015. He then sought to relocate to Hawaii, where he claimed he had received interest from the University of Hawaii for a walk-on spot on the team.
Persky agreed to defer Gunderson’s sentencing to July 2016 with requirements that he complete at least one Alcoholics Anonymous or Narcotics Anonymous meeting per week and a 52-week domestic violence education program in Hawaii, and the judge ruled that it was not necessary for him to notify the probation department. The Santa Clara county DA, Ted Kajani, argued that this was an unusual ruling, since federal law dictates that a felon seeking to move states is subject to what is referred to as an interstate compact—in short, two states have to agree that a felon is suitable for transfer. By not notifying the California probation department, Gunderson went to Hawaii unsupervised.
“The judge should have deferred the case over to probation if he wanted [Gunderson] to go over to Hawaii,” says Anthony Pennella, who oversees the interstate compact for the California Department of Corrections and Rehabilitation. “The compact insures that guys are supervised. I wouldn’t say it’s odd, I would say it’s a violation [that it wasn't issued.]”
The court never received any definitive information that Gunderson joined the Hawaii football team or even enrolled at the university, the online domestic violence classes he took in Hawaii didn’t satisfy the terms of his probation according to the Santa Clara county DA office, and he would be re-arrested in his home state of Washington after leaving Hawaii. He served two months of a four-month sentence and received three years’ felony probation for violating Persky’s order.
The Vote No campaign says that Gunderson successfully completed the terms of his probation in August 2018 and that the court congratulated him for turning his life around. Dauber disputes this rosy portrayal of a case that began with a college linebacker allegedly strangling his girlfriend. “Judge Persky did this kid no favors. He let him wander around unsupervised so he could go pursue, as his lawyer put it, a ‘once-in-a-lifetime’ opportunity to play football,” she says. “The DA admits that the court has gone out on the limb for this offender given the seriousness of this case and that’s why he ended up in jail. Judge Persky did not improve Gunderson’s life.”
Persky, a liberal judge in one of California’s most liberal counties, would seem an unusual candidate for a recall. His defenders argue that the move sends a chilling message to judges across the state. Santa Clara deputy district attorney Roderick O’Connor referred to the recall effort as a “lynch mob” in a Washington Post op-ed and one of Turner’s attorneys, Martin Sabelli, says that the recall effort created “a mob, vengeance-like mentality that is being generalized on Judge Persky.”
“As long as that judge stayed well within the framework as what seemed to be the case here, there is not an additional remedy of lynch mob by social media,” Don Bosch, a Knoxville criminal defense attorney says. “That is not a fair response. You don’t shoot the messenger and that’s exactly what they’re doing to Judge Persky.”
Dauber disagrees. “I’m not sure there is anything less mob-like or more democratic than acquiring 95,000 signatures to start a recall campaign,” she says. “A lynching is an act of complete lawlessness or use of violence to defeat a prescribed legal process. That’s literally the opposite of what is going on here, not to mention how offensive it is to compare this to victims of actual lynchings.
"Judge Persky does not take sex crimes and violence against women seriously. What woman wants to have their sexual assault case adjudicated by Judge Persky? What do they want their slogan to be? Vote Persky: It was only attempted rape and penetration with a foreign object!”
The public debate produced some bizarre and frightening theater. Dauber received multiple rape threats through the mail, one of which contained a white substance that forced Stanford to evacuate parts of the law school (a 24-year-old Massachusetts man was later arrested on five counts of mailing threatening communications). Before the man was arrested, Cordell claimed that the incident had “all the hallmarks of a publicity stunt.” The Vote No team claims that several of their supporters have been criticized, often publicly, for not falling in line and betraying feminism by supporting Persky.
One voice rarely heard in the debate is Persky’s. He limited his appearances to one press conference and exclusive interviews with the AP and CNN (Persky declined to comment to SI.com through Cordell). He has avoided talking about the Turner case specifically because it remains on appeal, but he says he received an encouraging letter from Alaleh Kianerci, the prosecutor in the Turner case, who indicated that she did not think Persky should be recalled. In his statements, Persky stuck to standard talking points about how difficult the process has been on his family, what he perceives as a threat to judicial independence and how he bemoans that his reputation is one of not caring about victims of sexual assault and domestic violence. Persky was removed from a June 2016 sexual assault case at the request of district attorney Jeff Rosen, who had issued a scathing public rebuke of the Turner sentence, but Rosen has said that he opposed the recall because the local bar and California State Commission on Judicial Performance had found no pattern of bias.
Of the successful recall, Cordell, says, “I’m hopeful that this not a trend. This was a campaign run on emotion and dishonesty. I was the first black woman judge in this county. I’ve tried to fix this broken system. It just saddens me that this has happened to a good and decent judge.”
For Monica Burneikis, it’s the broader implications of the recall that matter most. “The Turner sentence was completely lawful,” she says. “But it was grossly lenient under the circumstances. This involved an unconscious woman who was sexually assaulted and a man who was convicted of the crime. Judge Persky made the decision to sentence that convicted criminal to half of one year. We have to ask why. Judge Persky said one of the reasons he chose to issue such a light sentence is that a prison sentence would have had a severe impact on Turner. But what about the impact that this had on Turner’s victim? Isn’t she entitled to justice? As a society we need to look to uphold and to impart justice and Judge Persky’s ruling clearly did not meet this standard. In my opinion, if a sitting judge can’t see that justice be served then he should not serve in our judicial system.”
