Ethics/Professional Responsibility
Aug. 26, 2016
Ethics experts decry calls to oust Persky
Embattled Santa Clara County Superior Court Judge Aaron Persky's recusal from a child pornography case has reinvigorated critics seeking the judge's removal from the bench for what they believe to be a compromised ability to rule on cases involving sexual violence.
Daily Journal Staff Writer
SAN FRANCISCO — Embattled Santa Clara County Superior Court Judge Aaron Persky's recusal from a child pornography case has reinvigorated critics seeking the judge's removal from the bench for what they believe to be a compromised ability to rule on cases involving sexual violence.
But despite a sustained public outcry, which took the form of a protest Wednesday outside a meeting of the Commission on Judicial Performance, legal ethics experts are united in their staunch support of judicial independence.
Persky had been expected to hand down a sentence Thursday on a possession of child pornography case. Last year, Persky told the convicted possessor, Robert Chain, that the conviction could be reduced from a felony to a misdemeanor if Chain stayed sober and satisfied a host of other conditions.
But Persky changed course late last week when he recused himself. In a brief statement on his recusal, Persky cited publicity surrounding Chain's case.
"This publicity has resulted in a personal family situation such that 'a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial,'" Persky wrote, referencing a section of the state's judicial ethics canon.
The case will now be heard October 6 by Santa Clara County Superior Court Judge Kenneth P. Barnum.
To Persky's critics, the recusal comes as the latest example of his unwillingness to appropriately sentence sex offenders. Persky became persona non grata when he sentenced former Stanford swimmer Brock Turner to six months in jail after finding Turner guilty of three felony counts of sexual assault.
Turner, who can complete the jail sentence in early September with good behavior, was convicted of digitally penetrating an intoxicated woman behind a dumpster.
"Why would a woman come forward when she knows the punishment will not fit the crime?" said Deborah Atkins, a nurse who attended the protest Wednesday.
The protest was led by UltraViolet, a women's advocacy group that supports efforts to recall Persky. The group is calling for the CJP to take action against Persky.
"For decades we've been asking women to come forward and trust their college, trust the judicial system and trust men," Atkins said. "But the public has lost faith in the system."
Atkins, who is black, said she would expect a person of color in Turner's position to have been sentenced to a lengthy prison term.
While outspoken members of the public continue to call for Persky's removal, ethics experts say compelling the judge to step down from the bench would represent a dire erosion of judicial independence.
"It seems wrong for the mob mentality to take over," said James A. Murphy, founding shareholder of Murphy Pearson Bradley & Feeney who defends judges in disciplinary proceedings.
"To try to put pressure on CJP to discipline or even remove a judge who is acting within his discretion is just wrong," Murphy added.
Diane L. Karpman of Karpman & Associates said she understood the protestors' position, but advised against Persky's reassignment.
"I wouldn't want to think the system would kowtow to pressure," Karpman said, adding Persky's potential reassignment has to occur when all county judges have assignments changed, not beforehand. "Otherwise it'll scare other judges who have to do the right thing."
Requests for comment on potential reassignment from Presiding Judge Rise Jones Pichon went unreturned Wednesday. Reassignments occur in January.
UC Hastings College of the Law Professor Richard Zitrin, who specializes in legal ethics, said that the notion of reassigning Persky away from the criminal calender before then carried dire consequences.
"I would prefer not to see the presiding judge do basically an emergency reassignment because that adversely affects the independence of the judiciary," Zitrin said.
Persky's seat is safe. According to a county spokeswoman, the deadline for a write-in challenge passed last week. His name will not appear on the ballot.
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