- Michele Landis DauberStanford law professor who is leading the recall campaign against Aaron Persky, the Santa Clara County Superior Court judge who sentenced Brock Allen Turner, a former Stanford University swimmer convicted of sexually assaulting an unconscious woman, to six months in county jail.
- Sajid Khanpublic defender in San Jose, California. He led the effort in support of Santa Clara County Judge Aaron Persky.
California lawmakers voted Monday to pass a law requiring prison time for those convicted of sexually assaulting an unconscious victim. This comes after news that California Judge Aaron Persky will no longer hear criminal cases, following outrage over lenient sentences he handed down to sex offenders. Persky became the subject of a recall campaign after he sentenced Stanford University swimmer Brock Turner to a six-month prison term for sexually assaulting an unconscious woman behind a dumpster. Judge Persky said he was concerned a longer prison sentence would have a “severe impact” on Turner. Turner is white, and Judge Persky has since given a harsher sentence to a Latino man who committed a similar crime. Turner is set to be released from Santa Clara jail on Friday, after serving only half of his six-month sentence. More than 1 million people have signed a petition demanding Persky be removed from the bench. But supporters of Judge Persky caution that efforts to recall a jurist based on his use of judicial discretion may have unintended consequences, leading to less care in sentencing and a negative impact on people of color. For more, we host a debate. Michele Landis Dauber is a Stanford law professor who is leading the recall campaign against Aaron Persky. Sajid Khan is a public defender in San Jose, California, who leads the effort in support of Santa Clara County Judge Aaron Persky.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman. California lawmakers voted Monday to pass a law requiring prison time for those convicted of sexually assaulting an unconscious victim. This comes after news that California Judge Aaron Persky will no longer hear criminal cases, following outrage over lenient sentences he handed down to sex offenders. Persky became the subject of a recall campaign after he sentenced Stanford University swimmer Brock Turner to a six-month prison term for sexually assaulting an unconscious woman behind a dumpster. Judge Persky said he was concerned a longer term would have a serious impact on Turner. Turner was caught by two witnesses thrusting on top of the victim as she lay unconscious behind a dumpster. Turner is white, and Judge Persky has since given a harsher sentence to a Latino man who committed a similar crime.
More than 1 million people have signed a petition demanding Persky be removed from the bench. He will be reassigned to a civil court in San Jose, at his own request. In a statement to Democracy Now!, Judge Persky said, quote, “I believe strongly in judicial independence. I took an oath to uphold the Constitution, not to appease politicians or ideologues. When your own rights and property are at stake, you want the judge to make a fair and lawful decision, free from political influence. … As a judge, I have heard thousands of cases. I have a reputation for being fair to both sides,” he said.
Turner is set to be released from Santa Clara jail on Friday, after serving half of his sentence. Activists plan to protest across the street from the jail on the day of Turner’s release. This comes as people point to another case in which they allege bias by Judge Persky. In 2015, 21-year-old college football player Ikaika Gunderson pleaded no contest to felony domestic violence for assaulting his ex-girlfriend. He faced up to four years in prison. Judge Persky delayed sentencing for a year to allow Gunderson to attend college at the University of Hawaii.
But supporters of Persky caution that efforts to recall a jurist based on his use of judicial discretion may have unintended consequences, leading to less care in sentencing and a negative impact on people of color.
For more, we’re joined by two guests. Michele Landis Dauber is a Stanford law professor leading the recall campaign against Judge Persky. And Sajid Khan is with us, a public defender in San Jose, California, who leads the effort in support of Santa Clara County Judge Aaron Persky.
We welcome you both to Democracy Now! Let us begin with Michele Landis Dauber. We spoke to you when you began your campaign. Explain your response to the judge’s decision to take himself off of criminal cases, and the law that has been passed as a result of the case that you were so deeply concerned about.
MICHELE LANDIS DAUBER: Well, we are continuing the recall, Amy, because this is a voluntary, temporary reassignment that the judge has requested, and judges are reassigned annually in Santa Clara County Court, and he can return to the criminal court later, when he chooses to do so. And, in addition, we believe that this judge is biased in the area of sexual assault and violence against women. And many issues like sexual harassment in the workplace or educational sexual assault, molestation by teachers, these kinds of issues are still heard in the civil court. And we feel that that bias is not a good thing in the civil court, either.
AMY GOODMAN: Very quickly, explain the case at the heart of the recall that so motivated you to make the move that you did.
MICHELE LANDIS DAUBER: Well, in the Turner case, which I assume is the case that you’re referring to, Judge Persky gave a sentence that we believe is overly lenient. And in order to do that, he had to make a finding on the record that this was an unusual case and that the interests of justice required that he grant Mr. Turner probation rather than the minimum two-year sentence. We don’t believe that the interests of justice required, in any way, that he make that exception for Mr. Turner, and we think that the two-year minimum sentence would have been far more appropriate.
And since that time, we’ve, of course, learned about many other cases that show what we believe is a clear pattern of bias, a blind spot, if you will, that this judge has in cases of violence against women—for example, the case of Mr. Gunderson that you just mentioned. And in that case, I think—I think that may, in fact, be worse, in many ways, than the Turner case, because in that case it appears that the judge sent Mr. Gunderson to another state—that is, to the state of Hawaii—without following the Interstate Compact for Adult Offender Supervision and without informing the state of Hawaii that Mr. Gunderson, as a convicted domestic violence felon, was even located within the state. He wasn’t on probation. He didn’t have to report to anyone. No one knew he was there. He left that state, went to another state, Washington, where he apparently reoffended. So, we just feel that, particularly with collegiate athletes, this judge just has a blind spot. He doesn’t see these as the serious felonies against women that they are, and treats them like misdemeanors.
AMY GOODMAN: You have alleged that Judge Persky broke the law?
MICHELE LANDIS DAUBER: Well, we do think that the attorney general and the commission that enforce the adult offender supervision compact should investigate and get to the bottom of this situation, because it is not lawful, in fact, for an offender, a felony convicted offender, like Mr. Gunderson, to leave the state of California, except under the supervision of this compact. This is a 50-state compact, and it has the force of federal law, and it is also part of the California Penal Code. So, it is very improper to do this. I don’t think it was appropriate, and I actually think there are real questions about whether it was lawful, yes.
AMY GOODMAN: Sajid Khan, you’re leading the effort against the recall. Explain why.
SAJID KHAN: I just think that the recall effort is misguided and shortsighted. I think that we, as a community, when we attempt to recall Judge Persky, are sending the message that we want our judges to be more harsh and punitive rather than being merciful and compassionate. We don’t see recall efforts at all when it comes to judges that impose what we believe to be disproportionately harsh sentences on clients of mine, public defender clients, minorities, in our system. But here we have a scenario where Judge Persky exercised discretion, afforded to him within the law, to see Brock Turner for more than the crime—more than just the crime he committed. And we saw Judge Persky exercise that discretion with a certain sense of mercy for Brock Turner. And we want to encourage that type of holistic, humane approach to sentencing, rather than the one-size-fits-all sentencing schemes that have plagued our country. And so, ultimately, I’ve taken the stance so that we, as a community, encourage judicial discretion, compassion and mercy, rather than discourage it.
AMY GOODMAN: So, Brock Turner was convicted in March of three felony counts: assault with the intent to commit rape of an unconscious person, sexual penetration of an unconscious person and sexual penetration of an intoxicated person. At his sentencing, the Stanford swimmer faced up to 14 years in prison. Prosecutors sought a six-year term. He got six months. He served three months, and he’s being released on Friday. Talk about why you think that’s fair, Sajid.
SAJID KHAN: You know, the headlines when we—when this news broke about Brock Turner captured exactly what you just said, which was felony—you know, rapist gets six months in county jail. And that is a—those were misleading headlines. It didn’t capture the totality of the sentence that Brock Turner received. He’s a convicted felon, something that he can’t shake for the rest of his life. He has to register as a sex offender for the rest of his life, whether that be here in the state of California or anywhere else. He’s on felony probation for three years, which means that he’s supervised by a probation officer, and if he violates his probation by committing a new offense or by not doing what he’s directed to do, he can still go to prison for up to 14 years.
And here we had someone who was a young man who had no criminal history, who was in school and had shown himself, beyond the crime, to be a capable member of the community. And so, this is the exact type of offender, even despite the severity of the crimes that he was convicted of, that merited probation and the opportunity to rehabilitate himself in the community, rather than being sent to prison. So, when we look at it holistically, we see that it was a harsh penalty, a harsh sentence, and it was not lenient, as many perceive it to be. And it did take into account, again, Brock Turner’s humanity and not just the crime that he was convicted of.
AMY GOODMAN: Professor Dauber, your response?
MICHELE LANDIS DAUBER: Well, obviously, we just have to see this differently, and we disagree. I want to say that I have the utmost respect for the Public Defender Service. I think that they are, you know, typically speaking, doing fantastic work for low pay, and I support them wholeheartedly. We just part company on this issue. We do not agree that this sentence was appropriate. And I want to say, I am no fan of harsh sentencing for nonviolent minority drug offenders, you know, that have really fed our mass incarceration problem. I’m typically not a fan, for example, of mandatory minimums.
But with judicial discretion and judicial independence, you know, these are very important things, but they come with the obligation, the very important obligation, to act without bias. And we feel strongly that violence against women is a serious, serious crime and that Mr. Turner was a very, very unlikely candidate for the kind of low exception sentence that he received. He did not plead guilty. He never took full responsibility for the crime. He never really accepted the jury’s verdict. He never expressed remorse for the crime that he actually committed, which was sexual assault. On every dimension, he was not, in our opinion, a typical or good candidate for this kind of leniency. And so, we just, you know, strongly disagree that this was an adequate sentence.
AMY GOODMAN: Sajid Khan, can you respond to Professor Dauber and her arguments?
SAJID KHAN: Yeah. I mean, my concern here is that we, as a community, have accepted the notion of more prison time or prison time being the answer to all criminal behavior, even serious criminal behavior like sexual assault. And so we tend, as a community based on the—based on the system of mass incarceration that we’ve essentially existed in for so long, to equate justice to the amount of time that someone is incarcerated for. And I just think that’s the wrong metric; I think it’s the wrong measure of justice.
And so, I do think that even with crimes like sexual assault, even with the crimes that Brock Turner was convicted of, there still has to be room within the law—and there is room within this particular law—for a judge like Judge Persky to see that there may be mitigating circumstances that merit someone being—merit someone getting probation rather than prison. And I want to—I want us, as a community, to encourage that use of discretion and encourage the individualized assessments of offenders, rather than this, again, one-size-fits-all approach to criminal behavior and sentencing. So—
AMY GOODMAN: I wanted to turn for a moment to the defining moment in the Brock Turner case, the reason this case, I think, became so well known, and that is the victim impact statement. The statement is over 7,000 words long, condemns the role of privilege in the trial and the way the legal system deals with sexual assaults. It’s since gone viral, with over 10 million views. The statement is addressed directly to the defendant, Brock Turner. The person who was raped—and she said, “You don’t know me, but you’ve been inside me, and that’s why we’re here today.”
The victim, often referred to as Emily Doe, went on to write, “My life has been on hold for over a year, a year of anger, anguish and uncertainty, until a jury of my peers rendered a judgment that validated the injustices I had endured. Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public. He pushed me and my family through a year of inexplicable, unnecessary suffering, and should face the consequences of challenging his crime, of putting my pain into question, of making us wait so long for justice.
“I told the probation officer I do not want Brock to rot away in prison. I did not say he does not deserve to be behind bars. The probation officer’s recommendation of a year or less in county jail is a soft timeout, a mockery of the seriousness of his assaults, an insult to me and all women. It gives the message that a stranger can be inside you without proper consent and he will receive less than what has been defined as the minimum sentence. Probation should be denied. I also told the probation officer that what I truly wanted was for Brock to get it, to understand and admit to his wrongdoing.
“Unfortunately, after reading the defendant’s report, I am severely disappointed and feel that he has failed to exhibit sincere remorse or responsibility for his conduct. I fully respected his right to a trial, but even after twelve jurors unanimously convicted him guilty of three felonies, all he has admitted to [doing] is ingesting alcohol. Someone who cannot take full accountability for his actions does not deserve a mitigating sentence. It is deeply offensive that he would try and dilute rape with a suggestion of 'promiscuity,'” she said.
When you hear that, Sajid Khan, as we wrap up this discussion, do you understand the anger of the people who have called for the judge’s recall?
SAJID KHAN: Sure, I understand it. I understand it completely, and I have empathy for Ms. Doe and what she endured. My concern is that we, as a community, need to have a thoughtful response to this sentence and this case, that not only takes into account this particular victim and particular offender, but also takes into account the—our system generally. And our—I think our system generally benefits from judicial discretion, judicial compassion and mercy, rather than mandatory minimums and the—again, the metric that prison time equals justice. And I don’t think that’s what we—what we want to—it’s not the message that we want to send to our community. And I think that’s the message that the recall effort does send, is that we want our judges to err on the side of being more harsh and more punitive rather than exercising that mercy. And that’s something that our community does’t benefit from.
AMY GOODMAN: And where, Professor Landis Dauber, does the recall go from here, in the last 30 seconds?
MICHELE LANDIS DAUBER: We are going to be holding a rally to protest the short sentence given to Mr. Turner. That will be Friday morning, as he is released. And then we are going to continue to bring forward research about his record in sex crimes—the judge’s record—as in the Gunderson case and in the Robert Chain child pornography case, that was also a couple weeks ago, in order to educate voters so that they can examine his record and decide if they want to select another candidate in the election, that I hope we’ll be having in November of 2017.
AMY GOODMAN: And each of you, 10 seconds—the law that was passed, that was introduced by the Legislature on Monday, are you satisfied with it? Professor Dauber?
MICHELE LANDIS DAUBER: Well, I don’t oppose that change. I think it’s a, you know, sort of a commonsense change. I don’t think that assault of an intoxicated person should be treated differently than assault through force. So, you know, it seems fine to me. I think, in general, our rape law is antiquated and could use a sort of a generalized overhaul.
AMY GOODMAN: And Sajid Khan?
SAJID KHAN: I just—I just have concerns about kind of swinging the pendulum back towards mandatory minimum sentences. I think it’s a slippery slope. And it’s actually something that we’ve been working hard to counter, and I think we don’t want to go back down that path of mandatory minimums, that essentially have resulted in our mass incarceration epidemic.
AMY GOODMAN: Just to repeat, California lawmakers voted Monday to pass a law requiring prison time for those convicted of sexually assaulting an unconscious victim. I want to thank you both for being with us, Michele Landis Dauber, Stanford law professor, and Sajid Khan, Santa Clara public defender, leading the effort in support of Judge Persky.
SAJID KHAN: Thank you.
AMY GOODMAN: This is Democracy Now! When we come back, we head back to Washington. Could polling places be hacked on Election Day? Stay with us.
AMY GOODMAN: “Stay Gold” by First Aid Kit. It’s one of the songs in the documentary The Hunting Ground, which documents how colleges and universities across the country are covering up sexual assaults and failing to protect students from repeat offenders.