Papering Persky
Judge Aaron Persky now has to deal with the fact that prosecutors don’t trust him.
Santa Clara County prosecutors on Tuesday blocked Superior Court Judge Aaron Persky from hearing another sex crime case, citing his decision in the Turner case.
“We are disappointed and puzzled at Judge Persky’s unusual decision to unilaterally dismiss a case before the jury could deliberate,” Dist. Atty. Jeff Rosen said. “After this and the recent turn of events, we lack confidence that Judge Persky can fairly participate in this upcoming hearing in which a male nurse sexually assaulted an anesthetized female patient. In the future, we will evaluate each case on its own merits and decide if we should use our legal right to ask for another judge in order to protect public safety and pursue justice.”
They can do that.
California court procedures allow prosecutors or defense lawyers to file a motion to remove a judge from a case and have it reassigned to another jurist.
Legal experts described the move, known as papering, as unusual but hardly unheard of.
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Prosecutors sought to have Persky removed after several jurors refused to serve in the judge’s courtroom because of his actions in the Turner case.
Persky could not be reached for comment.
An effort to recall Persky is gaining steam, with several political groups vowing to raise money for the campaign.
One of the jurors who voted to convict Turner of sexual assault wrote a letter to Persky saying he was “absolutely shocked and appalled” at the six-month sentence.
Some legislators are saying the laws on rape need updating.
I’m glad the victim is getting to see (albeit indirectly) some community support, in the form of condemnation of the judge who served her so poorly. I hope it continues.
I expect the judge never thought he’d face any consequences. It’s good to see so many people refusing to accept an unjust judge.
I have mixed feelings about what should happen here.
I think that this particular development, of prosecutors striking Judge Persky from particular cases (i.e. sex crimes, or perhaps cases involving privileged young men), is fine. It’s some of the other measures being discussed that are troubling.
For example, the recall petition. I don’t even like the idea of electing judges to begin with, because I don’t want judges feeling pressured to do what’s popular or will look good in a news story or a campaign ad. Sometimes following the law means doing things that the public either doesn’t understand, or does understand and hates: excluding evidence based on so-called “technicalities” (like, you know, the 4th and 5th Amendments), upholding the 1st Amendment rights of awful people to express offensive views, slapping down elected local school boards that want to teach creationism or mandate prayer in public schools, etc. Just because I’m part of the public outcry on this one doesn’t mean the principal should change. I think it’s a dangerous precedent to recall a judge over a single decision, one that isn’t the result of corruption or outright refusal to apply the law, but rather a lousy exercise of the discretion granted to him by the law. Federal judges aren’t elected, and aren’t subject to recall (only impeachment by Congress, which is supposed to be only for bad behavior, not bad decisions), and that seems to work out fine.
The article mentions the phenomenon of “blanket papering” — where an entire DA’s office refuses to let a particular judge hear any criminal case — something that can force a judge to be reassigned. The example from Orange County shows why that’s troubling, too: the OC prosecutors did it to get rid of a judge who was asking too many questions about that office’s possibly illegal use of jailhouse informants.
Bear in mind that the last I read, the prosecutors here elected not to try to get relief from the Court of Appeal on Turner’s sentence. My understanding is that this would have been a very uphill battle given the discretion that trial judges have, but if the decision is outrageous enough to justify papering, I don’t know why you wouldn’t take a shot at a writ.
I’m sure the laws need updating. But what definitely needs updating is Persky.
I do take the point that it would damage the rule of law if judges had to be afraid of making unpopular decisions. But this isn’t really that. This is a judge making an unethical decision. And I seem to remember seeing somewhere that it doesn’t even meet California minimum sentencing requirements. I mean, siding with the perp when there’s not a shred of extenuating evidence ignored by the jury? Unless you count his dad who feels that how long a crime takes is really the most important factor. (Pro tip: always commit murder with a single well-placed gun shot. Not strangling.)
quixote,
What makes the judge’s decision “unethical”? I assume that you are using that in the colloquial sense of “a decision that I think has a bad moral outcome,” rather than accusing the judge of violating an actual ethical rule to which judges are bound. But isn’t every “incorrect” sentencing decision an “unethical” one in that sense?
I think your recollection is wrong. I haven’t seen any reason to believe that the judge’s ruling violated the law. The LA Times article linked in the OP notes “Legal experts have said the sentence was within the law but lighter than normal for such cases.” That’s consistent with every description I’ve seen. Remember, the probation report also recommended lenient treatment here, either identical to or very close to what the judge decided.
In fact, the DA’s office — the same office that is excoriating the judge in public — admits that it was within the bounds of the law. Sorry I don’t have a link for this, I’m reading from a physical newspaper, the Los Angeles Daily Journal of June 9, which quotes an email from assistant district attorney David Angel:
Other criminal law attorneys quoted in the article note that, although they agree that the decision was within the bounds of the law, they did think the DA could still challenge it as an “abuse of discretion.” Basically, the distinction is that if a judge does something that the law does not allow him or her to do, that’s a legal error. If the judge does something that the law empowers him or her to do, but that is blatantly inappropriate in this particular case given the facts, that’s an abuse of discretion.
Abuse of discretion is a really tough standard to meet. Appellate judges generally don’t like to second-guess trial judges. But I confess that I’m baffled why the DA wouldn’t take a run at it here — obviously they aren’t worried about offending the judge.
Screechy Monkey – I believe you are essentially correct about the legality. The punishment handed down was well below the minimum sentence (6 months as opposed to 6 years IIRC), which was justified on the basis of exceptional circumstances (or whatever the phrasing in the Statute is).
What has so many people riled is that clearly a large plurality (at least) feel that the Judge was blowing it out his arse when he used his discretion. I really don’t understand a DA not appealing, but then using an administrative tool like this. Then again the DA is elected, so maybe this is a way of deflecting some of the negative publicity with an eye to the next election.
I think publicly electing judges, DA’s or any law enforcement officer is a moronic thing to do, but that’s another argument.
Fixed sentencing laws have been disastrous. But the judicial flexibility we want is hazardous in the wrong hands. There’s a steady flow of horror stories about inept, corrupt, viciously prejudiced judges.
I had not known of ‘papering’ as a tactic. And my first, positive, reaction has been muted by the notion that potentially incompetent or criminal DA’s can exercise this ‘meta authority.’
One other note: the D.A.’s decision to “paper” Pansky was apparently also motivated by his recent ruling on a motion to dismiss in a misdemeanor theft case. It’s obliquely referenced in the article linked in the OP (in the quote from the DA about “Judge Persky’s unusual decision to unilaterally dismiss a case before the jury could deliberate”).
I don’t know anything more about that ruling, so I can’t comment on whether I think it was reasonable or not. But the point is that there’s something else going on here other than just the Turner decision. The DA’s office may be hoping to pressure Pansky into avoiding any pro-defendant rulings, which might be fine if we’re talking about giving light sentences to rapists, but maybe not in general.