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Recall of judge in Brock Turner case stirs courtroom concern

Aaron Persky
The Associated Press

SAN FRANCISCO (AP) — The leader of the successful recall of a Northern California judge for an unpopular sexual assault sentence warned that the results show women’s rights and the #MeToo movement are now a potent political force that politicians ignore at their own peril.

“The broader message of this victory is that violence against women is now a voting issue,” said Stanford University law professor Michele Dauber, who launched the recall effort against Santa Clara County Judge Aaron Persky.

The judge sent former Stanford swimmer Brock Turner to jail, not to prison. Critics said the six-month sentence was too lenient.

But opponents of the recall warned that Tuesday’s lopsided result — Persky lost by 20 points — is also a powerful political force where it shouldn’t be: the courtroom.

“This sets a dangerous precedent for state court judges in California and perhaps beyond,” said LaDoris Cordell, a retired Santa Clara County judge who supported Persky’s campaign against the recall.

Cordell was among a number of law school professors and retired judges who fear that judges may now take public perception into account more than they should when handling high-profile and sensitive cases.

The recall effort started in June 2016 shortly after Persky sentenced Turner to six months in jail. Prosecutors had wanted a lengthy prison sentence for Turner in the sexual assault of a young woman incapacitated by alcohol.

They noted that Persky was removed from office for delivering a lawful sentence that Santa Clara County District Attorney Jeff Rosen declined to appeal. California’s Commission on Judicial Performance ruled that the sentencing was done correctly. Now, they fear, other judges in elected positions will be reticent to issue unpopular but lawful rulings.

“Subjecting judges to recall when they follow the law and do something unpopular undermines judicial independence,” Rosen said in a statement. “When judges believe that they will lose their careers for making unpopular but lawful decisions, they may lack the courage to stand up for the rights of minorities or others needing protection from powerful majorities or those with even understandably inflamed passions.”

A widely cited 2015 study of elected state judges in Pennsylvania and Washington by New York University’s law school concluded that judges are influenced by election cycles. The study found judges issued longer sentences for serious felony conviction when they were close to re-election.

“It’s very concerning if the recall become a normal tool for removing judges,” NYU law school professor Alicia Bannon said. “Following the law isn’t necessary popular and judges need some form of insulation from public perception.”

Persky declined comment Tuesday night and didn’t return phone calls from The Associated Press on Wednesday.

In an interview with AP last month, Persky said his recall threatened judicial independence.

“To get justice from a judge, they need someone who follows the rules. The basic rule is the rule of law,” he said. “The problem with this recall is it will pressure judges to follow the rule of public opinion as opposed to the rule of law.”

But Persky adopted a recommendation from the county probation department and cited Turner’s clean criminal record, age, loss of his Stanford swimming career and other factors, including the involvement of alcohol, for the short jail sentence.

Dauber said opponents’ position takes a “dim view of judicial integrity” and that she has faith judges will continue to exercise their independence regardless of the outcome. She noted that recall elections are rare.

The recall was the first of a California judge in more than 80 years. The last judge recalled in the United States occurred in Wisconsin in 1977.

For his part, Turner has to register as a sex offender for life. He lives with his parents near Dayton, Ohio.

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