PALO ALTO -- In a sign of growing problems for the judge who ignited a national controversy by handing a light sentence to a former Stanford athlete convicted of sexually assaulting an unconscious intoxicated woman, prosecutors Tuesday got him kicked off another sex case.
Santa Clara County prosecutors filed the peremptory challenge against Judge Aaron Persky on Tuesday morning, automatically preventing him from presiding over a preliminary hearing for a Kaiser Permanente surgical nurse accused of sexually assaulting a sedated woman.
The move came the day after Persky took the unusual step of dismissing an unrelated misdemeanor case Monday -- in mid-trial. But the controversy first began earlier this month, after Persky sentenced former Stanford swimmer Brock Turner to six months in jail for sexually assaulting a young woman outside a campus frat party, sparing him from a prison sentence sought by prosecutors. The light sentence sparked global outrage and a looming recall threat after the victim's emotional 12-page impact statement went viral.
"We are disappointed and puzzled at Judge Persky's unusual decision to unilaterally dismiss a case before the jury could deliberate,'' District Attorney Jeff Rosen said in a written statement. "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.''
Rosen called his decision to have the judge removed from the sexual battery case "a rare and carefully considered step for our office.'' But he did not rule out moving to have the judge removed from other upcoming cases.
"In the future, we will evaluate each case on its own merits,'' Rosen said, "and decide if we should use our legal right to ask for another judge in order to protect public safety and pursue justice."
A spokesman for the court said Persky and Presiding Judge Rise Pichon cannot comment on pending cases.
In the sex case Persky was removed from Tuesday, surgical nurse Cecil Webb, 54, is charged with one felony count of sexual battery of a hospitalized person for allegedly touching the genitals and breasts of a woman who was under light sedation in 2014 at Kaiser Permanente's Santa Clara Medical Center.
"It is one of those situations where we think the victim is particularly vulnerable,'' said Stacey Capps, the office's chief trial deputy, drawing a parallel with Turner's victim.
In Turner's case, a jury found him guilty after deliberating for less than two days of assault with intent to commit rape and two counts of digital penetration of a 22-year-old woman, who was out cold when two bicyclists discovered him on top of her in the middle of the night behind a dumpster outside a KA frat party. The jury took less than two days to find him guilty.
Late last week, jury selection began in the misdemeanor trial that Persky dismissed Monday. Rachel Garcia, 35, was charged with possession of stolen property, namely credit card promotional checks that had been mailed to two San Jose residents and wound up in her purse.
From the beginning, the trial -- Persky's first since the Turner case -- was atypical. At least 10 prospective jurors refuse to serve, citing their objections to Persky's leniency toward Turner.
A jury was ultimately seated and heard the prosecution's case, including testimony by the San Jose residents whose mail was found in Garcia's possession. One testified that packages had been stolen from him around the same time Garcia was arrested in late July 2013 for having stolen mail.
After the prosecution presented its case, the defense took the usual step of filing a motion to have the charge dismissed. The majority of such motions are not granted. In the last 150 misdemeanor trials in Santa Clara County, judges granted two, said James Leonard, the supervising district attorney in charge of the central misdemeanor team.
But Persky dismissed the charge, which is akin to an acquittal and cannot be appealed, Leonard said.
The judge cited a 1997 appellate case that he said required the mail to have been recently stolen. Prosecutors claim he misread the decision. In any case, they said, the checks had not yet expired and were therefore recent.
Garcia was represented by an attorney assigned by the Independant Defense Counsel Office (IDO), which represents indigent defendants. The director of the office, Sylvia Perez-MacDonald, defended Persky and questioned whether prosecutors would have been as concerned about the dismissal if they weren't already upset about Turner's sentence.
"The judge's decision (regarding the dismissal) reflects his obligation to follow the law,'' she said, "and remain neutral despite public opinion.''
Originally posted by The Mercury News
By Tracey Kaplan
Click here to read the original article