Response to the Commission on Judicial Performance - Recall Judge Aaron Persky

Response to the Commission on Judicial Performance

Did the Commission on Judicial Performance “Clear” Judge Persky?

A:

No. This was a one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges. The Commission only imposes discipline in approximately 3% of cases, even though one study showed that similar states impose discipline at three to four times that rate. At the same time, the Commission refuses to provide any information about why it disciplines judges at such a low rate. In 2016, the Commission sued to block the State Auditor from completing a performance review ordered by the state legislature. As a result of this lack of transparency and oversight, the respected Center for Public Integrity recently gave California an “F” for judicial accountability in a detailed state study.

Due to the Commission’s record of protecting judges and lack of transparency, the Recall Campaign decided not to make a complaint to the Commission. Instead, we elected to take the issue directly to the people, who are the ultimate protection against judicial bias under the California Constitution.

Is the Report Accurate Regarding Judge Persky’s History of Bias in Other Cases?

A:

No. There are many significant errors in the Persky Report. For example, the Report states that Judge Persky followed probation recommendations in cases in which the referral to probation was waived pursuant to Cal. Penal Code Section 1203(b)(4), and there was no full probation report (under the law such a waiver requires the consent of the judge). As the documentation linked below shows, accurate information is readily available in public court records.

Over the past few months, the media has reported on numerous sex and domestic violence cases handled by Judge Persky. These cases demonstrate a pattern of bias by Judge Persky in favor of privileged defendants, particularly collegiate athletes such as Mr. Turner, who commit these crimes. Under Rule 111.4, the Commission has the authority to impose discipline where there is clear and convincing evidence of judicial bias. Bias can be established by examining a judge’s past similar cases to see whether there is a pattern.

Because of the Commission’s lack of transparency, it is impossible to determine from the Report what evidence the Commission considered that provided the incorrect information about these past cases. What is clear is that the Commission reported numerous key facts about Judge Persky’s past cases incorrectly and the result was that the Commission came to incorrect conclusions.

These errors are summarized in the following table and described in detail below, with links to supporting documentation.

Case The Persky Report The Facts Impact
Gunderson Judge Persky followed a probation recommendation in handling Gunderson’s case of felony domestic violence. There was no probation report prior to Judge Persky allowing Gunderson to move to Hawaii to play football, as referral to probation was waived on May 26, 2015. The Commission did not address whether Judge Persky’s lenient treatment of Gunderson so that he could continue to play football was part of a pattern of bias in cases of violence against women.
Gunderson The sentence was the result of a plea agreement. The sentence and handling of this matter was done solely in the discretion of Judge Persky according to the District Attorney and verified by court records. Gunderson, like Smith and Turner, was a collegiate athlete. The Commission failed to address Judge Persky’s decision to allow Gunderson to move to Hawaii unsupervised and without the knowledge of the State of Hawaii, which apparently violated state and federal law.
Smith Judge Persky’s sentence followed a plea agreement for domestic violence and for attacking two Good Samaritans. Judge Persky ignored Smith’s repeated violations of the terms of his sentence, and Smith was only resentenced after another judge took over the case. Smith, like Gunderson and Turner, was a collegiate athlete. The Commission did not address the question of whether Judge Persky’s lenient treatment of Smith so that he could play football was part of a pattern of bias in cases of violence against women and sex crimes.
Chiang Judge Persky followed a probation recommendation in sentencing Chiang to weekend jail for felony domestic violence. There was no probation report, as referral to probation was waived on April 8, 2016. The Commission did not address the whether Chiang’s sentence was part of a pattern of bias in cases of violence against women and sex crimes.
Chain Judge Persky followed a probation recommendation in sentencing Chain when he made an offer of court to reduce his felony to a misdemeanor after 1 year of probation. Judge Persky failed to follow the probation recommendation that reduction to misdemeanor be considered only after 2 years of probation. The DA objected to Judge Persky’s offer to speed the process, citing the probation report. The Commission did not address whether Chain’s sentence was part of a pattern of bias in cases of violence against women and sex crimes.
Ramirez Judge Persky was not responsible for Ramirez’s sentence, because another judge substituted for Judge Persky on the date of his plea. Judge Persky presided over the determination of the sentence over a year of plea hearings and negotiations. The Commission did not address whether the lack of leniency shown Ramirez was evidence of a pattern of bias in favor of privileged defendants such as collegiate athletes like Turner, Gunderson, and Smith, and elite engineer Chiang.

 

1. Gunderson. Ikaika Gunderson was convicted in 2015 of felony domestic violence in the severe beating and choking of his former girlfriend. Despite this felony conviction, Judge Persky allowed Gunderson to leave the state, without even placing him on probation or following the requirements of the Interstate Compact for Adult Offender Supervision, so that Gunderson could play football at the University of Hawaii, and indicated that at the end of a year the Judge would reduce the felony to a misdemeanor. The Persky Report incorrectly states that this was part of a negotiated agreement between the defense and the prosecution. The Report also implied that Judge Persky's handling of the case followed a probation recommendation. Neither of these are true.

First, the handling of the Gunderson case in May 2015, including the indication of the reduction to a misdemeanor, was not negotiated between the defense and prosecution, but rather was an offer of court made by Judge Persky, as evidenced by the blank plea form, and the fact that Deputy DA Brian Welch told Buzzfeed News that it was “solely within the court’s discretion to determine the sentence.”

Furthermore, there was no probation report prior to the Judge allowing Gunderson to relocate to Hawaii. The referral to probation was waived on 5/26/15. It was not until the following year after Gunderson failed all of the conditions of his court supervision and was re-arrested in Washington State for domestic violence (another state where he had no business being) that Judge Persky finally referred him to probation and shortly thereafter he was remanded into custody. By that time, the case had already been significantly mishandled, according to a former Judge.

Allowing Gunderson to leave the State of California almost certainly violated the Interstate Compact for Adult Offender Supervision. The DA specifically raised the compact more than once but the judge failed to address it correctly. The Persky Report never even mentions this issue or address the question of whether Judge Persky gave Mr. Gunderson this special deal due to the fact that he was a collegiate athlete, although Mr. Gunderson’s lawyer told the Nancy Grace show that his client was allowed to leave California because attending the University of Hawaii and playing football there was “a once in a lifetime opportunity.”

2. Chiang. Cisco Systems engineer Tony Chiang was convicted of felony domestic violence in the brutal beating of his fiance. The Report incorrectly states that the sentence of weekend jail followed the probation recommendation. As the court file clearly shows, the referral to probation was waived on 4/8/16 and there was no full probation report.

3. Chain. Robert Chain was convicted of felony possession of child pornography for possessing highly disturbing images of the sexual penetration of infants and young children. The Report incorrectly states that the sentence imposed followed the probation recommendation. In fact, it did not. The sentence was indisputably an offer of court. Judge Persky did not follow the probation recommendation and in fact he directly contradicted it. The probation department recommended on May 22, 2015 that Mr. Chain serve 2/3 of his probation prior to being considered for a reduction to a misdemeanor, however, Judge Persky decided to go against this recommendation and stated on the record that the court would “be receptive” to reducing Chain’s conviction misdemeanor after only one year in direct contravention of the probation recommendation. The DA objected to the reduction in a pleading filed on August 25, 2016 and quoted the initial probation report.

The Persky Report moreover fails to address an important fact about the Chain case, that we released evidence that over a 4 year period in Santa Clara County we found a total of 15 cases and 12 judges who handled felony child pornography cases. Of these, every defendant other than Chain received a sentence of 6 months from every other judge. As the press reported in August, only Judge Persky’s sentence for Chain of 4 days was far below this expected sentence.

4. Smith. Keenan Smith, a star running back for the College of San Mateo, was charged in August 2015 with felony domestic violence and other crimes in connection with attacking his girlfriend and two bystanders who attempted to intervene to protect her. The Report states that the misdemeanor sentence was the result of a plea deal which is correct though irrelevant. It was not the plea bargain in Smith’s domestic violence case that was the issue demonstrating bias by the judge. The issue is that Smith, like Turner and Gunderson a collegiate athlete, practically ignored his already lenient sentence (Sheriff’s weekend work program tailored to his football schedule and a 52 week domestic violence class) for seven months, and Judge Persky failed to hold him accountable. Instead the Judge continually made exceptions to allow him to continue to play football. It was not until October 2016 that the District Attorney took the unusual step of asking a different judge to examine the matter that Smith was held accountable and resentenced.

5. Ramirez. Raul Ramirez was convicted of sexual penetration with a foreign object and sentenced to 3 years in state prison. The Guardian published story regarding this case stating that Judge Persky supervised extensive year-long plea negotiations and suggesting that he did not show Ramirez the same sympathy as Turner for a similar crime despite the fact that Ramirez pleaded guilty and was remorseful. Ramirez is Hispanic and poor, as compared to the white elite Stanford swimmer. The Persky Report states incorrectly that Judge Persky was not responsible for the sentence in this case because another judge happened to substitute for Judge Persky in his courtroom on the day that Ramirez pleaded guilty. However, Judge Persky presided over lengthy (11 sessions conducted by Judge Persky that spanned an entire year, from 2/2/15 to 1/5/16) negotiations. As Deputy DA Terry Harman told the Guardian, Judge Persky "handled the [extensive] hearings and negotiations" in this case.

In sum, contrary to the Persky Report, Judge Persky did not actually follow a probation report in any of the four cases discussed in the Persky Report (the Report correctly notes that there was no probation report in the Smith case). Judge Persky could not have followed the probation reports in the cases of Gunderson and Chiang because there simply were no full probation reports in those cases. In the Chain case, contrary to the Report, Judge Persky did not follow the probation report. The opposite occurred, and Judge Persky made an offer of court for a sentence significantly more lenient than recommendation of the probation department.

In the case of Ramirez, the prosecutor has already confirmed publicly that Judge Persky was responsible for handling the plea and sentence negotiations and the court records verify that. In the case of Gunderson the Report does not even address the issue of Judge Persky’s failure to follow the Interstate Compact governing the interstate transfers of felons in order to accommodate Gunderson’s desire to play Division I football. And in the case of Smith, the Report does not address the actual evidence of bias which is Judge Persky's failure to hold Smith accountable for failing to serve his sentence for months so that he could continue to play football.

Thus, the Commission based its conclusions about Judge Persky on information that is either false or irrelevant. Once the correct facts are considered, the evidence of judicial bias is clear.

How Did the Commission Make So Many Factual Errors in its Report?

A:

We don’t know. The Commission did not disclose how it investigated the complaints nor what evidence it considered. Under Commission Rules there are two possible responses to complaints: a staff inquiry and a higher level of scrutiny called a preliminary investigation, which is used where the allegations are more serious or where the Commission intends to use subpoena power or other formal investigative procedures. It appears from the Persky Report that this inquiry was a preliminary investigation.

Despite these procedures, we do not know if the Commission issued subpoenas, what documents were reviewed, whether court files or transcripts were checked to confirm facts, or which witnesses were interviewed, if any. The Report is silent as to the evidence considered by the Commission regarding Judge Persky’s past cases and merely provides conclusory, and incorrect, statements. Based on the Report, the only witness who appears to have been contacted in connection with this inquiry is Judge Persky but we do not know what information he provided in connection with his past cases. Moreover, because the Commission refuses to provide any information to the public in connection under the Public Records Act, the Brown Act, or any other open meeting or open records law, there is no way for the public to discover this information.

Have There Been Concerns About the Commission on Judicial Performance in the Past?

A:

Yes. The Commission on Judicial Performance is a state agency that handles complaints of judicial misconduct. The Commission itself has long been the subject of serious public criticism for being nontransparent about how it makes decisions and what evidence it considers, and for failing to adequately investigate complaints against judges. According to Kathleen Russell of the nonprofit Center for Judicial Excellence, the Commission “has strayed far from its mission of protecting the public. They are simply not disciplining judges for actionable misconduct.” The lack of public oversight that the Commission provides for California’s judicial branch earned the state an “F” for judicial accountability from the Center for Public Integrity in a recent in-depth study.

In a typical year, the Commission dismisses 90% of its complaints after an initial review, and only imposes discipline in approximately 3% of complaints. Of that 3%, nearly 90% are handled through a confidential admonishment. A recent study by an independent nonprofit organization reported that the Commission’s rate of discipline is far lower than that found in other states. It is difficult if not impossible for the public to assess why the rate of discipline is so low, given that the Commission also insists that it is the only state agency that is not subject to any of California’s open records and open meeting laws. It recently refused to produce any records whatsoever in response to a request from the First Amendment Coalition.

As a result of sustained public criticism of the Commission including from “legislators, reform advocates, and even judges,” the 56 year old agency was finally ordered by the Assembly late in 2016 to undergo its first-ever audit by the state. However, before the audit began, in October 2016, the Commission sued the auditor to block it. The Chairs of the Senate and Assembly Judiciary Committees both sharply criticized the Commission’s lawsuit. Senate Judiciary Committee Chair Hannah Beth Jackson said that “no state agency is above the law, nor above its fundamental responsibility to be open and transparent to the public.” In late November 2016, Elaine Howle, the California State Auditor, responded by suggesting that the lawsuit was frivolous, and arguing that she should be permitted to conduct the review ordered by the state legislature. The case is still ongoing.