Judge Persky's sentencing of Brock Turner was consistent with other cases in which he appeared to favor athletes and other relatively privileged individuals accused of sex crimes or violence against women. It is important to note that Judge Persky was only assigned to the criminal court in Palo Alto in January 2015. With the exception of the De Anza case, all of the below-described cases occurred over an approximately 18-month period that ended when Judge Persky returned to civil court on August 26, 2016, just as the newspaper article about the Gunderson case (see below) was going to press.
Four Days for Felony Child Porn.
Compared with other judges in Santa Clara County, Judge Persky’s sentences for at least one sex crime – child pornography -- stand out as very lenient. In 2015, Judge Persky sentenced Robert Chain who was convicted of felony child pornography to only 4 days in jail. Chain, who is white, was convicted of having dozens of highly disturbing images of very young girls ages 18 months to 4 years being penetrated or in sexual situations. Like Gunderson, this was not a plea bargain with the DA but was an offer made by Judge Persky himself. Even more disturbingly, Judge Persky offered to reduce Chain’s felony conviction to a misdemeanor after only one year of probation – against the recommendation of the probation report. Even two public defenders who support Judge Persky characterized this sentence as unusually short, with one calling it “eye-raising” and saying that the 4-day sentence was more appropriate for minor offenses like disturbing the peace or public intoxication, not felony child porn which he called “a step up from that.” As this analysis shows, every other judge in Santa Clara County sentenced defendants to 6 months for this crime and no other judge offered to reduce the conviction for this serious child sex offense to a misdemeanor after only one year of probation.
Sending a Football Player Who Severely Beat His Girlfriend and Pleaded to Felony Domestic Violence to Hawaii So He Could Play Football With No Notice to the State of Hawaii in Violation of Federal and State Law.
In 2015 Judge Persky allowed a college football player, Ikaika Gunderson, who was convicted of felony domestic violence for severely beating and choking his ex-girlfriend and pushing her out of a car, to leave the state to play for the University of Hawaii without notifying the state of Hawaii. Judge Persky did not place Gunderson on probation and he was completely unsupervised. Judge Persky also offered to reduce Mr. Gunderson’s felony to a misdemeanor after a year of football if he completed a domestic violence class and went to some AA meetings. These terms were set by Judge Persky, not the district attorney, according to Deputy District Attorney Brian Welch. Mr. Gunderson’s lawyer stated to the press that Judge Persky did not want Mr. Gunderson to lose his “once in a lifetime opportunity” to try out for the football team. There was no full probation report. The DA repeatedly raised a concern about sending Mr. Gunderson out of state without notifying the probation department. Notification of the receiving state and supervision in such cases is required by the Interstate Compact for Adult Offender Supervision, which unquestionably applies to deferred sentencing arrangements like this one. During the “deferred sentencing” period, this athlete later moved to Washington State, again without any notice to that state, where he was arrested again for domestic violence against a different victim
Even one of Judge Persky’s supporters has harshly criticized his handling of the Gunderson case. Retired Judge LaDoris Cordell told Buzzfeed News that “There are so many problems with how this case was handled that I’m not even sure where to start . . . The system is set up so that if someone has admitted a violent offense and is now a convicted felon, they should be closely monitored,” Cordell said. “You don’t just cross your fingers and hope everything is going to be fine.”
Letting Another Football Player Who Committed Domestic Violence Get Away with Repeatedly Failing to Complete His Sentence While He Continued to Play Football.
Similarly, in the 2016 case of Keenan Smith, a star college football player at the College of San Mateo who was convicted of domestic violence and of knocking a Good Samaritan unconscious and threatening another bystander, Judge Persky imposed a sentence that was tailored to Smith’s football game schedule. As in Gunderson, there was no full probation report in this case. Smith failed to comply with the conditions of his probation and sentence (including not showing up for weekend work for months) and Judge Persky repeatedly failed to hold him accountable. It was not until the District Attorney took the unusual step of filing a motion to violate Smith’s probation that another judge, Judge Diane Northway, heard the matter and Smith was held accountable. Assistant District Attorney Brian Welch told the Mercury News that the new judge “agreed that enough was enough” and Smith was resentenced to spend weekends in jail.
Victim-Shaming the "De Anza Gang Rape" Victim With Revealing Photos Shown to the Jury.
Even before Judge Persky came to the criminal bench in Palo Alto at the beginning of 2015, there were troubling indicators of his problematic judgment in cases involving college athletes accused of violence against women. In another case involving collegiate athletes, Persky was the judge in the infamous “De Anza Gang Rape” case in which several members of the De Anza College baseball team allegedly gang-raped an unconscious 17-year-old girl. Persky allowed highly prejudicial and revealing photos of the victim taken nearly a year after the crime to be shown to the jury. He also barred a second victim (Jane Doe #2), who alleged a very similar crime, from testifying so the jury was not able to consider allegations that the alleged assault was part of a pattern. Judge Persky also blocked the jury from knowing that the baseball players had all taken the Fifth in their depositions.
The result of Judge Persky’s biased rulings in this case was that none of the defendants were found liable and one juror left the courtroom saying that “She came there kind of looking for it,” while another juror said that the unconscious victim hadn’t been totally “comatose”, so “she was just having a good time.” Her lawyers called the impact of the photos “prejudicial” and questioned other rulings by Persky that, according to Barbara Spector, one of the lawyers for the victim, “favored” the defendants. Monica Burneikis, another of the victim’s lawyers, told NBC that “it seems that Judge Persky’s focus is not seeking justice for the victim but rather on protecting the perpetrator.”
Approving a Plea Deal for a Cisco Engineer Who Savagely Beat his Girlfriend to do Minimal Weekend Jail Despite the Victim's Strenuous Objections.
Judge Persky has exhibited bias in other domestic violence cases. On the same day that Judge Persky sentenced Brock Turner, he also sentenced Cisco Systems engineer Tony Chiang to minimal ‘weekend’ jail time for felony aggravated battery against his fiancé. He punched her in the head, pulled out fistfuls of her hair, and left her bloodied and bruised. Chiang faced four years in prison. The victim's injuries were very serious and she objected strongly to the plea deal, saying that she was being denied justice because she was an immigrant with limited financial and other resources. Judge Persky agreed to postpone Chiang's plea for months so that he could avoid the possibility of jeopardizing his H1 visa due to having a felony domestic violence conviction even though the violence against his victim was very severe and disturbing. As in Gunderson and Smith, Judge Persky was not following a recommendation of the probation department because there was no full probation report in this case.
Bending Over Backwards to Help Turner.
A comparison with a case involving a disadvantaged defendant helps to illustrate the bias Judge Persky showed toward Brock Turner. Judge Persky approved a plea deal that included a sentence of three years in prison for a low-income Latino defendant charged with similar crimes to Brock Turner. Like Turner, Ramirez had no serious criminal history. Unlike Turner, the Latino defendant was extremely remorseful, apologized, and admitted it was wrong. He pleaded guilty to a crime that carried a mandatory minimum of 3 years. While these two cases have some similarities and differences, the contrast between them serves to illustrate the extent to which Persky abused his discretion in order to ensure that Turner avoided a prison sentence.
In Turner’s case, Judge Persky had famously remarked Turner should not be sentenced to prison because it “would have a severe impact” on him. By contrast, according to the Guardian newspaper, Assistant DA Terry Harman said that Judge Persky "agreed with the prosecutors’ position throughout the process – that Ramirez should receive a state prison sentence." We have no quarrel with the Ramirez sentence. But while Judge Persky was required to sentence Mr. Ramirez to three years, he was not required to sentence Mr. Turner to only 6 months -- and he served just 90 days.
In fact, as retired Santa Clara County Judge Ron Del Pozzo stated, Mr. Turner's crime of assault with intent to commit rape was presumptively a case that should have resulted in a prison sentence by law. Instead he received what Judge Del Pozzo described as a "misdemeanor sentence of 6 months" for three felonies, a sentence Judge Del Pozzo said he had never seen in his nearly 30 years as a prosecutor and judge. Judge Persky based his decision to give Turner that misdemeanor sentence on factors like the fact that Turner had lost a valuable Stanford swimming scholarship, and stated that Turner's failure to take responsibility and express remorse for the crime of sexual assault was understandable. Persky decided to abuse his discretion to help Turner avoid the prison sentence of at least 2 years specified in the law and he did so despite knowing that the less advantaged Ramirez would be spending 3 years in prison even though he pleaded guilty, took responsibility, and was very remorseful for similar crimes. This is inequitable and Judge Persky should not have bent over backwards to keep Turner out of prison.
Other Judges Criticize the Turner Sentence.
Even some of Judge Persky's friends think that Persky's sentence in the Brock Turner matter was a problem. Former Judge LaDoris Cordell stated on television that the Turner sentence was the result of “white privilege,” and said, “if you have those biases and you’re a judge, that’s very dangerous.” And former Judge Ron Del Pozza said, "I was surprised at the sentence, because the jury returned a verdict and the verdict that they returned would have generally sent the person to prison for what I believe would have been a 4 to 6 year term -- so a 6 month sentence was not something that I would have expected the judge to give based on what the jury found to be true at the trial. It was inconsistent with the jury verdict based on other people who have been tried for similar offenses and sentenced for similar offenses in my 30 years or 26-7 years of being around Santa Clara County. And to not only give him probation but not even give him the maximum one year -- I mean you see people get a year for the first residential burglary without any history, you see people get a year for having several DUIs behind them and having a 4th. And so it was inconsistent with the jury verdict.” If these are the views of Judge Persky's supporters, then the public is justified in voting him off the bench.