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After death threats, new rape laws, voters to finally decide if Brock Turner judge keeps job

SAN JOSE — No issue on the June ballot has attracted as much attention or been as divisive as the proposed recall of a Santa Clara County judge over the controversial sentence he gave nearly two years ago to a former Stanford athlete in a sensational sexual assault case.
There have been death threats on both sides, an impassioned statement that went viral and turned the victim into a Glamour magazine Woman of the Year, new rape laws and a legal challenge on the recall that made it all the way to the state Supreme Court. But now voters finally will decide whether Judge Aaron Persky gets to keep his job after sentencing former swimmer Brock Turner to six months in jail for sexually assaulting an intoxicated, unconscious woman. If the recall succeeds, Persky would become only the fourth judge in California history to be booted out of office before his term is up — and the first in 86 years.
Judge Aaron Persky looks on during a news conference in Palo Alto, Calif., on Tuesday, May 8, 2018. Persky is the subject of a recall initiative on the ballot on June 5. (Anda Chu/Bay Area News Group) 
For some voters, it’s not an easy decision. Peninsula resident Merry Yen , 41, says she is torn between her belief that Persky should be held accountable for failing to punish sex offenders more severely and her desire to shield judges from political pressure.
“I’m not really sure how I’m going to vote,” said Yen, an administrative assistant at a tech company. “I’ll probably vote yes, but if I do, it could open the door to more recalls.”
To others, it’s simple.
“I thought the sentence was ridiculous,” said San Jose resident Cindy Giles, a marketing project manager for Planned Parenthood who posted a yard sign in favor of the recall. “The job of a judge is to exercise good judgment, and judges who don’t don’t get a pass.”’
But opponents such as Santa Clara County public defender Sajid Khan are equally clear in their belief that what they view as a crusade against Persky threatens to exacerbate injustice by frightening other judges into imposing longer sentences. They argue that independence from popular opinion is what has allowed judges to rule on civil rights, integrated schools, free speech, access to birth control and marriage equality.
“The attempt to punish Persky via recall is a dangerously misguided mistake, one that will mostly harm lower-income racial minorities,” Khan has said.
Michele Dauber and Doreen Shrivastava, left to right, prepare to hand 11 boxes with nearly 95,000 signatures to place the recall of Judge Aaron Persky on the June ballot at a rally at the Santa Clara County Registrar of Voters office in San Jose, California, on Thursday, Jan. 11, 2017. (Gary Reyes/ Bay Area News Group) 
Voters in June also will get a chance to choose between two candidates who are running to succeed Persky, if he is ousted: civil attorney Angela Storey and prosecutor Cindy Hendrickson. Storey has called the recall a “dangerous precedent” and said voters should focus on changing laws when they disagree with outcomes rather than removing judges. Hendrickson has declined to comment on the Turner case but said she supports the recall.
Turner was a 19-year-old Olympic hopeful in his freshman year on Jan. 18, 2015, when two graduate students from Sweden caught him outside a fraternity party on top of a 22-year-old woman who appeared to have passed out. After a two-week trial in which Turner testified that the woman had eagerly agreed to hook up with him, a Palo Alto jury took less than two days to find him guilty of three felony offenses, including intent to commit rape and digital penetration of an intoxicated, unconscious woman.
In rejecting prosecutors’ request for a six-year prison sentence, the judge said he took into consideration factors such as the swimmer’s age and lack of a criminal record, the victim’s trauma and the fact that they were both drinking. The victim had a blood-alcohol level of 0.24, or three times the legal limit for operating a vehicle, and did not wake up for more than three hours. Turner’s was 0.17, about twice the legal limit. Persky also declared Turner was remorseful, a claim hotly disputed by recall supporters.
Stanford University professor Michele Dauber speaks at the Friday, Sept. 2, 2016, rally to galvanize supporters in recalling Santa Clara County Judge Aaron Persky for handing a lenient county jail sentence to Brock Turner, who was convicted of three sexual assault-related felonies. Jacqueline Lee / Daily News
Turner wound up serving only three months in county jail under a policy aimed at reducing overcrowding. Under state law, he must register as a sex offender for the rest of his life.
The sentence sparked outrage and prompted Stanford law professor Michele Dauber to launch the recall campaign. It also inspired the Legislature to pass new state laws, including one that requires judges to send anyone convicted of sexually assaulting an unconscious or drunk person to prison for at least three years.
Recall supporters worried the issue might lose momentum in the two years it took to get to the ballot. But the election is playing out just as the #MeToo movement against sexual assault and harassment is sweeping the country. A host of men already have lost their jobs, including TV news anchor Matt Lauer, New York State attorney general Eric Schneiderman and Santa Clara City Councilman Dominic Caserta.
“Judge Persky has become our Harvey Weinstein,’’ said retired San Jose State political science professor Larry Gerston, referring to the movie mogul fired from his studio after news reports about allegations of sexual misconduct going back decades.
Recall advocates say the recall, endorsed by such politicians as New York Sen. Kirsten Gillibrand and organizations such as the California Nurses Association, is necessary to send a message that the community needs judges who take violence against women seriously.
Chelsea Ducote and other recall supporters held a rally near the Santa Clara County Hall of Justice in San Jose, Calif., Friday, Sept. 2, 2016. The rally was held to whip up support for ousting Judge Aaron Persky via a 2017 special recall election. (Patrick Tehan/Bay Area News Group) (Patrick Tehan/Bay Area News Group
Persky’s supporters note that since the judge followed the law in sentencing Turner, as well as the recommendation of the county’s probation department, the appropriate response is to change the law, which the Legislature already has done.
One of the most contentious aspects of the debate centers on the recall campaign’s claim that Persky, a Stanford graduate who played on the university’s lacrosse team, has a habit of showing leniency toward male athletes. The judge’s critics have cited five out of the 64 sexual assault and domestic violence cases the judge presided over in Palo Alto.
For instance, they claim that the judge gave multiple breaks to College of San Mateo football player Keenan Smith, who attacked his girlfriend and punched a bystander three years ago. They blame the judge for agreeing with a request from Smith’s lawyer and the prosecution to reduce the battery charge against him so he would be eligible to participate in the weekend work program that would allow him to continue his budding football career — and for failing to hold Smith accountable when it became clear he wasn’t living up to his end of the bargain.
But Persky supporters say the case belies the claim the campaign made early on that the judge has shown deference to white, privileged defendants; Smith is African-American and was working his way through college. Some opponents also criticize the campaign for failing to closely review other judges’ records in order to make a fair comparison.
The success of the recall depends in part on who turns out to vote. Turnout is considered essential because gubernatorial primary races in Santa Clara County typically draw only about a third to slightly less than half of the county’s 840,000 registered voters. Mail-in ballots already have started trickling in.
The recall campaign is better positioned financially to get out its message via mailers, cable TV and phone banks. It has raised about $1.1 million so far, at least 80 percent of which has come from women. Major donors include Eva Grove, the widow of Intel co-founder and CEO Andy Grove. Karla Jurvetson, a Peninsula psychiatrist in the process of divorcing venture capitalist Steve Jurvetson, has contributed the most so far — about $221,000 — according to campaign finance statements.
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Persky supporters have raised more than $858,000, but at least a third has been in-kind services, including legal representation by the San Jose firm of McManis Faulkner. Recall opponents include District Attorney Jeff Rosen, retired judge and former independent police auditor LaDoris Cordell.

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A poll released this week — conducted on behalf of the Silicon Valley Leadership Group and this news organization — found nearly half of likely voters — 46 percent — support removing Persky, compared to 33 percent who oppose his ouster and 15 percent who are undecided. It’s more popular with women and younger voters than with men and voters who are 50 or older.
Brock Turner leaves at the Santa Clara County Detention Facilty in San Jose, Calif., on Friday, Sept. 2, 2016. Turner was released after serving 3 months of his 6 month sentence for the sexual assault of an unconscious woman in January of 2015. The judge in the case, Aaron Persky, has come under fire for a sentence that many consider to be a slap on the wrist. (Dan Honda/Bay Area News Group) 

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