A fledgling campaign to recall the judge who sentenced a former Stanford University swimmer to six months in jail for sexually assaulting an unconscious woman gained momentum Friday as three prominent political consultants joined the effort.
When law enforcement arrived, one of the deputies, in a loud voice, asked the victim several times, “Can you hear me?”
There was no response. Paramedics tried a “shake and shout” technique and applied a physical pain stimulant. Still no response. She vomited once but didn’t regain consciousness.
In an ambulance later, a deputy tried to wake her repeatedly, without success. There was still no response after an EMT stuck an IV needle in the young woman’s arm.The victim finally regained consciousness about 4:15 a.m. at a hospital. Later that morning, doctors said her blood alcohol concentration was 0.12 percent — and estimated her intoxication level at the time of the assault to be 0.22 percent.
Aggressive sexual behavior
The sentencing memo said that the victim’s sister was “caught completely off guard” when Turner tried to kiss her the night of the assault. She alerted a friend after Turner grabbed her waist and later picked him out of a lineup as the “aggressive” man at the party.
After being twice rejected by her sister, Turner went after the victim when she was “alone and inebriated.”
Turner took the victim to a dimly lit, isolated area and sexually assaulted her behind a dumpster.
“This behavior is not typical assaultive behavior that you find on campus, but it is more akin to a predator who is searching for prey,” the prosecutor wrote.
Another woman told investigators that Turner was “grabby” and “touchy,” putting his hands on her waist, stomach and upper thighs when she danced with him at a fraternity party about a week before the sexual assault. The woman told police Turner made her uncomfortable. The question poses a quandary for the Times editorial page, which has long supported California’s system of judicial elections but generally supports sitting judges in the name of judicial independence. The last time the Times supported a challenge to a judge seeking re-election was in 1992 – in the case of Los Angeles Superior Court Judge Joyce Karlin after she sentenced Korean grocer Soon Ja Du to probation, with no prison time, in the killing of African American teenager Latasha Harlins. The Times said then that the sentence showed Karlin incapable of rendering a fair decision.
Persky was up for re-election this year and drew no opponents, so his name didn’t even appear on the ballot, but he still could be forced onto the November ballot if a proposed write-in campaign against him qualifies. And he could also be the subject of a recall election, as in the similar case last year of Orange County Superior Court Judge M. Marc Kelly.
Kelly imposed a 10-year sentence for the rape of a 3-year-old girl – less than the 25 years to life provided for by law. The judge explained that he believed the law was unconstitutional.
The sentence has been appealed, and that serves as a reminder of the proper remedy for sentences that don’t comply with the law: appeal to a higher court.
In mid-November 2014, Turner and a group of men were seen by a deputy walking on campus and drinking beer.
When the deputy approached the men, they ran away, according to the sentencing memo.
“Stop, police!” the deputy yelled several times. The men kept running. Another deputy cut off the men and ordered them on the ground.
Turner later admitted that he tried to hide the beer because he was under 21. Turner had a fake driver’s license in his possession.
After Turner’s arrest in connection with the 2015 sexual assault, investigators found evidence of “excessive drinking and using drugs” on his cell phone: A photo of him smoking from a pipe; a close-up shot of a bong; a picture of Turner and a swimming teammate holding a bong; and a video of him taking a “bong hit” and sipping a bottle of liquor.
In addition, text messages indicated Turner used drugs while in high school and at Stanford, including references to acid as well as a a highly concentrated and potent form of marijuana.
Online records show Turner is expected to be released from jail after three months. County jail inmates serve 50 percent of their sentences if they keep a clean disciplinary record. Turner is being segregated from the general jail population, which is standard for high-profile inmates who could be targets.
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The Recall Judge Aaron Persky campaign said media consultant Joe Trippi, campaign strategist John Shallman and pollster Paul Maslin will help secure the signatures and votes required to remove the Santa Clara County jurist from the bench next year.
Trippi has worked for a number of Democratic presidential candidates, while Maslin's clients include Gov. Jerry Brown and members of Congress. Shallman has worked for the president of the California Senate, who spearheaded passage of a law requiring colleges and universities to apply a "yes means yes" standard in sexual misconduct cases.
Persky was re-elected in an unopposed election Tuesday, five days after sentencing Brock Turner, 20, to six months in jail and three years' probation. The punishment for the Dayton, Ohio, native ignited intense outcry as too lenient.
Persky’s sentence was too lenient, but it wasn’t unlawful. That’s why prosecutors haven’t appealed it and don’t support a recall.
Agree with it or not, the judge did what judges are supposed to do: Look at the evidence, listen to all sides, and use his discretion.
Turner wasn’t tried for rape, legally speaking. In California, rape requires sexual intercourse and DNA testing didn’t support such charges. Rather, he was convicted of assault with intent to commit rape and sexually penetrating an intoxicated, unconscious person with a foreign object (his finger).
It was a first offense, and the judge said he took that into account, along with the recommendation of the female probation officer who had cited Turner’s youth and intoxication (twice the legal blood-alcohol level). By law, Persky also considered the victim.
His decision may not have sent the message preferred by advocates, or by the victim, or even by many thinking observers in a society where attitudes about sexual violence have changed, for the better. But judges aren’t there to send messages; they’re there to do the nuanced job of dispensing justice, however imperfect.
Santa Clara County will decide whether one stunningly bad call should cost Persky his judgeship. But in the meantime, the rest of us might want to focus on how to avert such tragedies in the first place.
The 54-year-old judge – appointed in 2003 by Gov. Gray Davis and defended by prosecutors and defense attorneys alike as one of the county’s fairest – will now become a human political flashpoint, just as public sentiment here and nationally was starting to swing, laudably, toward more judicial discretion.
Other than the two Swedish graduate students who chased Turner down as he staggered away from the unconscious woman, and attention the victim’s statement has brought to the devastation that sexual assault causes, it’s hard to see much good in any of this.
But it’s easy to see worse coming to pass if this case, disturbing as it is, isn’t kept in perspective. California has a long history with high-profile crime.
The outcries against an insufficiently tough bench that grew out of the Polly Klaas murder led to decades of inflexibility that undermined faith in the system, incarcerating too many people for far too long with too little left to judges’, well, judgment.
That inflexibility has been especially devastating to those who can’t afford top-of-the-line defense attorneys. The sense that white, privileged Brock Turner got a deal that no poor, brown defendant would ever have gotten is, in part, an outgrowth of that distortion, and one reason this case has generated such fury, aside from the victim’s eloquence.
Persky’s sentence was too lenient, but it wasn’t unlawful. That’s why prosecutors haven’t appealed it and don’t support a recall.
a group of California lawmakers joined women's rights advocates in urging the California agency that investigates complaints of judicial misconduct to take action against Persky.
Eleven Democratic state lawmakers asked the Commission on Judicial Performance to investigate and discipline the judge, alleging he might have engaged in misconduct in sentencing Turner.
The judge's decision "confirms what women already knew: that rape culture blames us for being vulnerable when crimes are committed against us, but treats the same factors -- drinking, in particular -- as reasons to be exceedingly lenient with rapists," said Assemblywoman Susan Talamantes Eggman of Stockton. The lawmakers also want District Attorney Jeff Rosen to ask an appeals court to overturn the sentence. But prosecutors have said they don't think Persky's decision can be appealed because it was "authorized by law and was made by applying the correct standards."
Rosen also has said the judge should not lose his job because of the ruling.
The judicial independence that is generally celebrated in theory is often publicly ridiculed or lamented when it’s exercised, as in Persky’s recent sentencing decision. In fact there is and necessarily must be some cracks in the wall that insulates the judicial world from the political one. Politics and popular opinion affect the justice system in many ways, including the election of the governor who does the appointing and the lawmakers who write the bills that define crimes and set sentence lengths. In California the people, too, have a direct hand in writing the laws through the initiative process.
But they also vote for judges and have the power to remove them, and it’s fair to ask why they have that power if they are never supposed to use it.
Just after 1 a.m. on January 18, 2015, law enforcement officers responded to a report of an unconscious female in a field near the Kappa Alpha fraternity house, according to a sentencing memo.
They found the victim on the ground, in a fetal position, behind a garbage dumpster. She was breathing but unresponsive. Her dress was pulled up to her waist. Her underwear was on the ground; her hair disheveled and covered with pine needles.
About 25 yards away, two men, passers-by, had pinned down and restrained a young man who was later identified as Turner.
“We found him on top of the girl!” one of the men said. Turner smelled of alcohol as he was handcuffed.
One of the men later told authorities that Turner had been on top of the motionless woman.
“Hey, she’s f—— unconscious!” one of the men yelled. Turner managed to get away briefly but the man tripped and later tackled him. Turner was held down until deputies arrived. According to the probation document, Turner told deputies that he walked away from the frat house with the victim and they kissed.
They ended up on the ground, where he removed the victim’s underwear and he digitally penetrated her for about five minutes, Turner told deputies. “He denied taking his pants off and said his penis was never exposed.”
In the sentencing memo, the state said Turner lied to the probation department about his use of drugs. He implied that his first time drinking was at a swim team party at Stanford.
“Coming from a small town in Ohio, I had never really experienced celebrating or partying that involved alcohol,” Turner told a probation officer, adding that he was an “inexperienced drinker and party goer.”
But the evidence on Turner’s cell phone showed he was a drinker who partied regularly since high school, including the use of marijuana and other drugs.
“He was not truthful with the probation department or this Court about his experience with drinking and partying, much like he was not truthful about taking advantage of (redacted) … much like he was not truthful with the aftermath of being caught by Good Samaritans. A California judge’s decision to give former Stanford University swimmer Brock Turner a six-month jail sentence for sexually assaulting an unconscious woman has caused a national uproar.