UC Berkeley Law Dean Erwin Chemerinsky is the left coast version of Harvard’s Larry Tribe, sans the candlelit dinner with Louise Mensch. There isn’t a progressive cause he won’t embrace. Until now, and for that, one is constrained to wonder: How utterly awful must something be for it to be too far over the line for Chemerinsky?
The “something” is Stanford law professor Michele Dauber’s war against Judge Aaron Persky.
The effort to recall Judge Aaron Persky, which has submitted signatures to be on the ballot in Santa Clara County in June, is misguided and a threat to judicial independence. If there is disagreement with a judge’s decision, the appropriate remedy is to appeal the ruling, not to seek removal of the judge.
Such recall efforts are a serious threat to judicial independence as judges will fear that unpopular rulings will cost them their jobs. Justice, and all of us, will suffer when judges base their decisions on what will satisfy the voters.
Persky is the last in the line of people whose lives Dauber set out to destroy. There was Turner, obviously, but there were also the peripheral players, like the people who wrote sentencing letters in support.* They must all be destroyed, and Dauber dedicated her life to making it happen. But Persky was the judge, and the message of her fury was that any sentence shy of life plus cancer would evoke their wrath.
Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California’s “three strikes law” for stealing $153 worth of videotapes.
Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions. This is not a new realization.
The carceral desire to strike fear in the hearts of judges for not being harsh enough for Dauber’s taste is nothing new. It has been historically used by petty officials to demand ever higher, ever more Draconian sentences, lying to the public about how inadequate prison terms would leave rapists and murderers on the street.
Dauber took a page from their book and sold it hard to those inclined to fear and incarceration. But she didn’t stop there. She went so far as to claim to her willing idiots that a defendant appealing was, in itself, a rape of the system for which Persky was inexplicably accountable.
I also am very troubled by the tactics of the campaign to recall Persky. Michele Dauber, the Chair of the Committee to Recall Judge Persky, began her letter encouraging voters to sign a petition to have the recall on the ballot by declaring: “This week, we saw rape culture in action when Brock Turner filed an appeal.”
But every criminal defendant has the right to appeal a conviction. To use that against the judge is unfair and just wrong.
And Dauber would stop at nothing to sell her tale to the willing.
On January 11, Dauber stated at a press conference that the California Constitution Center, a non-partisan academic research institution at Berkeley Law, concluded that this recall will not harm judicial independence. This is flatly incorrect.
Nothing in the California Constitution Center report supports this characterization; it is a description of the law and the history of recall efforts in California.
The question is not whether the sentence imposed by Persky met Dauber’s, or anyone else’s, approval. Sentences often don’t, mostly because they’re too harsh rather than, as here, too lenient. But the reaction is to argue one’s view of the sentence, not to seek a recall of the judge in order to coerce the judiciary to err on the side of excessive sentences rather than risk a recall petition by academics like Dauber.
But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.
To add insult to injury, Team Dauber was given a chance to respond, and their flack went straight for the lie.
Chemerinsky’s entire argument in support of Persky rests on his false assertion that the recall effort is due to a single decision. The truth is Persky has exhibited a pattern of bias in favor of sex abusers, especially those who are athletes or upper class. In one case, Persky allowed two student athletes convicted of violently attacking women to play football instead of going to jail.
Except they played football while on bail before conviction, as the law allowed them to do.
In another case, he allowed a high-tech engineer who brutally beat his fiancé to serve jail on the weekends…
Beyond a facile and disingenuous characterization of a factually problematic case, the defendant had already served almost all of his sentence. But if manufactured sexism wasn’t enough, why not add racism as well. After all, isn’t sexism and racism the answer to all questions?
Meanwhile, Persky sentenced a poor Latino man to three years in jail for a very similar crime to that committed by Brock Turner.
Why? Because Turner was a white, privileged Stanford athlete – just like Aaron Persky. So much for judicial independence.
Or the other “why,” the one based on facts. Persky happened to be the sentencing judge on a negotiated plea, having nothing to do with the agreed-upon sentence. But these aren’t legitimate arguments against Perksy, but fabrications contrived to convince the ignorant true believers to hate a judge because Dauber wanted him hated.
Certainly Erwin Chemerinsky is neither racist nor sexist. Certainly Chemerinsky would see the virtue of a progressive cause if there was any virtue to be found. Dauber’s jihad against Persky, against everyone involved in the Brock Turner case, is devoid of virtue. It’s so bad, so wrong, that even Erwin Chemerinsky condemns it. That’s about as bad as it gets.
*Regardless of how one feels about Turner’s friends who wrote letter on his behalf for sentencing, they were doing what friends do. They became Dauber’s (and her minions’) targets of hatred, threats and vitriol as well. All for writing a letter supporting a friend, whom Dauber hated. Nice.
H/T Norm DeGuerre