Mimesis Law
22 August 2019

Judge Aaron Persky & You: Who’s The Dumbass?

July 1, 2016 (Fault Lines) – Judge Aaron Persky is Public Internet Enemy Number One. The Guardian reports a stunning display of racism by the judge in not giving a Latino man the same sweet deal ex-Stanford swimmer Brock Turner got for sexual assault. Heads are exploding everywhere as people try to figure out how to be mad about a light sentence and a not so light sentence at the same time.

Here’s a secret. The only thing stunning is how incredibly misleading the Guardian’s story is. There was nothing wrong with either sentence. The problem is you. Whether you are a Facebook commenter or a law professor who probably couldn’t find the inside of a courtroom to save her life, or just an ignoramus, you are the problem. Not Judge Persky.

It’s fascinating how people who know nothing about the law are confident in their ability to comment on every facet of it. You wouldn’t start pushing buttons in the space shuttle without knowing what they do. You probably don’t comment on the wisdom of a complex medical decision. But when it comes to the law, everybody is an expert.

Judge Persky is back in the news over the case of Raul Ramirez.

The embattled judge in the Stanford sexual assault trial is presiding over a similar case in which a Latino man is facing a much harsher sentence than Brock Turner, raising questions about how the former student may have benefited from his privileged background.

Raul Ramirez, a 32-year-old immigrant from El Salvador who admitted to sexually assaulting his female roommate in a case that has similarities with the Stanford case, will be sentenced to three years in state prison under a deal overseen by judge Aaron Persky, according to records obtained by the Guardian.

The first red flag is the word “similar.” That’s very different from “the same.” Words matter. In the law, they really matter. So similar is a suspicious word to use. Because a case that “has similarities” also “has differences.” How does this sound?

Judge Persky is presiding over a different case than Brock Turner’s, with a defendant that is getting a different sentence than Brock Turner. The case has differences from Brock Turner’s case.

Huh? Sounds less sensational when you say it that way. Even though that paragraph has the exact same meaning as the one in the article. But it’s rape, right? So the facts aren’t important.

Instead of sentencing him to the minimum of two years in state prison prescribed by law, Persky made an exception for Turner, determining that his case was “unusual” and that prison would have a “severe impact” on him. After the victim’s impact statement went viral, the judge’s controversial sentencing decision, which will result in Turner spending three months in jail, received international scorn.

Again with the word tricks? Prescribed by law. Well that sounds pretty mandatory. Unless you have a dictionary. Prescribed means authorized, recommended, suggested. It does not mean mandated. And California law did not mandate a two-year sentence. If you had taken the time to read Judge Persky’s sentencing of Turner, you know that probation was also authorized. And Persky went through each legal factor required to impose probation before he did it.

Words. Like the claim the case was “unusual” and would have a “severe impact” on Turner. Those are specific factors in California law that lead to a probationary sentence. The “exception” made by the judge was no exception at all. What the law actually mandates is that the judge go through the sentencing factors and do his job. So the article could have said:

Instead of ignoring the law and giving Turner a sentence that would make the world happy, the judge followed California’s sentencing directives and gave Turner a perfectly legal sentence. 

But that version sucks. Because rape. And feelings.

So how exactly is Ramirez getting screwed in this whole deal? Because Judge Persky forced him to plead guilty to a crime and is now refusing to help him out like he helped out fellow Stanford athlete bro Brock Turner, obviously. Just kidding.

Because Ramirez ultimately pleaded guilty to a felony offense that does not have an option for probation or a lighter sentence, Persky was limited in the sentence he could approve for the specific conviction.

Interesting. Ramirez can’t get probation under the law. The law he pled to. Unless Persky is up to something.

But critics say that Persky, a former Stanford athlete himself, bent over backwards to make an exception in the Turner case, and that if he wanted to give Ramirez the same favorable treatment, the judge could have utilized his discretion and recommended a less harsh prosecution.

Busted! I was wrong. Persky could give him probation and he just won’t because Ramirez doesn’t know the secret handshake.

Specifically, Persky could have approved or helped negotiate a bargain in which Ramirez only pleaded guilty to the lesser of two charges he was facing – assault with intent to commit rape. If the more serious charge was dropped – as was the case with Turner, who had two rape charges dropped – Ramirez could have potentially avoided prison.

Words, again. They are pretty much ruining the Guardian’s story. Persky can’t approve something no one put in front of him. And regardless of what role a California judge might have in negotiating a deal, that’s sort of the lawyers’ responsibility. The second sentence is great. Follow the link. Inform yourself. Persky didn’t drop anything in Turner’s case. The prosecutors did. The same ones that are not dropping the most serious charge in Ramirez’s case. Where is the headline about the racist prosecutors?

If you are starting to feel stupid, like maybe you should have thought about this more before you got all up in arms about it, don’t. You aren’t alone.

Michele Landis Dauber, the Stanford professor leading the recall, said the Ramirez case was further evidence that the judge should be removed. “This just shows that our concern about Judge Persky’s ability to be unbiased is justified. We continue to think that he abused his discretion in giving an unduly lenient sentence to Turner,” he said.

Ramirez’s three-year deal “shows that Turner got consideration not available to other defendants who aren’t as privileged”, added Dauber, who is also a family friend of the Stanford victim.

Professor Dauber is just as uninformed as a common uninformed person. She is a law professor, but not really a lawyer. Her curriculum vitae (fancy term for resume) says she never actually practiced law. She just studied it. But apparently not in-depth enough to understand the differences between Turner’s case and Ramirez’s case. Or the differences between the charges of conviction. Or the differences between sentences available for different crimes. Maybe she should run over to Stanford’s English department and see what they know about words. And how they matter.

Judge Persky gave Turner a reasonable and considered sentence. And he hasn’t even sentenced Ramirez yet. But when he does, he will be unable to give him a sentence like Turner’s because both the law and the lawyers prevented him from doing so.

This matters. Your understanding of it matters. What happens in a criminal court is not fodder for your next Facebook rant. It’s not for your stupid petitions. You don’t get to fire a judge because you don’t understand what he is doing.

Details are boring. Having to understand all these words isn’t sexy. Headlines are what we want. Flash. Sensation. But those details are the law. If you don’t get the details, you don’t get the law. And if you don’t get the law, do everyone a favor and shut up about it.

27 Comments on this post.

Leave a Reply

*

*

Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Chris
    1 July 2016 at 9:27 am - Reply

    This website really needs a like button.

    • Richard G. Kopf
      1 July 2016 at 12:31 pm - Reply

      Chris,

      I agree that this website really needs a “like” button. But since it doesn’t, your persuasive and slightly snarky post is a treasure!

      All the best.

      RGK

  • Richard G. Kopf
    1 July 2016 at 12:32 pm - Reply

    Josh,

    The reply to Chris was meant for you. I need a dumb ass button.

    All the best.

    RGK

  • Matt
    1 July 2016 at 1:01 pm - Reply

    Can’t the comparison between the cases be useless and misleading without having to agree that Turner’s sentence was “reasonable and considered” in the grand scheme?

    Plenty of thoughtful words have been spilled, including at this site by experienced practitioners, about how that may not be the case, and not all of it is idiocy or feelings.

    • Josh
      1 July 2016 at 4:30 pm - Reply

      Why do you think Turner’s sentence was not reasonable and considered?

  • Mark David Dietz
    1 July 2016 at 3:59 pm - Reply

    “Even though that paragraph has the exact same meaning as the one in the article.”

    Two things may be the same, they may be similar, and they may be different. Yes, if they are similar, they will have differences. But a sentence that says they are similar focuses on the similarities not the differences. A sentence that says two things are similar cannot have the same meaning as one that says the same two things have differences, because it is at least logically possible for two things to have differences, but no similarities.

    (I say logically possible, but when we have two things that are recognizable as two separate things, a little thought will make it clear that absolute difference and absolute sameness are not logically attainable. Instead, we would need to establish a conventional point at which we could accept those positions for the sake of argument. Our author here is too careless with language for us to expect any such convention from him).

    Because the sentence ‘these two things are different’ ignores the substantive focus of the earlier statement, ‘these two things are similar’, it is verbal trickery to say the two sentences mean the same thing. So much for the articles lawyerly rhetoric.

  • Matt
    1 July 2016 at 4:58 pm - Reply

    Posts like Ken White’s make a strong case that, regardless of the actual fairness of the sentence in a vacuum, there’s a good argument that the sentence was likely lower than one would expect in our system.

    I agree that the Guardian article is stupid, and comparing case to case specifically is misleading, but I don’t think that means the judge made the right call.

    • Josh
      1 July 2016 at 5:05 pm - Reply

      Here’s the problem. Fairness in a vacuum is purely fair. Fairness in an unfair system can still be unfair.

      What would you use to support the opinion the judge made the wrong call?

      • rob
        2 July 2016 at 12:55 pm - Reply

        I think the punishment was not sufficient given the seriousness of the wrong done. I say this not as someone with first hand experience in the rules and procedures of criminal court but as someone with first hand experience in sexual assault and it’s effects.

        In California people get to recall a judge if they want to. This is no more a violation of the law or due process or judicial integrity than the sentence that Judge Persky handed down.

        I think the sentence sucked and a judge who would hand it down shouldn’t be on the bench. I think if judges can’t take sexual assault seriously they shouldn’t get to make that call. Lots of people agree with me. They are using legal means to do something about it.

        You don’t like that. Tough shit.

        • Josh
          2 July 2016 at 2:57 pm - Reply

          You made my point, Rob, with your reply. A lot of people agree with you and want to recall the judge, so you must be right? Can you think of some examples where “lots of people” are doing things that might be called stupid or destructive?

          I don’t care about your experience with sexual assault. It does, however, make you utterly unqualified to comment. The legal system has to deal with not just all sexual assaults, but all crimes. So while your experience is the one you want to set the bar, the rest of us may not want to have your experience govern our life.

          The legal system is not centered around you and whatever your life experiences are.

          You don’t like that. Tough shit.

          • rob
            2 July 2016 at 4:41 pm -

            Provisions for a recall election exist in the law and the people are availing themselves of it.

            As much as lawyers and judges would prefer everyone shut the fuck up and allow them to decide how seriously these things are taken, it turns out the elections laws are not written that way.

            You are in the minority in thinking that everything is fine with how sexual assault is being handled by are criminal justice system. ‘The rest of us’ are not happy with where ‘the bar’ has been set.

            The legal system is not centered around whatever your life experiences are either. It’s a democracy. People get to vote for judges in California. They even get to recall them if they want.

            You can stomp your feet and yell as much as you want, but those are the facts.

          • shg
            2 July 2016 at 10:30 pm -

            Somebody’s stomping their feet, and it’s not Josh. Repeating your emotional appeal doesn’t make it any more persuasive to people who don’t live in your “majority” echo chamber. No one has said a recall vote isn’t an available mechanism for elected officials in California. They question isn’t can they, but should they. The resounding answer from people knowledgeable, from the local public defenders, prosecutors and judges, is no.

            Many (myself included) would have imposed a different sentence, but that doesn’t mean recall is the proper reaction to anyone honest and knowledgeable. No one doubts your sincerity, but you are hardly knowledgeable, and you have already proven that conclusively, even if you’re incapable of seeing it.

            So you feel differently because of your emotional baggage. You made that clear over and over. Got it. Take a rest.

  • Chang
    1 July 2016 at 6:39 pm - Reply

    Do you know where I can find the police report on the Ramirez case. I found the turner one fairly easily. I’d like to see the differences. Thanks.

  • Matt
    1 July 2016 at 6:44 pm - Reply

    I’m not arguing about whether the judge gave Turner the objectively appropriate sentence that fits the crime; I’m not qualified. So I can’t make the call over whether his sentence was wrong or right. But I don’t think it’s hard to make the case that it’s an outlier in our justice system because of its relative leniency.

  • Pat
    1 July 2016 at 7:11 pm - Reply

    It is not only Judge Persky who is under attack but the entire Judiciary. Now, the DA is trying to change the law to make prison time mandatory in all adult sexual asaault cases. This is similar to the Three Strikes scheme, which has failed.
    Hard cases make bad law.
    No two cases are exactly alike. We have not seen the probation reports and recommendations. Did Judge Persky follow the probation officer’s recommendation for Mr. Ramirez? Apparently he did for Mr Turner.
    A useful analysis would include a review of all of Judge Persky’s sentencing.

  • Daniel Jensen
    2 July 2016 at 11:22 am - Reply

    The problem I have is everybody has opinions but no one has more knowledge of the process than those who work there. If anybody thinks reading a police report is a complete and accurate view have never sat through a trial. Most people who have made comments and have strong opinions don’t even understand the sentencing process and how influential the probation recommendation is in the system. The probation department has an extremely structured protocol that runs numerous pages that takes into consideration all facets of the crime and of the individual being sentenced. The sentencing process has evolved over the years in an attempt to take out racism, social economic differences, and general prejudice . I have not heard anybody asking for the resignation of the probation officer who made the recommendation . The buck shouldn’t stop there because all probation recommendations are reviewed and signed off by a supervising probation officer. I have read numerous comments comments made by numerous people. The few comments I have read made by people who are truly familiar with the system have clearly said asking for the judges removal is totally inappropriate. It should be pointed out the prosecutor in this particular case and their boss is not asking for the judges removal. I appreciate that informed people can have a difference of opinion as to the sentencing being inappropriate. Anyone asking for the judges removal from the bench doesn’t understand what took place and how the system works . I’m shocked that people that have gone to law school, granted never practiced law, are asking that the judge be removed totally contrary to the law. As for the rest of you, a little research on the law, ethics and cannons that judges are required to abide by might help you make a much more informed opinion. Democracy cannot survive without an independent judiciary system and one must be very careful before we start removing judges because we disagree with their sentence.

    • shg
      2 July 2016 at 12:05 pm - Reply

      Do you think that might be the point of this post, which somehow eluded you. Or when you wrote “everybody,” you were a little imprecise and picked a regrettable word. For future references, you may want to consider using paragraph breaks.

  • The Tone Police: Don’t Bernie Me, Bro | Simple Justice
    3 July 2016 at 7:27 am - Reply

    […] a remarkable post at Fault Lines, Josh Kendrick explained Judge Persky’s sentence of Brock Turner versus Raul Ramirez. The […]

  • Laura Christa
    4 July 2016 at 1:21 am - Reply

    Well that is an articulate defense of one of your criminal law colleagues (Brock Turner’s lawyer) and especially the judge I assume you both appear in front of given where you both practice. So you do have a bird’s eye view. So I have no issues with a discourse that includes your thoughts. I am primarily a civil trial lawyer, but like most civil litigators, have cases that veer into criminal law and so have developed over many years a fair understanding criminal law. I think you would agree that the “law” surrounding Brock Turner’s case is not especially complicated. Not like a copyright or a RICO case, e.g. And full disclosure, I gave legal advice to the producer of the very thoughtful, award-winning documentary on campus rape “It Happened Here” that the Obama Administration rolled out last September onto college campuses as part of the “It’s on Us” campaign. I give you this preface because I also agree with one of your points that too many people get into rant mode without giving the underlying facts a fair look. I do think you do many, many thoughtful people a disservice by assuming they have not done so simply because they are not lawyers. I am sure there are posts and other comments on social media that show an ignorance of the underlying facts and law, but I think you have to admit many express a reasonable outrage that Judge Persky exercised his discretion as he did. I don’t disagree that Judge Persky had the legal discretion to sentence Turner as he did. And I don’t think you would disagree that the firestorm that ensued was largely over how he exercised that discretion. Yes, he could have even given Turner probation. But he also could have given him what I believe was the maximum sentence of 14 years. You do walk through the findings he had to make in determining Turner’s sentence. You mention, for example, his likely finding that it was an “unusual” case. This is code for something about the case that makes it unfair to sentence somewhere in the middle of the range for example, either because of a seeming innocence or an aggravation that suggests the appropriateness of a maximum sentence. That is an area you have likely had more experience with than I have. But what about the conviction by the jury on three felonies committed by a man who ran away from the scene of a crime where he was raping a young woman with “foreign objects” suggests an “unusual” case that merits leniency as opposed to the opposite? Who leaves a fraternity party with a virtual stranger and thinks it is okay to somehow get her next to a dumpster where he gets on top of her and then takes her clothes off and inserts what, his hands/fingers into her? The reaction to that from so many decent people seemed to be beyond expression. The distance between their reaction and that of Judge Persky caused the firestorm. The biggest irony to me is that in sentencing Turner as he did, he made sure he avoided a state penitentiary where Turner would apparently have had a greater likelihood of being subject to rape.

  • John Neff
    4 July 2016 at 1:13 pm - Reply

    When it comes to the law the experts can reach contradictory conclusions.

  • The Administration’s Last Gasp Effort To Eliminate Due Process | Simple Justice
    5 July 2016 at 12:10 pm - Reply

    […] not in a campus adjudication. And while many think the sentence was light, we understood it in the context of law. We didn’t write teary-eyed virtue signals to audition for a Real Housewives of D.C. reality […]

  • Why civil discussion of politics and social issues is so difficult « blueollie
    8 July 2016 at 9:51 am - Reply

    […] “this person who supposedly did X is evil and stupid” bandwagon. Example: here is an excellent article about the judge in the “Stanford swimmer rape case”. Upshot: judges have to follow the law, and the judges have to rule on what is brought before them […]

  • Prosecutor Plays Pokemon Go With Rape Victim “Jenny”
    21 July 2016 at 9:21 am - Reply

    […] was more convenient for the prosecutor to stash her there over the holidays. Say what you will about Judge Aaron Persky, but at least he threw the rapist, not the rape victim, in […]

  • Kazuaki Shimazaki
    22 July 2016 at 10:51 pm - Reply

    Sorry, Josh, but having read your argument you (& Persky) are still wrong.

    I mean, really Josh … when the doctor “prescribes” you medication, given the choice you are happier to have that word rewritten as “recommended/suggested” rather than “mandated”, so the nurse really picking out your drugs can choose to put in completely different and rather clearly unintended drugs?

    As for the essence of this issue, I don’t think people are complaining Persky was too harsh on Ramirez, but that he is disproportionately light handed on Turner.

    It may be true Ramirez didn’t have the best lawyer, so he didn’t get the best possible deal and that tied Persky’s hands. However, there is no evidence if such a path opened Persky would necessarily have taken it.

    Further, these two cases are less than one month apart in their sentencing, so at the time Persky decided to go light on Turner, Ramirez’s case should be well in his mind as well. He must know that pleading guilty is a much stronger sign of remorse than Turner’s refusal to do so.

    Thus, what he should have done is NOT exercise his discretionary authority for Turner. That he might have some mitigating factors does not justify going below the minimum (many people would qualify for these mitigating factors). And he definitely did not have the right to knowingly base his sentence on a different finding of fact than the jury.

  • Fault Lines Debate: When Does A Judge Get To Just Say No?
    29 July 2016 at 11:40 am - Reply

    […] are all the rage, and the object of rage, these days. Whether it’s Judge Persky and his rape sentence or Judge Neves and his “no plea if the cops don’t want one” order, […]

  • Fault Lines Debate: When Does A Judge Get To Just Say No?
    29 July 2016 at 11:40 am - Reply

    […] are all the rage, and the object of rage, these days. Whether it’s Judge Persky and his rape sentence or Judge Neves and his “no plea if the cops don’t want one” order, […]

  • You Won’t Have Judge Persky To Kick Around Anymore | Simple Justice
    30 August 2016 at 6:10 am - Reply

    […] the feminist lens, won the day. It’s that Judge Aaron Persky, who imposed a sentence that feminists felt was too lenient, decided he didn’t need to put up with any more of this […]