Mimesis Law
17 October 2018

Judge Curiel Doesn’t Need A Defense, But Judge Aaron Persky Does

June 13, 2016 (Mimesis Law) — A young man, who grew up in Indiana, became a United States District Judge after a distinguished career as a prosecutor.  I am referring to Gonzalo Paul Curiel who is a United States District Judge for the United States District Court for the Southern District of California.

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Donald Trump, while a Presidential candidate, disparaged the judge for his handling of a case seeking a ton of money for an allegedly fraudulent scheme related to “Trump University.”  Wikipedia tells us:

Trump repeatedly criticized Curiel in campaign speeches and interviews, calling him a “hater”, saying his rulings have been unfair, and that Curiel “happens to be, we believe, Mexican, which is great. I think that’s fine”, while suggesting that the judge’s ethnicity posed a conflict of interest in light of Trump’s proposal to build a wall on the U.S.-Mexican border. Curiel wrote in court papers that Trump has “placed the integrity of these court proceedings at issue”, but is forbidden from responding publicly to Trump’s claims in view of rules against public commentary by judges on active cases. On June 7, 2016 Trump issued a lengthy statement saying that his criticism of the judge had been “misconstrued” and that his concerns about Curiel’s impartiality were not based upon ethnicity alone, but also upon rulings in the case. He added that he did not intend to comment on this matter further.

A firestorm of self-righteous indignation followed.

Senator Elizabeth Warren took to the podium of the American Constitution Society (ACS) to attack Trump (as only a former Harvard bankruptcy professor can) while providing a ringing defense of Curiel.  Vice President Joe Biden, speaking at the ACS as well, chimed in solemnly intoning about the independence of the federal judiciary.  (Neither Warren nor Biden spoke about Whitehouse surrogates griping about the alleged political bias of U.S. District Judge Andy Hanen and his handling of the government’s program to quit enforcing laws the President doesn’t like.) It was typical left wing political crap.

My first essential point is that Judge Curiel did not need, or I suspect desire, this defense.  After all, federal judges have a  constitutional guarantee of judicial independence. The Founders were very smart. They realized that federal judges would be attacked for all sorts of reasons.  Thus, the Constitution provides federal judges with life-time tenure subject only to impeachment. In short, don’t weep crocodile tears for Judge Curiel.*

My second essential point is that Judge Aaron Persky does need a defense similar to that provided by Warren and Biden for Judge Curiel.  Judge Persky is an elected judge.

Persky has drawn intense criticism for sentencing a former Stanford University swimmer Brock Turner to only six months in jail for having sex with a drunken and unconscious woman.  The problem is that Judge Persky is an “elected” judge, and there is a lynch mob out to get him driven by the social justice warriors who are a plague on rational thought.

In preparing this post, I read a lot about Persky.  See, for example, the AP story here.

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The District Attorney, who hated the sentence, doesn’t think the judge should lose his job.  The prosecutors who handled the case think an appeal is futile because it was “authorized by law and was made by applying the correct standards.”  “Lawyers who have appeared in Persky’s court have called him a fair and respected judge. He has no record of judicial discipline and previously worked as a prosecutor responsible for keeping sexual predators locked up.”

The judge is a Phi Beta graduate of Stanford with a Master’s degree from that institution.  He got his law degree from Berkley.   He was an associate for five years at the huge and highly respected law firm of Morrison and Forester.  Assigned to Tokyo, he taught himself Japanese and won a national Japanese speaking competition for non-native speakers known as the Foreign Minister’s Prize.

While in private practice, Persky received the California Association of Human Relations Organizations’ Civil Rights Leadership Award for work on hate crimes, and the State Bar of California’s Wiley Manuel Pro Bono Award for his pro bono work for the poor. He has served on the executive committee of the Support Network for Battered Women. After graduating from Stanford, Persky hiked from Palo Alto to Washington, D.C., to raise money for the Red Cross African Famine Relief Campaign. For four straight years, he participated in the California AIDS Ride, cycling from San Francisco to Los Angeles.

Perhaps the judge made a bad mistake in the Turner case.  I don’t know enough about the facts or California law to express an opinion. For example, I don’t know what she actually told the independent probation officer. But I do know there is a campaign to intimidate judges in rape case.

I have done my best as a federal judge to protect state judges from such threats. See, e.g.Bethany V. Bowen, Plaintiff, v. Honorable Jeffre Cheuvront, in his official capacity as Justice of the District Court for the State of Nebraska, Defendant, No. 4:07CV3221, 516 F.Supp.2d 1021 (D. Neb. 2007). In that same vein, Mark Joseph Stern recently wrote an article for Slate with a headline entitled, “The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system.”  Stern made the following important point:

Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence. That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system. What Brock Turner did was sickening; what he received as punishment is far less than what he deserved. But eroding due process and threatening judicial independence is not the way to bring his victim justice.

If one is truly concerned about the rule of law and judicial independence, then the effort to discredit and oust Judge Persky should be shouted down. I wonder whether Senator Warren and Vice President Biden can be counted on to do so. Somehow, I doubt it.

Richard G. Kopf
Senior United States District Judge (Nebraska

*I have experience being attacked during high profile trial by a right-wing politician. During the bench trial of the federal partial-birth abortion case that ended up in the Supreme Court, a member of Congress from another state attended the first day of the proceedings and then held a press conference on the steps of the courthouse while commenting upon a remark I made during the trial. See here.  This fellow made it known that: “I serve on the House Judiciary Committee in Congress, and on the Sub-Committee on the Constitution.” He issued other press releases stating that he had conferred with the Chair of the House Judiciary Committee and strongly implied that he would subpoena me to attend a hearing to explain myself.  See here and here. By the way, I’m still looking for that subpoena.

31 Comments on this post.

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  • rob
    13 June 2016 at 9:23 am - Reply

    It’s not ‘having sex’ if she’s unconscious. It’s rape.

    At least pretend to have some respect.

    • Richard G. Kopf
      13 June 2016 at 9:47 am - Reply

      Rob,

      I struggled with that sentence. But it would be good if you looked at the actual convictions. It is my understanding that: “[t]he jury found him guilty of assault with intent to commit rape of an intoxicated person, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object.” See http://www.vox.com/2016/6/7/11866390/brock-turner-stanford-sexual-assault-explained (last accessed June 13, 2016).

      All the best.

      RGK

      • rob
        13 June 2016 at 11:01 am - Reply

        That doesn’t sound like ‘having sex’ to me either. In my world that’s rape, if you want to argue semantics we can call it ‘assault’.

        If a man is attacked on the street and beaten you don’t say he was ‘boxing’.

        • Greg Prickett
          13 June 2016 at 1:31 pm - Reply

          If a man is attacked on the street and beaten you don’t say he was ‘boxing’.

          No, but in court, you have to allege and prove a specific offense. You call that “rape,” which is fine for general conversation, but you can not get a conviction for rape in some states, like Texas, where “rape” is not a crime. Sexual Assault is the title of rape in Texas, and dependent on the circumstances is punished at either 2-20 years or 5-99 years/life.

          California is going to charge and convict Turner based on its statutes. Here it was assault with intent to commit rape that he was convicted of, not rape under Cal. Pen. Code § 261.

          This is a legal blog and we use precise language, but Judge Kopf is too much of a gentleman to point that out.

          So feel free to use whatever language you want in your world, but please be aware that when we are talking about cases here, the language is going to be more precise. Judge Kopf explained what his basis for using that language was. He doesn’t need instructions from you on writing about the law.

          • rob
            13 June 2016 at 2:29 pm -

            So ‘having sex’ is the technical, legal term for what he was doing?

  • TMM
    13 June 2016 at 10:30 am - Reply

    Persky doesn’t need much of a defense either.

    He was up for election this year. Nobody filed against him; so he has been re-elected for another new term.

    Technically, he could be recalled for the last two or three months of this term (by the time that a recall election could be scheduled and held). By the time that a new term starts, I suspect the short-attention span of the public will have moved on to another issue.

    • Richard G. Kopf
      13 June 2016 at 11:52 am - Reply

      TMM,

      It is my understand that a complaint of judicial misconduct was also filed against the judge with the entity in CA that handles such things. All the best.

      RGK

  • Matt Norwood
    13 June 2016 at 11:34 am - Reply

    With all due respect, counselor, I think your submissions would have been stronger had you reconsidered this passage: “there is a lynch mob out to get him driven by the social justice warriors who are a plague on rational thought”.

    Both “lynch mob” and “social justice warrior” are, fairly or unfairly, terms that tend to signal an unserious argument (unless one is talking about a literal lynch mob, which doesn’t seem to be the case here).

    I’m also not convinced that your argument hasn’t seized on a straw man as its target: has the Persky ruling really resulted in a noticeable increase in the number of people calling for the dismantling of safeguards on judicial independence and/or the procedural rights of criminal defendants? I don’t see any evidence of that. Non-lawyers do not generally approve of procedural safeguards on justice until they have occasion to avail themselves of such safeguards personally; the current hubbub strikes my ear as the same old song we’ve heard many times before.

    I HAVE seen people calling Turner’s sentence unduly lax (a sentiment echoed by the Stern piece you quote approvingly), and I HAVE seen people pointing out that at least some of Persky’s stated reasons for lenience (e.g. the defendant’s promising academic and athletic potential) strike a jarring note when voiced by a fellow Stanford man on the bench as the representative of a criminal justice system that routinely hands out much more punitive sentences for much less serious transgressions by those who don’t share Turner and Persky’s markers of privilege.

    Personally, I’m agnostic both as to the appropriateness of Turner’s six-month sentence and as to Persky’s judicial virtue. But I think it’s fair for people to point out the unfortunate way that the language of Persky’s decision threatens to cast the criminal justice system into disrepute.

  • Heather
    13 June 2016 at 2:02 pm - Reply

    I agree that people are completely wrong in going after Judge Persky.
    However, I take umbrage with you writing that Brock Turner “had sex with a drunken and unconscious woman.” Turner did not “have sex” with the victim. Brock Turner raped her. He assaulted her. He most certainly did not “have sex with” her.
    To parse it like that–and I am not oblivious to the fact that you write the victim was drunk, before noting she was unconscious–is to minimize what actually occurred TO this woman. Not “with” this woman.
    Couching it as such is reminiscent of Turner’s own ‘apology’ to the court, in which he said the words I, me, mine, myself more than 100 times, and the words victim and sorry exactly zero times.

    • rob
      13 June 2016 at 2:30 pm - Reply

      Exactly.

  • Repenting lawyer
    13 June 2016 at 2:13 pm - Reply

    If recall of state judges is allowed it will always have an aspect of popular or political, justice as spoke times happens with MO plan, eg purge of Cal S Ct over death cases. That aspect made CJ Taft believe it denied due process. He. At be right but that is not the law,CA has recall and this sentence did not pass the smell test, part of the Common Law of Douglas County.

    • Matt Norwood
      13 June 2016 at 2:21 pm - Reply

      I’m not entirely sure about the full content of the comment by “Repenting lawyer”, but at least part of it appears to be an important point in this conversation: jurisdictions that choose to appoint their judges to office by popular election have chosen to live by the sword of popular opinion, and inevitably some of those offices will inevitably die by the same sword. I tend to agree that popular election of judges is a bad idea and tends to lead to a judiciary biased in favour of draconian punishments for criminal suspects. That same trend may play out here as well, even if the mob crying to throw the bums out is made up of feminist leftists rather than law-and-order conservatives this time.

      • Repenting lawyer
        13 June 2016 at 2:42 pm - Reply

        Matt Trouble with iPad but you got the gravamen. Also effort to avoid call of rape in this case is not compatible with common law tradition.as Devlin pointed out in his debate with Hart if the criminal law decouples from popular morality it failed of its expressive purpose. Stephens’s make the same point with his revenge punishment, sex drive marriage analogy.

      • Matt Norwood
        13 June 2016 at 2:43 pm - Reply

        Perhaps I should re-position this point as a direct question to Judge Kopf: in a jurisdiction where judges are elected by popular vote, what exactly is inappropriate about people disagreeing with a ruling by a sitting judge and calling for his removal from office through whatever lawful mechanisms are in place for such removal?

        You’ve described Persky’s critics as a “lynch mob”, which is clearly hyperbole, but it obscures the nature of your actual objection. What are they doing wrong other than exercising their rights as citizens in a democracy in a jurisdiction that empowers citizens to determine by popular vote which individuals should sit on the bench? I may well have overlooked some outrageous conduct on the part of these critics — this isn’t a story I’ve been following in-depth. But your article does little to identify the cause of your outrage.

        I will reiterate that none of this is to say that I agree (or disagree) with Persky’s critics. I HAVE said that I think that popular election of judges is a bad idea, for the reasons set out above, but California has decided to do things that way and the system appears to be working exactly as one might expect it to.

        • Richard G. Kopf
          13 June 2016 at 5:59 pm - Reply

          Matt,

          To put it simply, I do not believe an elected judge should be removed based up a sentencing decision in one case.

          I make mistakes at sentencing all the time. For example, let me call your attention to one case where leniency blew up in my face: Kopf’s big blunder(s) at
          https://wednesdaywiththedecentlyprofane.me/2013/03/28/kopfs-big-blunders/

          All the best.

          RGK

          • repenting lawyer
            13 June 2016 at 8:43 pm -

            Judge, if you think recall for one bad call unfair then does not that same leniency owed to defendants as well, a sort of one dumb decision defense. You are identifying with the Cal. Judge as he identified with the swimmer.

          • Matt Norwood
            14 June 2016 at 10:47 am -

            Judge Kopf,

            Thank you for the link. Your blog is a refreshing read. And I largely agree with your argument as far as my personal opinion goes — my comment about living and dying by the sword was simply an acknowledgment of the limitations of democracy as a system for delivering just outcomes.

            That being said, I think that Ken White’s recent piece on the Turner case on this same website makes a lot of very good points in criticizing Persky’s judgment.

            http://mimesislaw.com/fault-lines/brock-turner-the-sort-of-defendant-who-is-spared-severe-impact/10288

            Here’s a fairly damning and convincing passage taken therefrom:

            [Ed. Note: Extremely lengthy quote of FL post deleted.]

            I don’t think that White is calling for Persky’s removal, and neither am I. Scapegoats are useful to the status quo; what the public needs is to see that Persky is entirely UNremarkable. It needs to see that his judgment is symptomatic of the structural problems with the criminal justice system, which employs judges whose backgrounds skew in a very particular direction and who are not particularly cautioned to try to compensate for their natural psychological biases in favour of their tribal fellows and against those from other tribes. You have surely seen the same statistics that I have on sentencing disparities in America — Persky’s judgment fits that pattern perfectly, and it should be held up as an example of what is wrong with the criminal justice system, even if it should not necessarily end Judge Persky’s career or his tenure on the California bench.

            Best regards,
            Matt Norwood

  • lawdog
    13 June 2016 at 6:02 pm - Reply

    Judge K: “If one is truly concerned about the rule of law and judicial independence, then the effort to discredit and oust Judge Persky should be shouted down.”

    Bullshit on crystal meth! A black robe is not a license to do whatever you goddamn well please. In their infinite wisdom, the people of California chose elections as a check on abuses of the judicial power, and have every right to bring as much pressure to bear as they see fit. This is as the Framers intended. The people “should have as complete a control, as decisive a negative, in every judgment of a court of judicature.” 2 The Works of John Adams, Second President of the United States 253 (Chas. F. Adams ed., 1850).

    And on what possible ground can you shit-can the Good Behavior Clause?

    • Big C
      14 June 2016 at 5:54 pm - Reply

      “…(T)he people of California chose elections as a check on abuses of the judicial power, and have every right to bring as much pressure to bear as they see fit.”

      But that isn’t what’s happening here. Nobody is arguing Judge Persky violated judicial ethics or imposed a sentence outside of the law, they are essentially complaining that he issues a sentence they didn’t like. His sentence was within the legal guidelines and appropriate under state law. If the people want to vote him out at the next election, that’s their prerogative, but that isn’t what’s happening.

      • TMM
        15 June 2016 at 10:21 am - Reply

        Except for two things: 1) California has recall elections; so attempting to recall a judge is within the voter’s perogatives. 2) Judge Persky was unopposed on the ballot eight days ago; so even if voters wanted to get rid of Judge Persky at the regular election, they couldn’t.

  • Wrongway
    14 June 2016 at 2:27 am - Reply

    People expect perfection from the justice system. But they forget that it’s made up of human beings.

    Expecting perfection from Humans is like expecting a Turd to taste like Vanilla.

    Maybe the guys sentence should be longer, & maybe the ‘Judge’ who oversaw the case did his best with what he had at the time.

    But again with this finger pointing & outrage over human infallibility.. Just lick the turd & tell me what it taste like..

  • When @EFF Is Needed Most, There’s Nate Cardozo | Simple Justice
    14 June 2016 at 9:05 am - Reply

    […] justice warriors? Well, that’s a problem.  The opening salvo came in response to a post at Fault Lines by Judge Richard Kopf, in which he expressed no opinion as to the sentence imposed by Judge Aaron Persky on Brock Turner, […]

  • Anonymous
    14 June 2016 at 9:05 pm - Reply

    Ok. I don’t know how everyone else feels, but after the past ten days please use all your powers, all your skills and give us an uplifting, life affirming, funny post. Let’s all take a one week break from all the BS of this world. I can’t bring myself to watch the news. It’s all day long. Ever read the case of the celebrated Missouri mule case. An ongoing saga involving two drunks, a wagon and a mule that collided. A never end indent lawsuit that went up and down the state courts in Missouri over five dollars (maybe it was fifty) about 120 years ago. I don’t have the cite handy, but I’ve read it several times. Really funny. I read somewhere (don’t think it was H&U) about the Missouri judge who authored same, and he apparently had several of this kind of opinion. You got anything like that from your decision portfolio that you could share? We could all use something light. No guns, bombs, murders, heinous crimes please.

    • Richard G. Kopf
      14 June 2016 at 9:30 pm - Reply

      Anon.,

      Good thought. I will do some thinking (insert snark). Next post will endeavor to satisfy your needs. Does that require a trigger warning? Never mind. I’ll try next week.

      All the best.

      Rich Kopf

      • Anonymous
        15 June 2016 at 9:50 am - Reply

        B.L. Lyman v. Horace Dale, 262 Mo. 353, 171 S.W. 352 (1914). Particular attention to the concurring opinion of Justice Lamm. And it was “the magnificent sum” of five dollars.

        Check out “Essay: The Legal History of the State of Missouri,” 43 St. Louis L.J. 1395. A description of Judge Henry Lamm can be found at page 1413. “During his term, he wrote (reportedly) 500 opinions, spiced with a style of language unequaled before or since… he invigorated the bone-dry, orthodox, legal, literary production by an odd and decidedly blunt way of saying things…”

        You may just find your spirit animal in the ghost of Judge Henry Lamm.

        Looking forward to next week’s post.

  • Steven John Warren
    15 June 2016 at 9:05 pm - Reply

    As you point out, Judge Persky is elected, not appointed. He has to run for election every 6 years. He just won an uncontested primary. Had the Turner case happened six months ago, he would certainly have drawn an opponent who would have run against him, arguing that the sentence in the Turner case was too lenient and did not reflect the seriousness of sexual assault.

    Would Judge Kopf argue that the people of Santa Clara County should not take into account Judge Persky’s rulings, including this one, in deciding whether to re-elect him? If not, then arguing against a recall on the basis is incoherent.

    I imagine that Judge Kopf would prefer that the California Constitution not provide for elected judges. Unfortunately, the people of California disagree with him. It’s really disappointing to see former federal judges calling participants in the electoral process a “lynch mob.” It’s not accurate, and it bespeaks a contempt for democracy that is not consistent with the office.

  • A Defense of Judge Perksy’s 6 Month Sentence of Brock Turner
    17 June 2016 at 7:56 am - Reply

    […] of all, the judge’s actions were authorized by law. If the legislature (the people’s body) authorized the judge to make this sentence, then the […]

  • Brittany
    20 June 2016 at 1:21 pm - Reply

    How does unfettered discretion in the hands of a judge foster the rule of law? Instead, it seems to precipitate rule by judges.

    Maybe we see things differently up here, but Judge Curio’s relationship with La Raza raises questions about his ability to judge Donald Trump fairly. All he is guilty of is speaking like a layman.

    • TMM
      20 June 2016 at 3:01 pm - Reply

      How does membership in La Raza — a group concerned about discrimination against Hispanics — influence a judge’s ability to be fair in a case about gross consumer fraud. Judge Curio is not being asked to judge whether Donald Trump is a racist or would make a good president. He is being asked to preside over trial procedures in a case in which a business associated with Donald Trump has engaged in practices that meet the legal definition of deceit. While the rules governing trial procedures grant judges some discretion, they are much less than the discretion granted to judges in sentencing. To date, Trump’s attorneys have not made any allegation that Judge Curio is unable to properly perform his duties as a trial judge in Trump’s case.

  • KKKopf, The “Fuck You” Motion & The “Casey at the Bat” Opinion
    22 June 2016 at 9:28 am - Reply

    […] 22, 2016 (Fault Lines) — A very literate person made a comment on my post last week regarding Judge Persky.  He […]

  • Kazuaki Shimazaki
    22 July 2016 at 6:56 am - Reply

    I’m a bit late to the party, but as a foreigner with an amateur interest in law, I must disagree with Judge Kopf.

    First, the characterization of Persky’s decision as a mistake is less “soft” than a misapplication of terminology. “Mistake” implies action/inaction without lack of intent, so at worst Persky was *negligent*. Considering the number of loops Persky has to jump through to apply a special exception, one can argue whether he was justified or not, but saying he didn’t intend to conduct his *actus* is a bit steep.

    Second, that Persky stayed within the formal written indicia of his discretionary authority does not necessarily mean his decision was lawful. After all, isn’t the very essence of abuse of authority the use of powers formally granted by law for clearly unintended and wrong ends?

    Third, Persky openly admitted to purposely (to borrow something from MPC) violating a legal doctrine when putting down his punishment. He cited all the mitigating factors, and yes, one can validly say he’s allowed, even obliged to consider them. However, Persky himself seems to believe their combined strength is insufficient, so he tacks on this:

    http://www.people.com/article/brock-turner-case-judge-aaron-persky-believed-turner-thought-sexual-encounter-consensual
    “I take him at his word that, subjectively, that’s his version of events,” Persky said. “The jury, obviously, found it not to be the sequence of events.”

    If we accept the idea that Brock genuinely believed he had consent (I roll my eyes but let’s go with it), then his act was a “mistake of fact” and he is “not OK” with what happened. He is now only “negligent” rather than “reckless” or “knowing”, much less purposeful.

    OK, this fact-finding does justify a low sentence (maybe it won’t even bump into the formal indicia of any statute at all) … except that according to Persky it isn’t representative of the findings of the jury! Isn’t it the legal profession (including judges) that first came up with this whole fact vs law divide, that juries being mere mortals are incompetent to rule on law and should stick to facts (we are, however, held responsible for misreading the law … even when the law is buried not in the Criminal Law but deep somewhere, or worse when our estimate on the interaction b/w two laws is unfortunately different from the judge).

    And isn’t it a hallmark of common law that heavily emphasizes previous judgments (thus making law even murkier for us mere mortals). Thus, even though Persky may not have violated a statutory law, he did by his open admission violate the doctrine of leaving fact-determination to the jury.

    Fourth, I don’t agree with the soft-balling of the legal profession on him. It is pretty clear not many legal professionals are willing to say they actually think Persky was right. Defenses mostly involve him being within his technical rights. However, faith (which is rewarded by autonomy) in a profession is based on its ability to “self-police”, and it seems very much the legal profession is favoring defending their own than trying to convince the public they can self-police. Since Persky’s transgression seems pretty objective, I see no reason, even considering the legal profession’s parochial interests, to not take a hard line on Persky.

    If I’m the legal profession, since I’ll value our independence, at this moment I’ll be slapping (figuratively) Persky with every legal measure at my disposal until the public turncoats to the other side.