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Analysis of Judge Persky's 'pattern' cases

A review of court records and interviews of those involved with five other cases Persky presided over

Judge Aaron Persky speaks out at a press conference about his forthcoming recall election in a private residence in Palo Alto on May 8, 2018. Photo by Adam Pardee.

Six criminal cases are at the heart of the campaign to unseat Santa Clara County Superior Court Judge Aaron Persky.

The first is the most well-known: Brock Turner, the former Stanford University student-athlete convicted of sexually assaulting an unconscious, intoxicated young woman outside a fraternity party in 2015. It is Persky's sentencing of Turner — six months in county jail, three years of probation and lifetime sex-offender registration — that sparked the recall the judge now faces.

The other five, which Persky presided over during his time hearing criminal cases in the Palo Alto courthouse in 2015 and 2016, have been brought forward by the recall campaign as evidence of an alleged pattern of Persky's bias for white, privileged and male college athletes in cases involving violence against women.

The anti-recall campaign argues Persky's decisions in each case were lawful and illustrate the record of a judge who leaned correctly toward rehabilitation for first-time or low-risk offenders. The campaign also argues that the men do not fall into the pattern of being white (only two are), athletes (two are) and privileged (one is).

The five cases differ from the Turner case in that none went to a jury trial. All of the sentences except one were negotiated through plea bargains, meaning the district attorney's office and defense agreed to certain charges and punishments. In an interview with the Weekly, Persky described a judge's role in plea bargains as hands-off. It's rare for a judge to object to a plea deal on his or her own accord, he said.

The role of the probation department also differed across the cases. Some but not all of the cases had full probation reports, meaning the probation department interviewed the defendant and possibly the victim, conducted a risk assessment, reviewed the police report and made a formal sentencing recommendation to the judge.

In two cases, Persky waived the referral to probation, meaning the report the department produced was limited.

The key facts of each case have been in public dispute throughout the campaign. To help inform voters, who will decide Persky's fate on June 5, the Palo Alto Weekly reviewed court records and interviewed those involved with the cases to answer the most controversial questions about each case.

A case of child pornography

Robert Chain was arrested in Sunnyvale in May 2014 for possession of child pornography following an investigation conducted by the Silicon Valley Internet Crimes Against Children Task Force. Chain, who is Caucasian, was then 48 years old, living in San Jose and employed as a plumber. He had a prior criminal record for driving under the influence.

Police found about 200 images and one video on his computer, according to court records. Chain was charged in June 2014 with one count of possessing/controlling matter depicting a person under age 18 engaging in or simulating sexual conduct. The crime carries a maximum three-year penalty and no minimum. Chain was not suspected of sexual abuse of a child nor of making the pornography.

In March 2015, Chain pleaded guilty to the charge, court records show. In the probation report, cited in a court document, Chain attributed his offense to alcoholism, marijuana use and being molested himself as a child. In June, Persky sentenced Chain to four days in county jail (two days of which he had already served, plus two days he earned through credit), three years of probation and lifetime sex-offender registration. Conditions of his sentence included participation in a sex-offender program, individual therapy and Alcoholics Anonymous, among other instructions.

Persky recused himself from the case in August 2016, following the Turner sentence, citing exposure to publicity that might "reasonably entertain a doubt that the judge would be able to be impartial."

The recall campaign argues Persky's sentence was lenient compared to other Santa Clara County judges' for similar cases. The anti-recall campaign argues that Persky properly followed the recommendations of the district attorney's office, defense attorney and probation department.

Was this a plea bargain? No. Court documents show this was an "open plea" rather than an agreement between the defense and the district attorney's office, meaning the judge set the sentence Chain received.

Did the district attorney's office object to the sentence? No. Former Santa Clara County prosecutor Bret Wasley, who was assigned to the case, told the Weekly that he did not object and that his priority was that Chain plead to a felony to ensure a higher level of supervision, rather than get additional jail time.

Did Persky approve Chain's attorney's motion to reduce his felony to a misdemeanor? No. Persky said at the June 4, 2015, sentencing that Chain should be "subject to a more formal period of supervision than misdemeanor probation would afford" but added that he would be "receptive" to reducing the charge to a misdemeanor after one year of compliance with probation, according to a court transcript.

Did Persky's sentence depart from the probation department's recommendation? No, but there's a caveat. The probation department recommended "a minimum term," noting the severity of the crime balanced against mitigating factors, including Chain's remorse, early plea and participation in treatment. However, Persky also said at sentencing that the court would be "receptive" to considering a reduction of the charge to a misdemeanor after one year of formal probation, while the probation department recommended Chain complete two years first.

Was Persky's sentence unusual? Deputy District Attorney Terry Harman wrote in a 2016 email to recall campaign chair Michele Dauber, released under a Public Records Act request, that the sentence was "quite low" but that Persky "is not the only judge who has given less than 6 months" in child pornography cases. "In general, first-time porn possession cases garner six months (in) county jail unless there is some aggravating factor warranting more time (i.e., the number of images)," Harman wrote.

The recall campaign researched sentencing outcomes for felony possession of child pornography in Santa Clara County between 2012 and 2016, comparing defendants who were also arrested as the result of child-pornography "sweeps," charged as first-time child-pornography offenders, had similar amounts and types of material, were charged with the same crime and also pleaded guilty or no contest to the charged offense. In 14 cases during that time period, every other defendant received a sentence of six months, according to the recall campaign.

Weekend jail for battery conviction

Ming Hsuan Chiang was arrested in Sunnyvale in October 2014 for domestic violence against his fiance, including punching her in the face multiple times, the victim told police. Chiang, then 35 years old and living in Sunnyvale, is from Taiwan. He was employed by Cisco Systems as a software engineer at the time. He had no prior criminal history.

Chiang was initially charged with battery. Under a plea bargain with Chiang's attorney, without Persky's involvement, the district attorney's office amended the charge to battery with serious bodily injury, according to prosecutor Kalila Spain, who was assigned to the case. Chiang pleaded no contest on April 8, 2016. Persky postponed his sentencing until after Chiang was set to renew his immigration visa, according to court records. DA Jeff Rosen's "collateral consequences" policy, directing prosecutors to consider immigration and other potential consequences to charges filed, may have played a role.

The probation department found Chiang exhibited four of 21 domestic-violence risk factors: history of violence against victim, homicide threats, rage and access to victim. Probation recommended that his sentence be suspended, he serve 72 days in county jail, he enroll in a domestic violence program, pay restitution and other fees.

Chiang was sentenced on June 2, 2016, to 72 days in-camp in county jail (meaning he would serve his sentence on weekends), 20 hours of community service, three years of formal probation, completion of a domestic violence program and to pay restitution to the victim. In a waived-referral memorandum, Deputy Probation Officer Monia Lassettre recommended that the judge determine restitution, "including but not limited to" $29,026. Persky presided over one July 2016 restitution hearing, according to court records, before his reassignment to civil cases. Judge Vincent Chiarello signed off on $1,188 in restitution for the victim's medical expenses in April 2017, court records show.

The recall campaign argues that Persky showed deference to Chiang over the victim, who made an impact statement in court in front of Persky, by postponing his sentencing and allowing him to serve time on weekends. The anti-recall campaign argues that Persky allowed Chiang to work on weekends to keep his job so he could pay restitution to the victim.

Why did Persky allow Chiang to serve his sentence on the weekends? Persky approved a request from Chiang's attorney to do this so he could keep his job to pay restitution to the victim, according to Spain.

Was it unusual for Persky to postpone Chiang's sentence? No. Spain said that it was postponed while the appropriate amount of restitution was determined, which didn't take place until after sentencing.

Was there a full probation report in this case? No. Persky waived the referral to probation for a full report. But the department provided a scaled-down report that recommended conditions for sentencing and restitution and included the department's assessment of Chiang's risk of further domestic violence.

A deferred sentence

Ikaika Gunderson was arrested in Sunnyvale in February 2015 for committing domestic violence against his ex-girlfriend, whom he shoved, backhanded and choked while they were sitting in a car in a parking garage, according to a summary in the police report. Gunderson admitted to police to hitting and pushing the victim.

The crime carries a punishment in state prison of two, three or four years, or in a county jail for not more than one year, or by a fine of up to $6,000, or by both that fine and imprisonment, according to penal code.

Gunderson, who is identified as Caucasian on the police report but has a Hawaiian mother, was 21 years old at the time and living in San Jose. He pleaded no contest to the felony domestic violence charge on May 26, 2015. Because Gunderson planned to attend college and play football in Hawaii, Persky deferred his sentence to July 2016, requiring Gunderson to return with proof that he had attended at least one Alcoholics Anonymous or Narcotics Anonymous meeting per week and completed a 52-week domestic violence program in Hawaii.

Persky agreed to reduce his felony to a misdemeanor upon completion of these terms, according to court transcripts. Gunderson would then be placed on three years of probation. Persky scheduled a progress hearing for December 2015 and excused Gunderson from appearing, allowing him to instead send a signed progress report, according to the court transcript.

After Gunderson failed to attend all of his required AA meetings, Persky sentenced Gunderson on March 10, 2016, to four months in county jail, three years of probation, completion of a certified domestic violence program and payments to a battered women's shelter and domestic violence fund, among other fees. Persky agreed to defer Gunderson's surrender date to June 1 so Gunderson could finish the school year in Hawaii, the court transcript states.

At the probation department's request, a hearing was held instead on March 21, 2016, at which point a different judge was presiding over the case, and Gunderson was remanded to serve his sentence, according to the district attorney's office. Gunderson was released on May 18, 2016.

The recall campaign argues that Persky showed leniency to Gunderson by deferring his sentence and violated the Interstate Compact for Adult Offender Supervision by failing to notify the state of Hawaii that Gunderson would be moving there. The anti-recall campaign argues that the deferred sentencing was not uncommon for a young offender with no prior record, that the district attorney's office did not object to it, and that the Interstate Compact is not relevant to allegations of bias on Persky's part.

Was this a plea bargain? Did the DA object to the terms of the agreement? No. The district attorney's office did not sign the plea agreement but also did not object to the terms of the agreement.

Was there a full probation report? Persky waived the referral to probation for a full report but later ordered a full report, according to court transcripts.

Was it unusual to defer Gunderson's sentencing for more than a year? It was not unprecedented, according to the district attorney's office. In most domestic violence cases, the sentencing occurs within a month or two of the plea, but it is within judge's discretion "to schedule sentencing based on the circumstances unique to a particular case or defendant," the DA's office wrote in emails released under the California Public Records Act. Judges may delay sentencing to avoid collateral consequences, such as on schooling or employment. "The sentence imposed in this case was not unusual," the DA's office stated, while the timing was "unusual, but not unprecedented."

Did Gunderson comply with the terms of his deferred sentence? No. By December 2015, Gunderson had not attended all of the required AA classes nor enrolled in school, according to a court transcript. Gunderson appeared in front of Persky in January 2016 having completed a portion of his domestic violence program and re-enrolled at the University of Hawaii. He planned to try out for the football team in the spring, according to a court transcript. Persky said that "if he's completely back on track with the original program and probation ... we can revert back to that." Prosecutor Ted Kajani objected, arguing that Gunderson's defense attorney, the judge and probation agreed in December that Gunderson "had not done what he laid out to do" and would be remanded into custody. Persky in January agreed but then requested a full report from probation and moved Gunderson's sentencing to March.

What is the Interstate Compact for Adult Offenders Supervision? Did it apply to this case? Yes. The compact "seeks to promote public safety" by supervising certain adult offenders who move to a new state.

Anthony Pennella, who oversees the interstate compact for the California Department of Corrections and Rehabilitation, confirmed to the Weekly that the compact applies to offenders whose sentencing has been deferred. An adult offender does not have to be on probation, according to the compact's Bench Book for Judges and Court Personnel. However, Pennella stated that a lack of awareness exists among judges as to when the compact applies. Gunderson, now living in Washington State, has been supervised under the compact since June 2016, Pennella confirmed.

What was Persky's responsibility in ensuring adherence to the compact? Pennella said this varies from county to county. Probation departments should be notified to initiate the transfer paperwork, he said. According to the DA's office, the defendant is required, once sentenced, to submit a transfer request to the Interstate Commission for Adult Offender Supervision.

At Gunderson's May 2015 plea hearing, prosecutor Kajani raised the issue for at least the second time, asking Persky if "probation needs to have any better understanding of the case given there would be out-of-state compacts," the court transcript states.

In response, Persky "ruled that having probation involved was not necessary," according to the district attorney's office. The district attorney's office said that because Gunderson's sentencing was postponed, he remained under the supervision of the court rather than probation department.

Was Gunderson arrested on another domestic violence charge after leaving California? Yes. He was arrested on Dec. 18, 2015, in Washington State for punching his father.

Was Gunderson a college athlete? Yes. He played football for Foothill College in Los Altos Hills.

A case for comparison?

Raul Ramirez, then 32, was arrested in Sunnyvale on Nov. 15, 2014, for sexually assaulting his roommate, a five-months-pregnant woman. Ramirez was charged with sexual penetration by force, violence, duress, menace or dear of bodily injury; and assault with intent to commit rape. Ramirez admitted to the crimes in a police interview.

On March 29, 2016, Ramirez pleaded no contest to the first charge, which has a mandatory minimum sentence of three years in state prison for those who plead guilty or no contest and a maximum of eight years. He agreed to three years in state prison, three years of parole and lifetime sex-offender registration.

The recall campaign argues that Persky gave Ramirez, an immigrant from El Salvador, a harsher sentence than Brock Turner. The anti-recall campaign argues that the cases are distinct and cannot be compared. (Ramirez pleaded no contest to a different charge with a mandatory minimum under a plea bargain, whereas Turner pleaded not guilty and was convicted by a jury.)

Was this a plea bargain? Yes. The district attorney's office offered for Ramirez to plead to one of the felony charges and serve the minimum required prison sentence.

Was there a full probation report? Yes, according to court records.

Did Persky oversee Ramirez's plea? No. Judge Gilbert Brown presided over the plea, according to court records. Persky, however, presided over pretrial conferences and negotiations, according to an email from Harman.

Sentencing a JC football player

Keenan Smith was arrested in Sunnyvale in August 2015 on charges of domestic violence, criminal threats and felony assault after shoving his girlfriend twice; twice punching a witness who intervened, causing the man to lose consciousness; and threatening a second witness, according to the police report. Smith, who is African-American, was then 19 years old, living in Santa Clara and a student at the College of San Mateo, where he played football.

Smith was charged with three counts: felony battery causing serious bodily injury (for the first witness), felony inflicting corporal injury on a specific person (his girlfriend) and misdemeanor threats to commit a crime resulting in death or great bodily injury (the second witness).

Smith did not attend his first court appearance in August 2015 and was remanded with bail set at $60,000.

On March 2, 2016, Smith pleaded no contest to three misdemeanor charges, agreeing to 120 days in the county's Weekend Work Program (a jail alternative for low-risk offenders), three years of probation and completion of a 52-week domestic-violence program. He was ordered to attend weekend work on Saturdays and Sundays for the first four months and on Sundays only from August onward to accommodate his football schedule, according to Barbara Muller, the public defender assigned to his case. (Muller has endorsed and contributed to Persky's retain campaign.)

On July 14, 2016, the probation department received an affidavit of contempt due to Smith's failure to start his sentence in April due to "conflict with school schedule and work schedule."

In August 2016, Smith appeared before Persky after missing three domestic violence classes, according to the court transcript. The probation officer stated Smith would be remanded if he did not bring proof of enrollment at the next court of hearing. Persky stated that he would give Smith "one more and probably last chance" to complete the domestic violence program.

In October 2016, Smith missed two weekend work sessions, one for being late (an unexcused absence) and another when he had a football-related concussion (excused with a doctor's note), Muller said. The district attorney's office requested a hearing to argue Smith had violated his probation. A different judge, Judge Diane Northway, amended Smith's sentence to be served in-camp in county jail on weekends, according to court records.

The recall campaign argues that Persky "tailored" Smith's sentence to his football schedule and failed to hold him accountable for probation violations. The anti-recall campaign argues Persky appropriately crafted a sentence that aimed at rehabilitating Smith by allowing him to stay in school, work full-time and play football to prevent him from re-offending.

Was this a plea bargain? Yes. The district attorney's office agreed to reduce the two felony charges in exchange for his no-contest plea, according to Muller.

Did Persky fail to hold Smith accountable for violating the terms of his probation? If an offender is not complying with the terms of his or her probation, the probation department would typically file a violation to bring it to the judge's attention, which probation did not do in this case, Muller said. She said the district attorney's office took the "highly unusual" step of requesting a hearing to argue Smith was in violation, which she attributed to media attention about the case.

Was Persky's sentence unusual? Muller said it is common for judges to craft sentences to accommodate low-risk offenders' work or school schedules. "They want people to remain in pro-social and educational and work environments if at all possible because that really is the only thing that prevents recidivism," she said.

Related articles:

Guest opinions: For and against the recall of Judge Persky

As recall vote nears, judge defends his record

Candidates for Persky's seat steer clear of Turner case

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Follow the Palo Alto Weekly/Palo Alto Online on Twitter @PaloAltoWeekly and Facebook for breaking news, local events, photos, videos and more.

Editor's note: This story has been updated to correct inaccurate information that stated Judge Aaron Persky modified Keenan Smith's sentence from weekend work program to in-camp in October 2016. Santa Clara County Superior Court Judge Diane Northway modified Smith's sentence.

Comments

101 people like this
Posted by Dilettante
a resident of Greenmeadow
on May 11, 2018 at 1:10 pm

Dilettante is a registered user.

This is an outstanding analysis of the Judge Persky cases that are being hotly debated in this recall. Elena Kadvany really did a thorough job. This analysis dovetails nicely with the analysis conducted by the Associated Press back on June 17, 2016, when they looked at twenty criminal cases Persky issued sentences on and found that he "often follows sentencing reports."
In reading Kadvany's analysis, I see in Judge Persky a man that truly strives to craft sentences that serve our societal demands for "justice," provide the victim with consolation and compensation, punish the criminal (and deter others), yet allow for rehabilitation and restoration of the criminal. In short, he is doing exactly the job that society requires from our judges.

If Persky had such a pattern that the recall advocates claim he did, the question to ask is, why didn't the prosecution address this earlier? Surely the district attorneys office would be tracking judges' decisions and looking for "patterns." The simple answer is: there is not a pattern. Remember too, the district attorney did not appeal, and the D.A. opposes the recall.

Persky's decision in the Brock Turner case was fully investigated by the Committee on Judicial Performance, and his sentence was found to be fully within his permissible parameters. Shockingly, the recall advocates impugn the Committee on Judicial Performance (they say it is one-sided, lacks transparency, and is an "agency with a long history of protecting judges"). These are shocking accusations to be made by a law professor. Recall forces, when asked if the CJP found Persky "clear," flatly reply "No." The facts assert otherwise. The recall movement decided not to appeal to the CJP, stating that: "Instead, we elected to take the issue directly to the people, who are the ultimate protection against judicial bias under the California Constitution." Essentially, the recall campaign made a decision to not follow normal, established, judicial steps by appealing the CJP findings (maybe that is because none of the recall leaders are lawyers?), but instead to muster up enough signatures to force this on to the ballot. This certainly may be a "democratic" way of forcing the issue (hey, we all get to vote!) but is certainly isn't furthering democracy-- in fact, it is a direct attack on the very underpinning of our democracy: judicial independence.

This brings us to the crux of this debate: fiction versus facts, mob-rule versus judicious reasoning. If you tend towards deliberate, objective, unbiased deliberation, the only correct vote on the Judge Persky recall is "NO."


21 people like this
Posted by MyOpinion
a resident of Community Center
on May 11, 2018 at 1:26 pm

MyOpinion is a registered user.

Voted No, if there was this much outrage about a similiar crime comitted in a poor community, I might feel differently. Much like the recent case of a 17 year old boy robbed of his phone and Cash in Palo Alto, the story has been featured in the Merc News twice this week, if a poor kid was robbed of his phone in a poor section of town do you think it would even be covered?


Like this comment
Posted by SCB94303
a resident of Adobe-Meadow
on May 16, 2018 at 11:01 pm

SCB94303 is a registered user.

‘...if a poor kid was robbed of his phone in a poor section of town do you think it would ever be covered?”

How can you compare robbing a person of his phone to rape?


1 person likes this
Posted by Dennis
a resident of Terman Middle School
on May 22, 2018 at 9:55 am

Dennis is a registered user.

Thank you Elena Kadvany for this really excellent piece of work. I hope a lot of people read it.


1 person likes this
Posted by Steve Dabrowski
a resident of Duveneck/St. Francis
on May 22, 2018 at 4:37 pm

Steve Dabrowski is a registered user.

This was a good critical piece of reporting, unlike the Weekly editorial last week. I noted on the latest piece of recall mailers that Kevin DeLeon is supporting the recall. I held him in pretty high regard until seeing that. [Portion removed.]


Sorry, but further commenting on this topic has been closed.

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