COMMISSION ON JUDICIAL PERFORMANCE
455 Golden Gate Avenue, Suite 14400
San Francisco, CA 94102

Contact:

Victoria B. Henley
Director-Chief Counsel
(415)557-1200

FOR RELEASE
December 19,2016

COMMISSION ON JUDICIAL PERFORMANCE CLOSES INVESTIGATION OF
JUDGE AARON PERSKY
The Commission on Judicial Performance (commission) is the independent state agency
responsible for investigating complaints of judicial misconduct involving state court judges and
for imposing discipline. Pursuant to article VI, section 18 of the California Constitution, the
commission may impose sanctions for judicial misconduct ranging from confidential discipline
to removal from office. Judicial misconduct usually involves conduct inconsistent with the
standards set forth in the California Code of Judicial Ethics. The commission can only impose
discipline on a judge if there is clear and convincing evidence of judicial misconduct.
The commission received thousands of complaints and petitions about Santa Clara
County Superior Court Judge Aaron Persky’s June 2, 2016 sentencing of Brock Allen Turner, a
Stanford University student-athlete who was convicted of sexually assaulting an unconscious
woman behind a dumpster outside a college party. The sentence imposed - six months in county
jail plus three years of probation and lifetime sex offender registration - was widely criticized as
being too lenient, and triggered significant public outrage and media coverage. Because Judge
Persky’s sentencing of Turner and the complaints to the commission received widespread public
attention, the commission issues this explanatory statement pursuant to article VI, section 18(k)
of the California Constitution.
The complaints submitted to the commission primarily alleged that: (1) Judge Persky
abused his authority and displayed bias in his sentencing of Turner; (2) the sentence was
unlawful; (3) the judge displayed gender bias and failed to take sexual assault of women
seriously; (4) the judge exhibited racial and/or socioeconomic bias because a non-white or less
privileged defendant would have received a harsher sentence; and (5) the judge’s history as a
student-athlete at Stanford University caused him to be biased in favor of Turner and that he
should have disclosed his Stanford affiliation or disqualified himself from handling the case.
Many complainants asked the commission to ensure that the sentencing in this case
matches both the crime and the jury’s verdict and to be sure that justice is done. The
commission is not a reviewing court - it has no power to reverse judicial decisions or to direct
any court to do so - irrespective of whether the commission agrees or disagrees with a judge’s
decision. It is not the role of the commission to discipline judges for judicial decisions unless
bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the
law, or any purpose other than the faithful discharge of judicial duty is established by clear and
convincing evidence. (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th
371,395-399.)
1

 The commission has concluded that there is not clear and convincing evidence of bias,
abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct
warranting discipline. First, the sentence was within the parameters set by law and was therefore
within the judge’s discretion. Second, the judge performed a multi-factor balancing assessment
prescribed by law that took into account both the victim and the defendant. Third, the judge’s
sentence was consistent with the recommendation in the probation report, the purpose of which
is to fairly and completely evaluate various factors and provide the judge with a recommended
sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly
identified does not support a finding of bias. The judge did not preside over the plea or
sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing
decision was either the result of a negotiated agreement between the prosecution and the defense,
aligned with the recommendation of the probation department, or both. Fifth, the judge’s
contacts with Stanford University are insufficient to require disclosure or disqualification. A
detailed discussion of the commission’s analysis is set forth below.
Overview of the Turner Case
On January 18, 2015, Brock Turner, a 19-year-old Stanford University freshman and
member of the swim team, was caught sexually assaulting an unconscious woman behind a
dumpster outside a college party. Two passersby witnessed the attack, called 911, and then
chased and detained Turner while they waited for law enforcement to arrive.
On March 30, 2016, a jury convicted Turner of three felony charges. Turner was found
guilty of violating Penal Code section 220(a)(1), assault with intent to commit rape, Penal Code
section 289(e), sexual penetration of an intoxicated person with a foreign object (based on digital
penetration) and Penal Code section 289(d), sexual penetration of an unconscious person with a
foreign object (again, based on digital penetration). The convictions for violating Penal Code
sections 289(d) and 289(e) were for the same conduct and therefore were punishable by a total of
three, six, or eight years in state prison for both violations. The Penal Code section 220(a)(1)
violation was punishable by two, four, or six years in state prison. Altogether, Turner faced a
maximum of 14 years in prison. At the time Turner was sentenced, the Penal Code allowed for a
downward departure to probation instead of a state prison term for convictions like Turner’s
upon a judicial finding that the case was “unusual” and that “the interests of justice would best
be served if the person is granted probation.”1
The district attorney’s office sought a six-year state prison sentence for Brock Turner.
Defense counsel urged the court to impose a more lenient sentence of four months in county jail
plus three to five years of probation. In a 16-page report, the probation department recom­
mended that the judge impose “a moderate county jail sentence, formal probation [for three
years], and sexual offender treatment. . . . ” (The maximum sentence in a county jail permitted
by law is one year.)1

1 On September 30, 2016, Governor Jerry Brown signed into law Assembly Bill 2888,
which amended Penal Code section 1203.065 to prohibit courts from granting probation instead
of a state prison sentence to anyone convicted of Penal Code section 289(d) or 289(e).

2

 At the June 2, 2016 sentencing hearing, the victim made a lengthy oral statement and
submitted a 12-page written statement. After hearing from the victim, the prosecutor, Turner’s
father, and Turner himself, Judge Persky took a short recess and then returned and announced his
indicated sentence. The judge noted at the outset of his remarks that the sentencing decision was
a difficult one.
And as I’m sure everyone in the court can appreciate and as was stated
several times today, it is a difficult decision. And I just want to, before I
give my tentative decision, read something from [Jane’s] statement, which
I think is appropriate —actually, two things from her statement. [ ] She
gave a very eloquent statement today on the record, which was a briefer
version of what was submitted to the Court, ffl] Let me just say for the
record that I have reviewed everything, including the sentencing
memorandum, the probation report, the attachments to the probation
report, and the respective sentencing memoranda. [ ] And so [Jane]
wrote in her written statement, [as read] ‘Ruin a life, one life, yours. You
forgot about mine. Let me rephrase for you. “I want to show people that
one night of drinking can ruin two lives” - - you and me.[’] [][] ‘You are
the cause; I am the effect. You have dragged me through this hell with
you, dipped me back into that night again and again. You knocked down
both our towers. I collapsed at the same time you did. Your damage was
concrete: Stripped of titles, degrees, enrollment. My damage was
internal, unseen. I carry it with me. You took away my worth, my
privacy, my energy, my time, my safety, my intimacy, my confidence, my
own voice, until today.’ [^[] And then later on in her written statement,
she writes, [as read] ‘If you think I was spared, came out unscathed, that
today I ride off into the sunset while you suffer the greatest blow, you are
mistaken. Nobody wins. We have all been devastated. We have all been
trying to find some meaning in all of this suffering.’ fl[] And here--1
think this is relevant to the —to the sentencing decision —she writes, [as
read] ‘You should have never done this to me. Secondly, you should
never have made me fight so long to tell you you should never have done
this to me. But here we are. The damage is done. No one can undo it.
And now we both have a choice. We can let this destroy us. I can remain
angry and hurt, and you can be in denial. Or we can face it head on: I
accept the pain; you accept the punishment; and we move on.’
(R.T. 29:10-30:19.)
Then, the judge announced that his tentative decision was to find unusual circumstances
and grant probation instead of a state prison sentence, as recommended by the probation
department, to begin with six months in county jail. The judge then stated:I
I understand that —as I read - that [Jane’s] life has been devastated by
these events, by the —not only the incidents that happened, but the —the
criminal process has had such a debilitating impact on people’s lives, most
notably [Jane] and her sister, flf] And, also, the - one other factor, of
course, is the media attention that has been given to this case, which
3

 compounds the difficulties that participants in the criminal process face,
m So I acknowledge that devastation. fl[] And —and to me, the -- not
only the —the incident, but the criminal proceedings —preliminary
hearing, trial, and the media attention given to this case —has —has in a —
in a —in a way sort of poisoned the lives of the people that have been
affected by the defendant’s actions, flf] And in my decision to grant
probation, the question that I have to ask myself, again, consistent with
those Rules of Court, is: Is state prison for this defendant an antidote to
that poison? Is incarceration in state prison the right answer for the
poisoning of [Jane’s] life? []j] And trying to balance the factors in the
Rules of Court, I conclude that it is not and that justice would best be
served, ultimately, with a grant of probation.
(R.T. 31:4-25.)
Judge Persky explained that probation was prohibited for violations of Penal Code
section 220 except in unusual cases where the interest of justice would best be served. The
judge then cited the California Rules of Court, which sets forth factors that “may indicate the
existence of an unusual case in which probation may be granted if otherwise appropriate.” (Cal.
Rules of Court, rule 4.413.) Applying California Rules of Court, rule 4.413(c)(2)(C), the judge
found that Turner’s youth and lack of a significant record reduced his culpability, thereby
overcoming the statutory limitation on probation.2 The judge then identified and discussed each
of the 17 factors outlined in California Rules of Court, rule 4.414.
The judge found the following crime-related criteria to be relevant to his decision:
•
•
•
•
•

the nature, seriousness, and circumstances of the crime as compared to other
instances of the same crime
the vulnerability of the victim
whether the defendant inflicted physical or emotional injury
whether the defendant was an active participant in the crime
whether the defendant demonstrated criminal sophistication

With respect to the vulnerability of the victim, the judge stated, “And the victim in this
case was extremely vulnerable. That’s an element of the crime with respect to Counts 2 and 3,
but not with respect to Count 1. So I have considered that.” (R.T. 33:23-26.) As to the factor
relating to the physical or emotional injury inflicted by the defendant, the judge stated, “And as
we’ve heard today, as I heard at trial, there was both physical and devastating emotional injury
inflicted on the victim. That weighs, obviously, in favor of denying probation.” (R.T. 33:2834:3.)
2 Judge Persky noted that although the probation department implied in its report that
because Turner was intoxicated at the time of the assault, this would be another basis for
overcoming the statutory prohibition of probation pursuant to California Rules of Court, rule
4.413(c)(1)(A), the judge was “not relying on that circumstance” and did not “attach very much
weight to that.” (R.T. 32:15,33:19-20.)

4

 The judge found the following defendant-related criteria to be relevant to his decision:
•
•
•
•
•
•

the defendant’s prior criminal record
the defendant’s willingness and ability to comply with the terms of probation
the likely effect of imprisonment on the defendant
the adverse collateral consequences on the defendant from the felony conviction
whether the defendant is remorseful
whether or not the defendant was likely be a danger to others

With respect to the factor relating to the likely effect of imprisonment on the defendant,
the judge indicated that he believed probation was appropriate because “a prison sentence would
have a severe impact on [Turner],” acknowledging that a state prison sentence would have a
severe impact on a defendant “in any case,” but, he said, “I think it’s probably more true with a
youthful offender sentenced to state prison at a —a young age.” (R.T. 35:22-26.)
With respect to the factor relating to the likelihood of future dangerousness, the judge
stated that he believed Turner “will not be a danger to others.” (R.T. 38:5.) The probation
department had evaluated the defendant’s dangerousness using two assessment tools and advised
in its report to the court that Turner was not very likely to re-offend. Specifically, the probation
department reported that Turner had received a score of 3 on the Static-99R, an actuarial
measure of sexual offense recidivism, which placed him in the “Low-Moderate Risk Category
for being charged or convicted of another sexual offense.” Probation also assessed Turner using
the Corrections Assessment Intervention System (CAIS), “a standardized, validated assessment
and case management system developed by the National Council on Crime and Delinquency
[which] assesses a defendant’s criminogenic needs and risk to re-offend.” The probation
department reported that the CAIS had determined that Turner needed to learn new coping skills
and get treatment relating to drug and alcohol abuse, and that he would benefit from family
therapy. The probation report stated that each of these needs could be addressed while he was
on probation.
After the judge announced his indicated sentence, the prosecutor made a statement,
urging the judge to impose (at a minimum) the maximum time in county jail (i.e., a year) and not
just six months. Defense counsel then made a statement, noting that “the Court’s recitation of
the Court’s view of the Judicial Council rules and the sentencing factors is certainly one of the
most complete and thorough that I’ve heard in any case for some time.” (R.T. 43:25-28.) A
deputy probation officer then spoke on behalf of the probation department, urging the court to
follow its tentative decision. She indicated that the probation department had followed statutory
guidelines, had balanced “the character of the defendant and facts of the case,” and had
submitted an “unbiased,” “fair and complete recommendation.” (R.T. 44:23-45:7.) Thereafter,
Judge Persky announced that he would adopt his tentative decision and he read the terms of
probation into the record, including the requirements that Turner register as a lifetime sex
offender and submit to random drug and alcohol testing.3
«

3

.

.

On July 25, 2016, the terms of Turner’s probation were revised to include the
requirement that he undergo drug and alcohol counseling. The probation department requested
the revision after Turner was caught lying about his high school drug and alcohol use.

5

 Turner filed a notice of appeal on June 2, 2016, immediately after the sentence was
imposed. The appeal is still pending. On Friday, September 2, 2016, Brock Turner was released
after serving three months in county jail.4
The Sentence Imposed on Brock Turner Was Not Unlawful
The sentence imposed in the Turner case has been widely criticized by complainants as
inadequate punishment in light of the crime committed. Some complainants believe that Judge
Persky’s sentencing decision was not lawful. The sentence imposed by Judge Persky, however,
was within the parameters set by Penal Code section 1203.065(b) and therefore was not
unlawful. The transcript of the Turner sentencing hearing reflects the judge’s finding that
Turner’s youth and lack of a significant record reduced his culpability, thereby overcoming the
statutory limitation on probation. The transcript also reflects the judge’s consideration of the
factors that the rules require a court to consider to determine whether probation is appropriate
instead of a state prison sentence.
Some complainants also believe that the judge’s sentencing decision constituted an abuse
of his discretion. In particular, some suggest that it was improper for the judge to consider
Turner’s youth and his level of intoxication as mitigating factors. Others believe that the judge
gave unfair mitigating weight to what he perceived was Turner’s remorse. Even if it were
improper for the judge to assess those factors as he did, those issues are properly addressed on
appeal. Canon 1 of the Code of Judicial Ethics states explicitly that “[a] judicial decision or
administrative act later determined to be incorrect legally is not itself a violation of this Code.”
Under the standard set by the California Supreme Court, even if the judge failed to follow a
statute or abused his discretion, the commission cannot impose discipline unless the error
“clearly and convincingly reflect[ed] bad faith, bias, abuse of authority, disregard for
fundamental rights, intentional disregard of the law, or any purpose other than the faithful
discharge of judicial duty . . . . ” (Oberholzer v. Commission on Judicial Performance, supra, 20
Cal.4th 371, 395-399.) As discussed in more detail below, there is not clear and convincing
evidence of bias or any other factor required for a finding of judicial misconduct.
There is Not Clear and Convincing Evidence of Judicial Bias
The presence or absence of judicial bias has been established in some cases by examining
whether a judge’s remarks or conduct reflected bias. (See, e.g., In re Glickfeld (1971) 3 Cal.3d
891; Public Admonishment o f Judge Johnson (2012).) Bias has also been assessed in some
instances by examining decisions in other similar cases. (See, e.g., In re Complaint o f Judicial
Misconduct (9th Cir. 2014) 751 F.3d 611.)

4 Turner appears to have served half of his county jail sentence. Penal Code section
4019(b)-(c) dictates that for each four-day period spent in county jail, two days is deducted from
the inmate’s sentence, reducing the sentence by half.

6

 1. Judge Persky’s Remarks at the Turner Sentencing Hearing
When granting probation for certain sex offenses under Penal Code section 1203.065(b),
judges are required to specify on the record the circumstances indicating that the interests of
justice would best be served by that disposition. When probation is granted, judges are also
required to state the primary factor or factors that support the judge’s exercise of discretion to
grant probation. (Cal. Rules of Court, rule 4.406.)
Some complainants contend that the judge’s remark at the Turner sentencing hearing that
Turner “will not be a danger to others” reflected bias. As discussed above, future dangerousness
is one of the factors that a judge must consider when deciding whether to grant or deny
probation. (See Cal. Rules of Court, rule 4.414(b)(8).) Moreover, the remark tracked the results
of two clinical tests of Turner’s future dangerousness contained in the probation report.
Some complainants contend that Judge Persky’s statement that a prison sentence would
“have a severe impact on [Turner]” reflected bias. Again, the likely impact of imprisonment on
the defendant is one of the factors to be considered in determining whether probation is
appropriate. (See Cal. Rules Court, rule 4.414(b)(5).) Moreover, the judge acknowledged that
state prison is likely to have a severe impact on a defendant “in any case,” and, he explained, “I
think it’s probably more true with a youthful offender sentenced to state prison at a - at a young
age.”
The transcript from the sentencing hearing does not support the contention that the judge
was implicitly referencing Turner’s race, socioeconomic status, Stanford affiliation, or role as a
college athlete when he remarked on the “severe impact” that prison would have, or when he
said that Turner “will not be a danger to others.” The transcript also does not support the
allegation that the judge did not objectively consider the damage to the victim and expressed no
sympathy for the victim.
In sum, the commission concluded that neither the judge’s statements about the impact of
prison and the defendant’s future dangerousness - factors that the judge was required to address
on the record - nor any other remarks made by Judge Persky at the sentencing hearing constitute
clear and convincing evidence of judicial bias.
Cases in which judges have been reversed and disciplined for making statements that
reflect bias stand in stark contrast to the Turner case.5 For example, in the case of People v.
Beasley (1970) 5 Cal.App.3d 617, the Court of Appeal reversed the trial court’s order of
probation and dismissal of various rape, robbery, and kidnapping charges. In open court, the
judge referred to the victim as the “alleged victim” and ridiculed the police inspector who
accompanied her to the defendants’ probation hearing and his superior officer who had instructed
5 “A judge’s comments during sentencing, however, are one type of in court statement
that commissions and courts are hesitant to subject to discipline, a reluctance based on concern
that sanctions would discourage judges from articulating the bases for their sentencing
decisions.” (Gray, The Line Between Legal Error and Judicial Misconduct: Balancing Judicial
Independence and Accountability (2004) 32 Hofstra Law Review 1245. See, e.g., In re Inquiry
Concerning Lichtenstein (Colo. 1984) 685 P.2d 204; In re Hocking (Mich. 1996) 451 Mich. 1.)

7

 the inspector to accompany the victim to court. The appellate court found that Judge Glickfeld’s
“incomprehensible tirade” against the victim, her police inspector attendant, and his supervisor
indicated “a lack of the impartial discretion, guided by fixed legal principles in conformity with
the spirit of the law, required by People v. Russel [(1968)] 69 Cal.2d 187, 194.” {People v.
Beasley, supra, 5 Cal.App.3d at p. 633, italics in original.) In 1971, a year after the appellate
decision in Beasley, the California Supreme Court censured Judge Glickfeld. The commission’s
recommendation for discipline was based on the remarks referred to in the appellate decision and
on the judge’s referral to the victim, during an in-chambers conversation at which the victim was
present, as a “horse’s ass.” The Supreme Court censured Judge Glickfeld for referring to the
victim “in an insulting and inexcusable manner” during a conversation in chambers, and for his
“intemperate” remarks in open court. {In re Glickfeld, supra, 3 Cal.3d 891.)
More recently, in 2012, the commission publicly admonished Judge Derek Johnson for
remarks he made at the sentencing hearing in a rape case that created the impression that he
could not be impartial in rape cases where the victim suffered no serious bodily injury showing
resistance. The judge relied on his own “expert opinion,” based on his experience as a
prosecutor, saying, “I’m not a gynecologist, but I can tell you something: If someone doesn’t
want to have sexual intercourse, the body shuts down. The body will not permit that to happen
unless a lot of damage is inflicted . . . . ” The judge also said that the case “trivializes a rape,”
was “technical,” and was “more of a crim law test than a real live criminal case.” {Public
Admonishment o f Judge Johnson (2012).)
2. Judge Persky’s Sentencing Decisions in Other Similar Cases
In the wake of the Turner sentencing decision, some have pointed to other criminal cases
handled by Judge Persky as proof of his bias in favor of white and/or privileged male defendants,
particularly college athletes, and/or of his failure to take violence against women seriously. The
commission concluded that the cases cited in support of that proposition do not provide clear and
convincing evidence of judicial bias.
In People v. Raul Ramirez (No. B1475841), the defendant sexually assaulted his
roommate while she was conscious. Through counsel, Ramirez negotiated a deal in which he
pleaded guilty to a violation of Penal Code section 289(a) in exchange for a three-year state
prison sentence. Ramirez was never sentenced because he failed to appear at his sentencing
hearing. Some have compared the three-year sentence that was to be imposed on Ramirez with
Turner’s lighter sentence, arguing that the only explanation for the disparity was Ramirez’s
Salvadoran nationality. However, although Judge Persky handled proceedings earlier in the
case, it was not Judge Persky who handled the hearing at which Ramirez entered his guilty plea,
but another trial judge; thus, the Ramirez case cannot be used to demonstrate disparate treatment
in sentencing by Judge Persky. In addition, the sentence to be imposed on Ramirez was the
result of a negotiated agreement between the defense and the prosecution. Finally, Ramirez
pleaded guilty to forcible sexual penetration of a conscious or unimpaired person, which carries a
statutory mandatory minimum sentence of three years in state prison. California law explicitly
prohibits a downward departure for a violation of Penal Code section 289(a) under any
circumstances, whereas the Penal Code sections Brock Turner was convicted of violating
permitted (at the time) a downward departure to probation in certain circumstances.

8

 Some have pointed to Judge Persky’s sentencing in People v. Ming Hsuan Chiang (No.
B1475227), People v. Ikaika Lukas Gunderson (No. B1577341), and People v. Keenan Smith
(No. B 1581137), each of which involved domestic battery charges, and in People v. Robert
Chain (No. B1473538), which involved possession of child pornography charges, as evidence of
alleged bias in favor of defendants who are white or privileged or college athletes and as
evidence that the judge does not take violence against women seriously.
In Gunderson, the judge accepted the defendant’s guilty plea in May 2015, pursuant to a
negotiated agreement between the defense and the prosecution. The judge’s deferral of
sentencing, and the judge’s indication that he would allow a reduction of the felony charge to a
misdemeanor charge at sentencing if the defendant complied with the plea conditions, were both
part of the agreement. On March 10, 2016, after Gunderson failed to comply with the conditions
of the plea, the judge sentenced the defendant on the felony charge. The sentence imposed
aligned with the recommendation of the probation department.
In Chiang, the judge accepted the defendant’s guilty plea in April 2016 and imposed a
sentence in June 2016, pursuant to a negotiated agreement between the defense and the
prosecution. The sentence imposed aligned with the recommendation of the probation
department.
In Smith, Judge Persky accepted the defendant’s guilty plea in March 2016, pursuant to a
negotiated agreement between the defense and prosecution. The judge sentenced the defendant
pursuant to that agreement. There was no probation report.
In Chain, Judge Persky accepted the defendant’s guilty plea in June 2015. After
discussions with the defense and the prosecution, the judge imposed a sentence to which the
prosecution did not object. The sentence imposed aligned with the recommendation of the
probation department.
Judges are required to consider a probation report although they are not required to
follow it. (Pen. Code, § 1203(b)(3).) A county probation department is an arm of the superior
court, and one of its main purposes is to assist the court in arriving at an appropriate disposi­
tion. {People v. Villarreal (1977) 65 Cal.App.3d 938, 945.) “It is also fundamental that the
probation decision should not turn solely upon the nature of the offense committed, but ‘should
be rooted in the facts and circumstances of each case.’ [citations omitted]” {Ibid.) Judge
Persky’s-sentencing decisions in the Chiang, Gunderson, and Smith cases resulted from
negotiated agreements between the defense and the prosecution, and the prosecution did not
object to the sentence imposed in the Chain case. In three of the four cases, the judge’s
sentencing decisions aligned with the recommendations of the probation department (as it did in
Turner). (There was no probation report in the fourth case.) Accordingly, these decisions do not
provide clear and convincing evidence to support the contention that Judge Persky’s decisions
reflect personal bias in favor of white criminal defendants and/or more privileged criminal
defendants, or that he takes crimes involving violence against women less seriously.

9

 Judge Persky Was Neither Required to Disclose His Stanford Affiliation Nor Was
He Required to Recuse Himself
Some complainants believe that Judge Persky should have disqualified himself from the
Turner case because he, like Brock Turner, attended Stanford University and played sports while
he was a student there. At the very least, they argue, the judge should have disclosed his
Stanford connection. The commission determined that neither disclosure nor disqualification
was required in the Turner case.
Code of Civil Procedure section 170.1 sets forth the circumstances requiring judicial
disqualification. Code of Civil Procedure section 170.1 (a)(6)(A)(iii) states that a judge shall be
disqualified if “[f]or any reason [a] person aware of the facts might reasonably entertain a doubt
that the judge would be able to be impartial.” Canon 3E(2) requires judges to disclose on the
record information that is reasonably relevant to the question of disqualification, even if the
judge believes there is no basis for disqualification.
Judge Persky attended Stanford University in the 1980’s. He earned a bachelor’s degree
in 1984 and a master’s degree in 1985. As an undergraduate student, Judge Persky was the
captain of the Stanford men’s lacrosse team. Since finishing his studies more than three decades
ago, the judge’s contacts with Stanford University have been minimal. Excluding payments to a
Stanford-affiliated preschool, and excluding a small 2014 contribution to a Stanford-affiliated
children’s hospital, Judge Persky and his spouse have donated small sums of money to Stanford
University during the 31 years since he completed his studies, totaling $1,205. Most of these
donations were to the Stanford Fund for Undergraduate Education. Judge Persky also has made
two donations ($50 in 1997 and $100 in 1999) to the Stanford Men’s Lacrosse Program, totaling
$150. In addition to his financial contributions to Stanford University, the judge has had some
non-fmancial ties to the university over the years. He is a lifetime member of the Stanford
Alumni Association (a membership his mother purchased for him after he finished his studies);
he has attended various alumni events and reunions over the years (for which he paid the
prevailing alumni rate); and he has sporadically volunteered his time over the years (for alumni
career networking and class reunions, and with a medical school psychiatry class). In sum, the
judge has had minimal ties to the university since he graduated in 1985.
In Leland Stanford Junior University v. Superior Court (1985) 173 Cal.App.3d 403, a
civil action was brought against Stanford and several public entities challenging certain
development plans on campus. A motion to disqualify the trial judge was brought based on the
facts that the judge was a graduate of Stanford Law School, a founder of the Santa Clara County
chapter of the Stanford Law Society in the mid-1960’s and the president of that chapter from
1969 to 1971, and a member of the law school’s Board of Visitors from 1969 to 1972. Since
then, the judge’s only association with the school was “as a graduate attending graduate
gatherings.” {Id. at pp. 405-406.) The trial court disqualified the judge, but the appellate court
reversed: “We conclude as a matter of law that the ‘average person on the street,’ aware of the
facts, would find Judge Thompson’s activities in and before 1972 both so remote and so
unrelated to the management of Stanford’s land and physical facilities as to raise no doubt as to
Judge Thompson’s ability to be impartial in this matter.” {Id. at p. 408.)

10

 In McCartney v. Superior Court (1990) 223 Cal.App.3d 1334, a breach of contract and
related tort claims action was brought by a former student of the University of Southern
California (USC) against that institution. The student appealed the denial of a motion to
disqualify the trial court commissioner because the commissioner had attended USC over 30
years earlier. Citing Leland Stanford Junior University v. Superior Court, supra, 173
Cal.App.3d 403, the court concluded that no reasonable person would question the
commissioner’s impartiality. (Id. atp. 1340.)
More recently, in Allphin v. United States (Fed. Cir. 2014) 758 F.3d 1336, 300 former
service members, who were discharged as a result of a program seeking to reduce the number of
enlisted personnel serving in the Navy, brought a wrongful discharge action seeking
reinstatement or damages. Appellants filed a motion seeking recusal of the judge based on her
former employment at the Department of Justice from 1976 to 1987 and as an attorney for the
Navy from 1987 to 1996. The federal circuit court affirmed the trial judge’s denial of the
motion, determining that her prior employment did not create a reasonable basis for questioning
her impartiality. “Appellants’ subjective beliefs about the judge’s impartiality are irrelevant.
The judge’s prior work for the Department of Justice and the Navy over seventeen years ago
does not raise a reasonable question as to her impartiality. A ‘mere prior association [does not]
form a reasonable basis for questioning a judge’s impartiality.’” (Id. at p. 1344, citing Maier v.
Orr (Fed. Cir. 1985) 758 F.2d 1578.)
In the underlying criminal action out of which the current claims against Judge Persky
arise, Stanford University was not a party or counsel, thus making his association with his alma
mater even more attenuated as a ground for recusal. In Cline v. Sawyer (Wyo. 1979) 600 P.2d
725, the Wyoming Supreme Court affirmed an order denying a party’s disqualification challenge
to the trial judge based on the relationship between the judge and the respondent, who attended
the same university. As is pertinent here, the court noted: “The affidavit alleges that the judge
and [respondents] attended the same university at the same time where ‘they may have’ belonged
to the same fraternities or associations. Certainly such does not reflect a prejudgment of this
case by the judge. It does not reflect a leaning of his mind in favor of [respondents] to the extent
that it will sway his judgment or to the extent that he would make his decisions in the matter
other than on the evidence placed before him.” (Id. at p. 728, italics in original.)
The commission concluded that Judge Persky’s ties to Stanford University do not
constitute the kind of relationship or experience that required disclosure or recusal in the Turner
case, and they are not sufficient to establish bias or favoritism for Brock Turner or any Stanfordaffiliated litigant.
Conclusion
“An independent, impartial, and honorable judiciary is indispensable to justice in our
society.” (Cal. Code of Jud. Ethics, canon 1.)
An independent judge is one who is able to rule as he or she
determines appropriate, without fear of jeopardy or punishment.

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 So long as the judge makes rulings in good faith, and in an effort to
follow the law as the judge understands it, the usual safeguard
against error or overreaching lies in the adversary system and
appellate review.
(Shaman, et al., Judicial Conduct and Ethics (5th ed. 2013) Use of Power, § 2.02, p. 2-5.)
In this matter, the commission did not find clear and convincing evidence of misconduct
by Judge Persky. Accordingly, the participating commission members voted unanimously to
close, without discipline, its preliminary investigation of the complaints against the judge
regarding his sentencing decision in the Turner case. Commission members Honorable Erica R.
Yew of the Santa Clara County Superior Court and Richard Simpson are recused and did not
participate in this matter.
Judge Persky is represented by Kathleen M. Ewins, Esq., of San Francisco, California.
* * *

The commission is composed of six public members, two lawyers, and three judicial officers.
The chairperson is Anthony P. Capozzi, Esq.
For further information about the Commission on Judicial Performance, see the
commission’s website at http://cjp.ca.gov.

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