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DA disqualifies Judge Persky from new sex-assault case

Backlash over Turner sentencing continues for Aaron Persky

The embattled judge who presided over the trial and sentencing of former Stanford University student-athlete Brock Turner was disqualified Tuesday from hearing an unrelated sexual-assault case.

In a "a rare and carefully considered step," Santa Clara County District Attorney Jeff Rosen filed a peremptory challenge against Judge Aaron Persky, preventing him from presiding over a preliminary hearing for a male Kaiser Permanente surgical nurse accused of sexually assaulting a sedated woman, according to a statement from the district attorney's office.

Rosen filed the challenge after Persky dismissed a misdemeanor stolen property case in the middle of a trial before the jury deliberated, ruling that the state had not proven its case. Persky reportedly faced backlash over the Turner sentencing during jury selection for this case, in which some prospective jurors refused to serve, according to several media reports.

Although rarely used, in California attorneys on either side of a case may unilaterally remove a judge if they believe the judge is prejudiced against the attorney or the defendant and that a fair and impartial trial is not possible. The disqualification is automatic and requires no showing of cause.

"We are disappointed and puzzled at Judge Persky's unusual decision to unilaterally dismiss a case before the jury could deliberate," Rosen said in a statement. "After this and the recent turn of events, we lack confidence that Judge Persky can fairly participate in this upcoming hearing in which a male nurse sexually assaulted an anesthetized female patient."

In the case, surgical nurse Cecil Webb, 54, has been charged with one felony count of sexual battery of a hospitalized person for allegedly touching the genitals and breasts of a woman who was under light sedation in 2014 at Kaiser Permanente's Santa Clara Medical Center.

Rosen said that in future cases, his office "will evaluate each case on its own merits and decide if we should use our legal right to ask for another judge in order to protect public safety and pursue justice."

Since sentencing Turner to six months in jail and three year's probation for sexually assaulting an unconscious woman outside a campus fraternity party last January, Persky now faces a mounting recall effort and intense criticism from advocates against sexual violence, state lawmakers and others across the country. A juror in the case spoke publicly for the first time this week in an open letter to Persky, telling him he was "absolutely shocked and appalled" by the "ridiculously lenient" sentence.

Rosen, however, quickly spoke out against the recall effort soon after the sentencing.

"While I strongly disagree with the sentence that Judge Persky issued in the Brock Turner case I do not believe he should be removed from his judgeship," he said in a statement.

In a statement Friday, the Santa Clara County Bar Association (SCCBA) expressed its opposition to the recall effort, noting "the importance of judicial independence."

"Judges have a duty to apply the law to the facts and evidence before them, regardless of public opinion or political pressure," the statement reads. "If judges had to fear direct, personal repercussions as a result of their decisions in individual cases, the rule of law would suffer."

The bar association said it "has seen no credible assertions that in issuing the sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith."

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Comments

4 people like this
Posted by IM Sayldog
a resident of another community
on Jun 15, 2016 at 9:58 am

"...in California attorneys on either side of a case may unilaterally remove a judge if they believe the judge is prejudiced against the attorney or the defendant and that a fair and impartial trial is not possible. The disqualification is automatic and requires no showing of cause."

This cannot be allowed, otherwise it means Trump is morally and ethically right for suggesting that Judge Curiel is prejudiced against his case.


2 people like this
Posted by Nuance
a resident of Atherton: other
on Jun 15, 2016 at 11:42 am

The disqualification must be done before the judge makes any rulings.


Like this comment
Posted by Strange post above
a resident of another community
on Jun 20, 2016 at 9:28 am

That first post is strange. A preemptory challenge (by a side in a case) of one judge under California law is available only before the judge starts ruling in the case (as the second poster notes). After that, a judge can still be disqualified for a good reason such as bias or prejudice but the reason must be shown to the satisfaction of the challenged judge or, if not, a judge from another county randomly assigned to consider the challenge. Trump's fraud case is in federal court. There is no preemptory challenge available there but there is a similar procedure for challenging a judge for such things as bias or prejudice. It is not, though, by attacking the judge in the press. Moreover, why would anyone sane actually think that a judge born in Indiana but (allegedly) "proud of his Mexican heritage" would be out to disgrace the judiciary just to "get" Trump? It actually appears to be another example of Trump's own bigotry. Either that, or Trump is just employing a tactic he learned in business: lie and stick to it.


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