Monday, June 4, 2018

Stanford's Michele Dauber's assault on the rule of law

I have followed this case only slightly until recently.  Briefly:   Brock Turner, a Stanford undergraduate, was convicted of digital rape of a woman after a fraternity party; the judge in the case, Judge Persky, gave him a relatively lenient sentence (i.e., little jail time, but a lifetime scartlet letter as a "sex offender") given that he was a first offender, that he was young, and intoxicated (as was the victim).  The sentence imposed had actually been recommended by the probation officer who evaluated the case. 

Michele Dauber, a law professor at Stanford, whose own child was friends with the victim, took a strong interest in the case, and has since launched a disgraceful jihad against the judge, well beyond Donald Trump's racist insults at a judge in California overseeing the "Trump University" fraud case.  Professor Dauber launched a recall petition against a judge whose sentencing decision she disliked, and whose record she then misrepresented.  A lengthy story has now appeared about her jihad.  One of the most important facts is that Judge Persky is a liberal, who tries to find ways to avoid jail time for criminal offenders.   If I believed in gods, I would say, "God bless him."

Academic freedom protects Professor Dauber's right to undermine the rule of law.   It does not protect her from the opinion of others members of her profession. 

Fortunately, and as I would have expected, the vast majority of the Stanford Law faculty opposes her recall effort.  I quote the letter in part, since it makes clear how outrageous Professor Dauber's behavior is: 

We the undersigned are part of a broad diversity of law professors from California universities; among our relevant fields of specialization are criminal law, gender and law, and constitutional law. We write in strong opposition to the campaign to recall Judge Aaron Persky of the Santa Clara County Superior Court. We do so because this recall campaign, which just now is beginning the formal process of gathering signatures, threatens the fundamental principles of judicial independence and fairness that we all embed in the education of our students.


The mechanism of recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms. None of these criteria applies to Judge Persky. The recall campaign was instigated in response to a sentencing decision in the case of Brock Turner, where the judge followed a probation report recommendation and exercised discretion towards a lenient sentence, in accordance with the California Penal Code. We appreciate that some people (indeed including some of the signers of this letter) might have chosen a different result, but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional, a probation officer) -- not on public outcry about a controversial case. Judge Persky's decision was controversial, but it was a lawful decision. Other sentencing decisions by Judge Persky that have been challenged by the recall movement have followed the equally common and legitimate practice of accepting a recommendation agreed on by the prosecution and defense.


We believe it is critical to distinguish disagreement with a particular sentence or allegations about a handful of decisions from an attack on a judge’s overall record. Thus, it is vital to recognize the following: the Santa Clara County Bar Association issued a 2016 statement opposing attempts to remove Judge Persky from the bench; this can be found at The State Commission on Judicial Performance, an independent state agency,conducted a review and concluded that the claims of bias were unfounded. ( We encourage you to read both documents for details of their reasoning.


The last three elected District Attorneys of Santa Clara County, with 27 years of leadership in that office, are against the recall; surely, they would speak up if they found the judge’s record to be improper. Similarly, the defense bar’s outpouring of opposition to the recall underscores Judge Persky’s reputation for being unbiased against those most harshly disadvantaged by our criminal justice system. A broad range of lawyers who have appeared before Judge Persky have publicly attested to the respect they have for him as a fair and impartial jurist.


Judicial independence is a bulwark principle of the rule of law.   Judges must be able to render their decisions without political retribution.  Professor Dauber, a law professor no less, has put herself on the wrong side of this issue, which is shameful.

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