Judicial Review

Public anger over judge and jury decisions is as old as the creation of the three branches of American government. Fortunately we haven’t yet reached the state of some countries where judges are gunned down in the streets. But we moved a step closer to it with the recent recall of Santa Clara County Judge Aaron Persky, who handed a six-month sentence to a Stanford athlete for sexually assaulting a drunk, unconscious woman during a frat party. Judges can generally impose sentences within a mandated range of incarceration duration when a defendant is found guilty on charges against him, and Persky chose the lenient end of the spectrum. Emotional demonstrations by women opposed to what they saw as an overly light sentence and fueled by the explosive #Me too movement, called for the judge’s head and recalled him. He was recalled in the June 5 election of this year on a 59% to 41% vote. Champagne bottle corks flew as women who worked to recall Persky rejoiced. But was there really anything to celebrate? The judge’s recall was the first in California in more than 80 years.

Moorman

“I am hoping that this recall and its success do not portend some new trend,” said Mendocino County Presiding Judge Ann C. Moorman, who is responsible for overseeing county-wide judicial operations. Mendocino County has eight judges; those judges select their presiding judge every two years. “I’m a believer in the three branches of government,” she continued. “I worry about our society, both state and national, if we start seeing a lot of recalls.” She warned that the injection of politics into the judiciary has always formed a toxic brew. “If we have judges looking over their shoulders worrying about their next election it could impact their decisions,” she said, adding that she recently read a study of two states with elected judges. The study concluded that the closer a judge gets to election, the longer his or her sentences become. In California judges are appointed by the governor and appear on the next ballot. After that, if they are not challenged, they keep their seats on the bench and don’t appear on future ballots.

What was so unusual in the Persky recall was that it didn’t attack the judge’s overall judicial performance or perceived viewpoint, by either conservatives or liberals. It was instead narrowly based upon a single verdict. “It was unfortunate to see a good judge, a diligent judge, losing his job because there was a public perception that a decision he made was wrong,” Moorman said. “You should lose your job if you disobey an order, if you’re not coming to work, you have some level of misconduct, or you’re not following the constitution.” In other words, not for a single lawful decision.

The success of a judicial recall for a single verdict is a an entirely different kettle of fish from what happened, for instance, to California Supreme Court Justice Rose Bird, who served 10 years on the high court. Both the first woman justice in the state and the first woman chief justice, she was appointed by then-governor Jerry Brown. Bird was voted off the bench in 1986 with two of her colleagues ─ justices Raymond Gordon and Cruz Reynoso ─ following a conservative, well-funded law-and-order campaign to oust the trio by Governor George Deukmejian, a law-and-order conservative Republican. Bird refuted the widely held public belief that she was targeted for her opposition to capital punishment alone. In a moving C-Span interview a month before the November 1986 state election that removed the three justices, Bird called the targeted conservative wave and others like it “judicial lynchings calling for executions for political reasons,” adding that “Courage is not a hallmark of politicians today.” Like Moorman, Bird said that she feared the pressure on justices to campaign for their judicial seats could sway their opinions.

Moorman highlighted one major social phenomenon that has transformed how voters view law and justice then and now. “What’s different about Persky as opposed to Rose Bird is social media,” she said. “It had a big impact on what happened to Persky. A little bit of knowledge is a dangerous thing.” 

Moorman said that those who load their Facebook pages or Tweet their political opinions in today’s technological climate of the immediacy and brevity of social media should be responsible about it. A daunting task indeed while the President of the United States uses his high-profile international platform to become one of the worst offenders of reaction before thought.

There is a process in place to discipline judges. Complaints go to the independent California Commission on Judicial Performance, which was established in 1960 to investigate complaints of judicial misconduct and judicial incapacity and to discipline judges if complaints prove to be true. 

Recently retired Judge Ignazio Ruvolo, former Presiding Justice of the California First District Court of Appeal, was a commissioner on that judicial disciplinary state agency for five years. He said that there are 1,844 authorized judges in California today, and that last year 1,251 complaints were filed. “We closed over 90 percent and discipline was imposed in 39 cases,” he said, adding that in three cases judges retired before adjudication. “The number one source of complaints is demeanor and decorum,” Ruvolo said. 

An example would be the on-bench abuse of authority, like ordering somebody into custody without the legal basis to do so. Second most common is appearance of bias, like failing to reveal a conflict of interest. Then, in descending order, come failure to ensure rights, ex parte communications (both inside and outside court), and contempt of power; the last and most familiar to today’s titillating and sensation-seeking general public, despite its relative infrequency, is off-bench conduct, things like getting a DUI or using the prestige of office to help either themselves or others. Ruvolo said that, like Moorman, he’s concerned about the rising politicization of the courts. “The risk is judicial independence, which shouldn’t be limited by a point of view, he said. “You don’t want a judge to be influenced by either side.”

Moorman said that you never know which issues will catch fire with the voting public, like what happened in the Persky recall. “This particular case was fueled by frustration about how sexual assault crimes have been either investigated or treated on university and college campuses,” she said. “And it was going on at the same time very public examples of how executives in the movie industry, all kinds of politicians, and people in the tech world, were being exposed.” She said that the best course of action, rational discourse, takes time that some are unwilling to invest. In a lot of cases, she added, “…we don’t know what happened. Studios and others don’t tell the world when assaults happen. Then when one comes to light you suddenly have charges going back 20 years. I don’t think the media captures the bottom line of someone losing their job or position.”

Moorman said it’s important to remember that people outside the court don’t have complete information about any case before a judge. About the Persky recall she said, “The voters got to second guess a judge’s decision without knowing what he knew, without knowing the facts before him, the probation reports and other information.” 

“What needs to happen is to educate the citizenry about the courts,” Moorman said, adding that it’s up to the community to step up to that task. “Everyone knows there are three branches [of government] but the judicial is the least visible. We don’t go on TV. It’s not a branch that‘s good about defending itself and it never will be. We don’t have a PR wing and never will. We rule on the facts then apply the law to those facts.” She added that one obstacle to that general knowledge is rooted in the recession of 2008-2009, which she says was the catalyst and first step in making the courts less accessible for people. Branch courts were closed. The Willits court was closed several years ago, also because of a budget shortfall. “We don’t need more judges but we need more staff,” she said. “2008 and 2009 hurt everybody,” Moorman said that the courts also have to interpret new laws as they are enacted, these days generally toward a greater array of serious charges and longer sentences. “’Many crimes need to be punished, society expects that,” she said. “But California has paid a very severe price for having a very large, overcrowded prison population for decades. The U.S. Supreme Court said ‘You can’t do that anymore’ and forced the state to pass laws that changed a lot of sentencing and what that sentencing accomplishes in reality”

In a geographically large but lightly populated county like Mendocino, Moorman said that access to the courts is also especially difficult. She said that the court is working on serving more remote residents better by setting up kiosks for routine forms and assigning shorter trials to those who travel the furthest for jury duty, which she said is residents’ only personal obligation to the courts. “We try to make jury duty interesting. It’s not fun but people generally feel good about themselves when they participate. I try to explain how a decision is made. Jurors have to make unpopular decisions, too.”

“The public has to trust the judiciary,” she said. “It has to trust that judges are doing their jobs with integrity. I think the public really wants a judiciary that is not subject to political trends, even when they’re perceived to be good trends.” She said that judges have to be unafraid to make unpopular decisions. “I’m not afraid of losing my job,” she said. “I don’t think about it. I don’t think the public wants any judges to think about it.”

And finally, Moorman said, “Judges have to be courageous. You have to constantly think ‘I have to decide this case with this much information and I have to decide with intellectual honesty and purity of conscience.’ It takes courage to make an unpopular decision in the midst of an issue that has a lot of public attention.”

3 Responses to "Judicial Review"

  1. Jim Armstrong   July 4, 2018 at 4:43 pm

    The pre-trial and trial that Judge Persky’s recall was based on was a long and complicated one.
    He sat through hundreds of hours of testimony and arguments, many off the record.

    At the time I felt that not one of the people who criticized the sentence could have known a fraction of what Persky knew.

    I think justice was done in the trial and not in the recent recall election.

    Reply
  2. Jeff   July 27, 2018 at 4:23 am

    I for one am tired of the “judges are above judgement by us common folk.” Their job is to hold those guilty of a crime to the standards of punishment society sees as appropriate. No where does it say they are above accountability. Mr Persky stretched all logic to come to his decision, even admitting that he was giving a sentence less than what was expected – all because prison would effect the defendant and his family negatively…..

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  3. Joe Hansem   August 2, 2018 at 8:17 am

    Persky followed the recommendation contained in the sentencing report written by the probation officer, a woman. Yes, Persky did mention the effect of prison on the defendant, who was 19 and had no prior criminal record, but that was one of about a dozen factors contained in the felony sentencing template that he went over per the Rules of Court. Given that Turner has up to a 14 year prison sentence hanging over his head if he violates probation and must register for life as a sex offender, Persky’s sentence of him was well within the bounds of his discretion to impose.

    Reply

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