Santa Clara Superior Court Judge Aaron Persky. (Jason Doiy / The Recorder)
SAN FRANCISCO — The judge at the center of a nationwide controversy over the sentencing of former Stanford swimmer Brock Turner has been booted from a separate sexual assault case at the request of state prosecutors.
On Tuesday, the Santa Clara District Attorney’s office filed a peremptory challenge against Santa Clara Superior Court Judge Aaron Persky. The move, also known as “papering” a judge, automatically disqualified Persky from presiding over a trial against a male nurse accused of sexually assaulting an anesthetized female patient.
In a statement, District Attorney Jeff Rosen explained that his office took the step not only because it was unhappy with the result of the Turner sentencing, but also because Persky the day before had dismissed an unrelated criminal case midtrial.
That case had nothing to do with sexual assault and involved misdemeanor allegations of possessing stolen mail. Persky on Monday granted a motion by the defense to dismiss the case before a jury could weigh in, just after the DA’s office had rested its case.
“We are disappointed and puzzled at Judge Persky’s unusual decision to unilaterally dismiss a case before the jury could deliberate,” Rosen said. “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.”
“This is a rare and carefully considered step for our office,” he added. “In the future, we 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.”
Papering a judge is not altogether uncommon, but is more often used by the defense bar. According to Stacey Capps, chief trial deputy at the DA’s office, this was not the first time the DA’s office had papered a judge this year. But she emphasized it is done “sparingly.”
What is more uncommon is that the DA’s office made a statement about it at all. Capps acknowledged that most often, the move—which can be done only once per side in each case—is pro forma and goes without explanation. But she said Rosen had decided to put out a statement in response to media queries, and given the increased focus on Persky because of the Brock Turner case.
Turner, a former Stanford University student, was convicted in March of sexually assaulting a 23-year-old woman who was unconscious after binge drinking at a party. He was sentenced by Persky this month to six months in county jail, in line with the recommendation of a probation officer. The DA’s office had sought a six-year prison term.
Persky is now the focus of a recall effort led by a Stanford Law School professor and has been assailed on social media for handing down what critics say is an overly lenient sentence. Rosen has said that although prosecutors disagreed with Turner’s sentence, the DA does not think Persky should be removed from office.
Although both sexual assault cases are similar in that the women were said to be in vulnerable states, the charges facing the male nurse, Cecil Webb, are different. Webb is charged with felony sexual battery of a hospitalized person. Turner was convicted of sexual assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person.
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Correction: An earlier version of this article mistated the condition of the patient who prosecutors say was sexually assaulted; She was under anesthesia but partially conscious.