Michael Aaron Persky was born in 1962. His father, Michael Persky, was a psychiatrist of Jewish descent. His mother, Susan Elder, was a French teacher. His paternal grandparents owned a poultry business. He grew up in San Francisco, California.
Persky graduated Phi Beta Kappa from Stanford University in 1984 with a bachelor's degree in international relations. He was the captain of the Stanford men's lacrosse team, a club sport. He received a master's degree in international policy studies from Stanford in 1985.
He graduated from the UC Berkeley School of Law (Boalt Hall) in 1990 and was admitted to the bar in California in the same year. After college, he played for the Berkeley club lacrosse team, for which he was also a captain.
Persky worked for the law firm of Morrison & Foerster, practicing corporate civil litigation. While in private practice, he received the California Association of Human Relations Organizations' Civil Rights Leadership Award for work on hate crimes, and the State Bar of California's Wiley Manuel Pro Bono Award for his pro bono work for the poor.
In 1997, Persky joined the Santa Clara District Attorney's Office. In this position, he prosecuted criminal offenses which included violent sex crimes and hate crimes. He served on the executive committee of the Support Network for Battered Women and the Santa Clara County Network for a Hate-Free Community.
By 2003, Persky was a deputy district attorney in the Santa Clara District Attorney's Office and prosecuted juvenile offenders; he was also a member of the DA's Juvenile Wards Team.
In 2002, Persky unsuccessfully ran for a seat on the Superior Court of California in Santa Clara County, losing to Ron Del Pozzo, who was also a deputy DA. Persky received 102,801 votes (47.9%), to Del Pozzo's 111,679 votes (52.1%) for Seat 16 on the court. In his 2002 run, Persky was endorsed by the Santa Clara County Bar Association (and its Women Lawyers Committee) and by the San Jose Mercury News, while Del Pozzo received the endorsement of Sheriff Laurie Smith, U.S. Representatives Zoe Lofgren and Mike Honda, and the AFL-CIO. Both candidates ran a positive race.
Persky received an appointment to the court from California Governor Gray Davis the following year.
He is the former Chair of the Court’s Community Outreach Committee.
In June 2016, Persky was elected without opposition for another six-year term on the bench. The vast majority of Santa Clara County judges—25 in total— ran unopposed in 2016.
In August 2016, Persky requested to be transferred from criminal to civil court, citing unwanted scrutiny and attention stemming from his ruling in the Turner case.
In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza college baseball team, who were accused by the underage plaintiff of gang-raping her while she was unconscious until passersby intervened. The district attorney had decided not to file criminal charges over the 2007 incident. During the civil trial, Persky decided that the jury should be allowed to view seven photos of the plaintiff taken at a party she attended approximately a year after the alleged gang rape, as per the defense's claim that this evidence contradicted the plaintiff's claims. The plaintiff's attorney, who argued the photos were irrelevant, described this decision as prejudicial against her client. The jury found the defendants not liable.
In 2016, Persky received international media attention and widespread criticism for sentencing Brock Allen Turner, a 20-year-old Stanford student convicted of three felony counts of sexual assault, to six months in jail and three years of probation. The statutory maximum sentence was fourteen years; prosecutors sought a six-year term, while the Santa Clara County Probation Department, in its presentence investigation report, recommended a six-month term in county jail, and the defense asked for a four-month term in county jail. During sentencing, Persky said he considered the factors noted by the Probation Office and the "severe impact" of imprisonment on the defendant's life.
Legal experts viewed the sentence in the case as unusually light. Subsequently, District Attorney Rosen filed a peremptory challenge to Persky presiding over the criminal trial of a surgical nurse charged with sexual battery. One juror in the Turner case wrote to Persky that his sentence was “ridiculously lenient” and made a “mockery” of the entire trial. Danny Cevallos, a Pennsylvania based criminal defense lawyer and CNN legal analyst, said that while the sentence was lenient, Turner's prior clean record made him a candidate for minimum sentencing. (Following the controversy, the Associated Press analyzed 20 cases where Persky had passed sentence since January 2015 and found that Persky had followed the sentencing recommendation of the probation department every time).
Although he did not face any opposition in an election held five days after the sentencing, Persky now faces a campaign to recall him. Online petitions calling for Persky to be removed attracted over a million signatures by June 10, 2016. Professor Michelle Dauber, a sociologist at the Stanford Law School and longtime advocate on campus sexual assault, who is also a family friend of the victim, is leading the Committee to Recall Judge Persky. The Committee plans to collect signatures in Santa Clara County to force a November 2017 recall vote. The demands received support from Representative Ted Poe (R-Texas), who took to the floor of the United States House of Representatives to condemn Turner's sentence as too lenient and to call for Persky's removal.
Persky had also been a student and lacrosse team captain at Stanford University.
The move to recall Persky was opposed by the Santa Clara County public defender, who said she is "alarmed by the hysteria" about the Turner sentence. A group of 70 public defenders has petitioned in support of Persky, warning against "mass incarceration" brought upon by state legislatures or indiscreet judges, and fearing that the backlash against Persky could hurt their clients (mostly poor African and Latino) by compelling judges to give out harsh sentences. Deputy Public Defender Sajid Khan wrote "rather than using robotic, one size fits all punishment schemes, we want judges, like Judge Persky, to engage in thoughtful, case by case, individualized determinations of the appropriate sentence for a particular crime and particular offender". Santa Clara County district attorney Jeff Rosen, whose office prosecuted Turner and will not appeal the sentence, stated, "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" and said "Judicial independence is a critical part of the U.S. justice system. The immense power that comes with judicial independence also comes with accountability to the people we serve." Danny Cevallos stated that judges enjoy a modicum of independence from public pressure, and "there are no apparent grounds for impeachment or allegations of judicial misconduct, based on this sentence alone." Cevallos said that the recall movement "raises the question: is removing judges good for the spirit of the judiciary system, especially when the judge's sole transgression is a legal sentence" where he correctly applied the law. The Santa Clara County Bar Association has released a statement saying that removing Persky would be a "threat to judicial independence" and weighs just one of his 13 years of decisions too heavily, saying they see "no credible assertions that in issuing the sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith." Similarly, other sitting judges (both state and federal) and legal commentators have defended Persky's decision, noted that the sentence might, in their opinion, be disproportionate due to the life-long consequences of a criminal conviction and sex offender registration, and called on the bar to protect the independence of the judiciary.
In June 2016, at least ten prospective jurors refused to serve in a misdemeanor trial for possession of stolen property where Persky was presiding, citing the judge's sentencing of Turner as a reason. The following week, Rosen filed a peremptory motion for recusal in a case where Persky was to preside over the criminal trial of a surgical nurse charged with sexual battery for allegedly touching the genitals of a patient under sedation. Rosen called his move to have the judge removed from the case, "a rare and carefully considered step for our office."
As a result of the backlash in the wake of his sentencing, Persky has asked not to hear any more criminal cases, and has been re-assigned to the Civil Division of the California Court system.
In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza College baseball team, who were accused by the minor plaintiff, "Jane Doe", of gang-raping her while she was unconscious until a passersby intervened. During the trial, Persky decided that the jury should be allowed to view photographs of the plaintiff taken at a party she attended approximately a year after the alleged gang rape, as per the defense's claim that this evidence contradicted the plaintiff's claims of suffering from post-traumatic stress disorder. The jury found the defendants not liable.
Following Turner's sentencing in 2016, the plaintiff's attorneys in the De Anza case criticized Persky for allowing the photos into evidence. Attorneys for Doe said the photographs were not the only evidence that Persky unfairly permitted. Four of the baseball players had invoked Fifth Amendment rights not to self-incriminate during the discovery phase of the litigation. According to a lawyer for Doe, that was a critical juncture: it prevented their team from obtaining evidence that could have helped them pursue their case. The original judge in the case ruled in 2010 that the defendants could refuse to testify, but that would also mean that they would be prohibited from subsequently testifying in the case. That ruling was, however, overturned by Persky after he took over the trial in 2011, a move that Doe's attorneys say undermined her case.
An organization named "Recall Judge Persky" was established seeking to collect the 80,000 signatures of county voters required to hold a special recall election. The organizer of the petition is Stanford law professor Michele Dauber. As of November 2, 2016, over 1.3 million people had signed a change.org petition to remove Persky from the bench. Other petitions related to the case at moveon.org and We the People gained over 100,000 signatures each.
The move to recall Persky was opposed by the Santa Clara County public defender, who said she is "alarmed by the hysteria" about the Turner sentence. Santa Clara County district attorney Jeff Rosen, whose office prosecuted Turner and will not appeal the sentence, stated "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." At the same time, Rosen's office asked to have Persky removed as the judge in an upcoming sexual assault trial, saying that he had lost confidence that the judge could “fairly participate” in the case. Persky has formed a committee to fight the recall effort, called "Retain Judge Persky -- No Recall".
On December 19, 2016, the California Commission on Judicial Performance cleared Persky of any wrongdoing in the Turner sentence.