Santa Clara County Superior Court Judge Aaron Persky on June 27, 2011.
Jason Doiy / AP
The California judge who faces a recall campaign after giving a former Stanford swimmer a six-month jail sentence for sexual assault approved an extraordinarily lenient sentencing arrangement for another young male athlete convicted of domestic violence, according to court records.
In February 2015, 21-year-old Ikaika Gunderson beat and choked his ex-girlfriend. He quickly confessed to police and three months later pleaded no contest to a felony count of domestic violence.
Gunderson faced up to four years in state prison, but he got a break.
In most domestic violence cases, sentencing occurs within a month or two of the guilty plea, but Santa Clara County Superior Court Judge Aaron Persky agreed to delay sentencing for more than a year so that Gunderson could attend the University of Hawaii, where he had been accepted, and play football there.
The judge said he would reduce Gunderson’s charge to a misdemeanor if the athlete completed a 52-week domestic violence program and attended weekly AA meetings.
Typically, domestic violence defendants have to successfully complete probation before a felony charge is reduced. But instead of having to report to a probation officer, Gunderson was told he did not have to check in with the judge for seven months. Even then, Persky said Gunderson’s attorney could appear on his client’s behalf, meaning Gunderson did not have to return to California.
The unorthodox arrangement also skirted a federal statute that bars adult offenders from moving out of state without permission.
It was a generous show of good faith, but it did not work out.
By October, Gunderson had dropped out of college and was not attending AA meetings. He also had failed to take part in the required domestic violence program. Two months later, he was arrested on another domestic violence charge in Washington state.
Persky’s decisions have been under scrutiny since the victim in the Stanford rape case released a letter describing the devastating impact the attack had on her. Prosecutors had asked for six years in prison, but Persky gave Turner six months, which was in line with what the probation officer suggested. Turner is scheduled to be released on Sept. 2.
On Aug. 25, Persky asked to be reassigned from criminal to civil cases in hopes that the move would reduce the distractions the Turner sentencing brought to the court. The recall campaign against him will continue, said its leader, Michele Dauber, adding that Persky could transfer back to hearing criminal cases whenever he chooses.
“Judicial bias is just as serious regardless of whether a case is civil or criminal,” Dauber said in a statement. “Many issues affecting women are heard in civil court every day.”
Persky’s critics say the Gunderson case fits the judge’s pattern of leniency in cases involving privileged men charged with serious crimes. Persky’s supporters counter that the judge’s actions show his desire to offer young offenders a chance at rehabilitation rather than incarceration. They say it’s unfair to hold Persky under a microscope, especially since prosecutors have to sign off on plea agreements, too.
But lawyers, domestic violence advocates, and other experts who were briefed on the case, including one high-profile judge who has publicly opposed the recall campaign, told BuzzFeed News that Gunderson’s sentencing agreement was highly unusual.
“There are so many problems with how this case was handled that I'm not even sure where to start,” said retired Judge LaDoris Cordell, who, like Persky, served as a Santa Clara County superior court judge. She said it was troubling that Persky didn’t ensure Gunderson was properly supervised, and that Hawaiian authorities were not notified when the defendant moved there.
“The system is set up so that if someone has admitted a violent offense and is now a convicted felon, they should be closely monitored,” Cordell said. “You don’t just cross your fingers and hope everything is going to be fine. That’s not how the courts are supposed to work.”
The victim, Gunderson's ex-girlfriend, agreed, she told BuzzFeed News in a recent interview.
“It just wasn't handled right,” the woman said. “They made it easy for him.”
Ikaika Gunderson grew up in Camas, Washington, a suburb of Portland, Oregon. His dad coached high school football, and his mother, an IBM executive, graduated from Stanford just four years before Persky, although there’s no indication they knew each other.
Gunderson dreamed of playing college football but was told his career was over after he suffered concussions during high school, according to a 2011 newspaper article that said Gunderson battled headaches and mood swings. But in January 2012, Gunderson got the opportunity to play football for Foothill College, a community college in Los Altos Hills, California. According to an athlete profile page from that time, he was 6’2’’ and weighed 250 pounds.
“Looks like I'm gonna be taking my talents to Cali,” Gunderson wrote on Facebook. “Gonna be playin ball by the bay area. 2 years then dreams of going big time.”
According to the statement that the victim, then 20, gave police, she and Gunderson started dating in the fall of 2013 and broke up in December 2014. They reconnected in January 2015 and went out for dinner in downtown Sunnyvale. After a few drinks, they got into an argument, which escalated into violence as they sat in his car in a parking lot.
“Don't raise your voice at me, I'm a man,” Gunderson told the victim, according to her statement. Then, she said, he punched her in the face and split her lip. She told police Gunderson hit her repeatedly in the face, pushed her head through the open car door window, and closed his hands around her neck until she couldn't breathe. He then shoved her out of the vehicle.
“There are so many problems with how this case was handled that I'm not even sure where to start.”
The victim walked away, she later told police, but Gunderson drove up alongside her and persuaded her to get back in the car. When she did, they started arguing again, and Gunderson backhanded her in the face, calling her “bitch” and “whore.” They drove to his house. As she sat on his front steps waiting for a friend to pick her up, Gunderson ate a bag of chips and laughed at her, according to the report.
The victim’s friend drove her to a hospital, and a nurse notified police. The responding officer noted the victim’s visible injuries in his report: Her face and lips were swollen, there were cuts and bruises on her face and body, and her left eye had broken blood vessels.
“The victim believes Gunderson has a 'two sided personality,’ due to his concussions,” the officer wrote.
The police arrested Gunderson that night after he admitted beating and choking the woman. She had hurt him “with her words,” Gunderson said by way of explaining his behavior, according to the police report. “I pushed her out of my face.”
Three months later, Gunderson appeared before Persky and pleaded no contest to the domestic violence felony charge.
Persky went “out on a limb,” Deputy District Attorney Ted Kajani would later say in court, and set Gunderson’s sentencing for July 2016, more than a year later. Until then, Persky told Gunderson he could go to Hawaii to live with his maternal grandmother and attend college as planned. If all went well, according to the arrangement, the felony would be reduced to a misdemeanor.
Assistant DA Brian Welch told BuzzFeed News that even though the prosecutor signed off on the deal, it was “solely within the court’s discretion to determine the sentence” in this case.
It is not uncommon for judges to give defendants a chance to “earn” a lesser charge, but legal and domestic violence experts said it is unusual for a judge to defer sentencing for so long for such a violent crime, and with such minimal supervision.
The victim told BuzzFeed News she supported the judge’s initial decision to give Gunderson a chance but was disappointed to learn he was unsupervised during the seven months before his attorney checked in with the court.
“I think it should have been stricter,” she said. “They didn’t even check in on him or anything like that the whole time?”
By October, Gunderson had dropped out of school, which meant he was no longer on the football team. He had stopped going to AA meetings. Instead of completing a state-mandated course on domestic violence, he took part of one online. All were violations of the plea agreement.
Gunderson’s attorney acknowledged this when he appeared in front of Persky in December, on his client’s behalf, as planned. Persky then ordered Gunderson to come in person the following month.
At that hearing, Gunderson blamed his failure to keep up his end of the agreement on the fact that his grandmother had died the previous October. He also provided a psychiatrist’s note that recommended a leave of absence from class. His attorney called it a “speed bump,” and court transcripts show Persky was inclined to be understanding.
“They didn’t even check in on him or anything like that the whole time?”
“If he's completely back on track with the original program and probation and the People don't have an objection, we can revert back to that,” the judge said of Gunderson.
This time, the prosecutor successfully objected, and Persky set Gunderson’s sentencing for March 2016. He received three years' felony probation, four months in county jail, as recommended by probation — although he served less than two months — and was ordered to complete a certified DV program.
Washington state records show that Gunderson was arrested on another domestic violence charge in December 2015. According to the police report, he punched his father during a family argument. “The family expressed concern repeatedly requesting that there be no charges as Ikaika needs treatment,” the police report states. That case is still pending.
Gunderson’s parents told police that their son had lived with them in Washington since Nov. 1 — despite Gunderson’s agreement to be in college in Hawaii at that time.
BuzzFeed News asked several local public defenders, retired judges, domestic violence advocates and legal experts to comment on Persky’s decision-making in Gunderson’s case. All agreed that the 14-month deferred sentencing was unusual although not unprecedented. But opinions differed as to whether this was a good thing and whether Persky alone should be faulted for the plea deal’s failure.
“I think everybody played a role in the lack of success in this particular case,” including the district attorney, said Steve Clark, a former prosecutor who is now a defense attorney. “That doesn't mean I don't think we should give people chances, particularly young people,” Clark said. “I don't know if we would want to live in a society where no one got a break.“
Others, however, said it was improper for a judge to oversee an offender’s rehabilitation in the way Persky did. The lack of supervision, among other issues, was not only “bizarre” but a “miscarriage of justice,” said Nancy Lemon, a leading authority on domestic violence and a lecturer at University of California Berkeley’s law school.
Gunderson's attorney, Anthony Brass, said his client is under medical care resulting from injuries that likely stem from playing football.
“No judge wants to derail a young person starting their life, particularly if they are going to college, but the fact is that Gunderson faced challenges that made it very difficult to complete the promises he made,” Brass told BuzzFeed News. “That doesn’t excuse him, but it was a challenging situation for him. The amount of freedom and amount of time he got ended up being something that didn’t serve his purpose.”
If Gunderson had been on official probation, he would have had strict guidelines to follow. For instance, he would have known that taking an online domestic violence class was unacceptable. Nobody told Gunderson this: Court records show that he asked the judge in May 2015 if he could take an online course and got no response.
Persky's decision to allow Gunderson to move to Hawaii may have violated a federal statute as well. The Interstate Compact for Adult Offender Supervision bars offenders from moving out of state without making a request to that state first. Yet Hawaii was never made aware that Gunderson was there.
“The amount of freedom and amount of time he got ended up being something that didn’t serve his purpose.”
Judges need to “do better to send a message that violence against women is not tolerable,” said Michelle Rocca, a director with the Hawaii State Coalition Against Domestic Violence. They shouldn’t bend the rules to benefit abusers, she said, as Persky appeared to have done.
“Violent offenders who are not held accountable continue to put communities at risk, and with the added layer of not being assigned formal supervision by the courts, they are free to re-offend in any state they choose, including Hawaii,” she said.
Before Persky asked to quit criminal court, he also disqualified himself from making a decision in another sex crime ruling. His efforts might not be enough to take the heat off.
For Dauber, the leader of Persky’s recall campaign, Gunderson’s sentencing once again proves that Persky “does not take violence against women seriously.” Instead, she said, Persky “essentially sentenced Gunderson to a year-long Hawaiian vacation.”
Persky’s supporters see a different pattern — one of a judge who looks for alternatives to incarceration.
“We have so many judges that take a one-size-fits-all, assembly-line approach to being a judge, so I appreciate a judge who takes the time to individually consider cases,” said Sajid Khan, a public defender in Santa Clara County who is one of Persky's leading supporters.
But even some who oppose the recall campaign said it’s a judge’s ultimate responsibility to do the right thing in the courtroom — and that didn’t happen in Gunderson’s case.
“If I'm a judge, and I see that things aren't happening as they normally should, it’s on me,” said Judge Cordell. “I should say, 'No, this deal isn't going to happen.'” •