A California judge is set to make his first key decision in a sex crime case since receiving harsh criticism for the light sentence given to a Stanford University swimmer for sexually assaulting a woman who was passed out.
Santa Clara County Judge Aaron Persky said last year he would be "receptive" to Robert Chain's request to reduce his conviction for possessing child pornography from a felony to a misdemeanor, if the San Jose plumber stayed sober and out of trouble.
Persky previously sentenced Chain to four days in jail and ordered him to register as a sex offender.
Assistant District Attorney Terry Harman said prosecutors were disappointed with the length of the jail sentence but didn't object because "we were satisfied with the felony plea and sex registration in light of the defendant's remorse and admission of guilt."
Harman said prosecutors will urge Persky to keep the felony conviction when it's considered at a hearing on Aug. 25. Either way, Chain will remain a registered sex offender.
Persky is the target of a recall campaign that started in June after he followed a recommendation by the county probation department and sentenced former Stanford swimmer Brock Turner, 20, to six months in jail for sexually assaulting an intoxicated woman who passed out behind a trash bin near a fraternity house hosting a party.
Turner could have faced up to 14 years behind bars.
The 23-year-old victim read an impassioned statement at the sentencing hearing. She described the assault in graphic detail and said her "independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition."
Persky has not commented on Turner's sentence and did return calls seeking comment on Chain's case.
A judge since 2003, Persky has a history of sparing first-time offenders such as Turner and Chain lengthy prison sentences when he's convinced counseling and court monitoring can help them get back on track.
Critics seeking to oust him from the bench are seizing on the sentence given to Chain as another example of the judge's leniency toward sex offenders, especially those with enough resources to hire private attorneys.
They say they examined 14 other Santa Clara County child porn possession cases similar to Chain's since 2012 and found the judges sentenced defendants to at least six months in jail.
"We believe that this is further evidence that Judge Persky exhibits bias in cases of sex crimes," said campaign chair Michele Dauber, a Stanford University law professor who is friends of Turner's victim. Persky "does not appear to understand or correctly weigh the harm caused by these serious crimes and treats them as if they are minor misdemeanors."
Chain was arrested in May 2014 after a San Jose sex crimes investigator remotely watched his computer download child porn images. About 30 images were found on Chain's electronic devices, including one involving an infant.
His privately retained attorney, Brian Madden, said reducing Chain's conviction to a misdemeanor will make it easier for the 48-year-old to find future employment, housing and financing because a felony conviction would appear during background checks.
Madden said Chain battled alcoholism and his life has changed markedly since the arrest. His wife left him with their two young daughters and he's stayed sober, dutifully attending Alcoholic Anonymous meetings and counseling sessions. He's taken responsibility for the crime and is remorseful, Chain said.
"He has worked hard," Madden said.