A judge is set to make his first key decision in a sex-crime case since receiving criticism for the light sentence given to a Stanford University swimmer who sexually assaulted a woman while she was passed out.
Santa Clara County Superior Court Judge Aaron Persky said last year that 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.
Asst. Dist. Atty. Terry Harman said the sentence was unusual because similar defendants convicted of child porn possession usually are sentenced to six months in jail.
Harman said prosecutors didn't object to Chain's short jail sentence 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.
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 the "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 that 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 that 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.
Chain's privately retained attorney, Brian Madden, said reducing the 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, but he's stayed sober and is attending Alcoholic Anonymous meetings and counseling sessions. He has taken responsibility for the crime and is remorseful, Madden said.
"He has worked hard," Madden said.