JUDGMENT OF THE BENCH
Amid calls for Judge M. Marc Kelly to resign after a rare lenient ruling, his right to make the decision is defended
As thousands called for his resignation and politicians lined up to condemn him, Orange County Superior Court Judge M. Marc Kelly kept his mouth shut.
He’d been lambasted from every angle after sentencing a 20-year-old child molester to prison for 10 years, rather than the legal minimum of 25 years. In handing down the sentence, Kelly said the man — found guilty of molesting a 3year-old girl — seemed remorseful and didn’t fit the profile of a sexual predator.
Holding up a copy of Kelly’s ruling this week, as county supervisors unanimously called for the judge to resign, board Chairman Todd Spitzer pointed to it angrily.
“If these words don’t make you cringe or shudder, or raise the hair on the back of your neck, you are not a human being,” he said.
The flogging of a sitting judge, though, is stirring pushback from attorneys, residents and others who have come to Kelly’s defense — not necessarily to support his decision, but to protect his right to make it.
A sort-of “all-American boy with conservative Orange County values,” Kelly must have faced a case “with extraordinary facts that pulled at his conscience” to rule as he did, said attorney Jeoffrey Robinson, who met Kelly when both worked for the Orange County district attorney’s office.
“Judge Kelly was a young, hardcharging, ex-athlete who approached the courtroom
the way he went after a loose ball on the hardwood floors of Notre Dame,” Robinson said.
A 1982 graduate of Notre Dame, where he played basketball, Kelly attended the University of San Diego School of Law after briefly playing professionally overseas, according to a Notre Dame alumni club biography.
Kelly joined the State Bar of California in 1987 and went to work for the district attorney’s office the following year, placing a photo of his basketball days in his office.
In the image, he is faced off against a player who stood more than 7 feet tall, striving for a rebound that Kelly — at least a foot shorter — was unlikely to get.
The sportsman proved as competitive and tenacious as a prosecutor. He worked hard to excel, without letting his drive blind him to problems that might undermine a case, said Brent Romney, who supervised him at the district attorney’s office.
But a bleeding heart he wasn’t, Robinson said.
As a young prosecutor, Kelly went after a personality known as the “Rainbow Man” — famed for wearing a rainbow-hued wig and holding religious placards at televised sports events — for setting off stink bombs, even though he already had a life sentence for taking hostages. The public, Kelly said, “deserved to have him put away for as long as possible.”
In 1995, Kelly showed little sympathy for a cop suspected of having sex in a truck near an adult theater and then leading law enforcement on a high-speed car chase. Kelly said the man should be barred from policing.
Kelly took on a group of suburban teenagers — the so-called Slick 50s, known for an affinity to that era — toward the end of his career in the district attorney’s office. Kelly aimed to prove the south Orange County teens, several of whom were accused of trying to kill a 16year-old outside a party, constituted a gang. The jury agreed, though the gang terrorism charges were later set aside.
With white hair and a youthful smile, Kelly built a reputation as a fair, personable and polite jurist in the years after his 2000 appointment to the bench. His courtroom chair displayed a Notre Dame insignia, and every year he hosted an appreciation luncheon for jurors.
Kelly’s sentences could be stiff. For some past sex crimes he handed down tough prison terms, including 50 years to life in the rape of a child.
Still, criminal defense attorney Scott Well said his client in an ongoing gang-related case marveled at how Kelly took the time to learn about the defendant’s life.
“If this was just crime and punishment, we wouldn’t need judges,” Well said. “We would just use computers.”
As Kelly prepared to announce the controversial sentencing on April 3, he acknowledged the rarity of his decision.
The judge said Kevin Rojano-Nieto had become “inexplicably” aroused when he saw the child and was almost immediately overcome by remorse. Kelly said that to sentence Rojano-Nieto to 25 years would be “cruel and unusual” and, in his book, unconstitutional.
The district attorney appealed the case, an informal petition calling for Kelly’s resignation drew thousands of signatures and a Facebook page condemning the 10-year sentence filled with posts of anger.
“Could it be that this judge is also some type of pedophile himself?” one Facebook user wrote.
“This moron shouldn’t even be allowed near a PARK bench,” commented another.
This week, a group planned to launch its own mass media effort to recall Kelly, said Bryan Scott, who started the Facebook page.
“If you make one decision that is so egregious to the public sense of right versus wrong, that so offends the concept of public safety, then we have not only a right but a responsibility to stand up,” Scott said.
Kelly, who is barred by a state ethics code from discussing a case that is under appeal, has weathered the criticism in silence.
Erwin Chemerinsky, dean of the University of California Irvine School of Law and an expert in constitutional law, predicted it is unlikely an appellate court would uphold Kelly’s ruling.
But to see a judge pressured to resign for an unpopular decision is troubling, he said.
Kelly thoughtfully fulfilled his role to uphold the law as he saw fit, taking “an act of courage whether he was right or wrong in the decision that he made,” attorney Lee Stonum told supervisors.
Well-known defense attorney Paul Meyer, speaking to supervisors last week on behalf of the Orange County Criminal Defense Bar Assn., argued that a judge’s ruling should be a legal matter, not a political opportunity.
Kelly “reviewed the law, listened to everything and then made what was a tough call, a difficult call, but a very thoughtful, analyzed call,” Meyer said.
On Tuesday, Meyer asked supervisors to consider a scenario in which the court of appeal upheld Kelly’s decision. Would they feel compelled to demand the resignation of those on the court of appeal? Then the state Supreme Court?
“Agreed: Judge Kelly has a tremendous, strong history,” Meyer said. “But this case, you disagree with. You may be right. You may be wrong. But it’s not going to be up to this board to make a decision.”