Activists Put Judge on Notice that They Intend to Oust Him for Showing Mercy to Toddler Rapist

Activists pushing to oust Orange County Superior Court Judge M. Marc Kelly for reducing a state-mandated life sentence for a man who sexually assaulted a 3-year-old unsuccessfully tried to serve him legal papers in his courtroom today announcing their intent to seek a recall election.

The group also tried to hold a news conference in the Central Justice Center in Santa Ana, where Kelly’s courtroom is located, but they were told by officials they had failed to receive permission to hold their event in the building.

Insted, they held a news conference outside the courthouse.

When they went to the judge’s courtroom they were rebuffed by Kelly, who directed them to serve the legal papers on the recall with the general counsel of Orange County, according to Bryan Scott, who’s leading the charge to kick Kelly off the bench.

Meanwhile, Susan Kang Schroeder, chief of staff for Orange County District Attorney Tony Rackauckas, confirmed with City News Service that prosecutors offered to strike a plea bargain with Kevin Jonas Rojano-Nieto, but she would not go into the specifics of the deal.

It’s general policy, however, for the District Attorney’s Office not to comment specifically on any offered plea deals, Schroeder said.

Generally speaking, the District Attorney will take into consideration the wishes of the victim and their family members when offering a plea bargain. Prosecutors often make a plea deal to spare victims from having to testify, or if a victim’s family does not wish to participate in the prosecution, she added.

Rojano-Nieto’s family pleaded with Kelly for a more lenient sentence, which factored into the judge’s April 3 decision to deviate from the mandated 25 years to life sentence and instead give the defendant 10 years in prison.

Schroeder also pointed out that the victim’s rights legislation -- Marsy’s Law -- requires prosecutors to consider the wishes of victims.

Scott criticized Kelly for “refusing any responsibility for the process.”

“Essentially, taxpayers had to foot the bill for Judge Kelly to receive his notice of intent to recall him.”

The judge is prohibited by ethical rules to comment on his decision.

Attorney Paul Meyer, speaking on behalf of the Orange County Criminal Defense Bar Association, called Scott’s recall campaign an attack on all jurists.

“An independent judiciary is critical to our freedoms,” Meyer said in a statement. “This campaign is an attack on all judges. Judge Kelly was a tough prosecutor and is now a tough judge. He earned the respect of the lawyers and judges in this county. It is a shame to see special interests drive a recall campaign that has little to do with one case, and more to do with raw politics.”

Meyer pointed out that the recall election could cost taxpayers up to $2.4 million.

“Why not wait for an appellate decision -- what if the appeal shows that Kelly was right?” Meyer continued.

Meyer encouraged voters to reject entreaties to sign the recall election petition.

“Don’t throw away $2.4 million of taxpayer money. Let the judicial system work,” Meyer said.

Kelly’s critics have zeroed in on what he said to justify the lesser sentence to the 20-year-old defendant who sodomized a 3-year-old relative. The judge said it wasn’t the same as a stranger stalking a victim.

“He was playing video games and she wandered into the garage,” Kelly said. “He inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her... There was no violence or callous disregard for (the victim’s) well-being.”

The prosecutor on the case -- Whitney Bokosky -- pointed out that the judge neglected to mention the defendant put his hand over the girl’s mouth when her mother knocked the door where the attack took place. He also failed to mention how the defendant also made the girl masturbate him after the mother appeared to have moved on, she said.

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