County Supervisors Rebuke Judge for Going Easy on Toddler Rapist

Orange County supervisors today approved a resolution rebuking Superior Court Judge M. Marc Kelly and calling on him to resign.

The board was poised last week to approve a more strongly worded resolution in response to Kelly’s recent ruling deviating from a state-mandated 25-years-to-life sentence to send a man who sexually assaulted a 3-year-old girl to prison for 10 years, but they backed off of that in the face of protests from an organization representing local defense attorneys.

The board took particular issue with Kelly reasoning that Kevin Jonas Nieto-Rojano, 20, did not violently attack the girl as he tried to differentiate the case from one of a stranger stalking and pouncing on a victim. In Nieto-Rojan’s case he was related to the victim.

The supervisors said they “wholly repudiate the suggestion, in Judge Kelly’s ruling, that the defendant’s conduct was not violent or in callous disregard for the well-being of the victim.”

They went on to say in the resolution that they “rebuke and denunciate Judge M. Marc Kelly’s decision to impose a sentence” that “illegally fails to comply with the mandate of (state law)... and could, in the very near future, expose the children of Orange County to the defendant’s sexual, pedophilic appetite.”

The board also declared that it has “no confidence in Judge Kelly or his willingness to faithfully and fairly administer the laws of the State of California in the public’s interest” and the supervisors demanded “the immediate resignation” of him.

The board also voted to support Orange County District Attorney Tony Rackauckas’ appeal of Kelly’s ruling.

Paul Meyer of the Orange County Criminal Defense Bar Association’s Founding Board implored the board to hold off until the appellate court rules on the sentencing. Rackauckas filed a notice of appeal last week.

“I told them, ‘You’re proposing a resolution to denunciate a judge for a decision he made in a legal case that is now on appeal. What will you do if the Court of Appeal agrees with Judge Kelly?’ “ Meyer told City News Service.

“Does your board want to be in a position to call for the resignation of Court of Appeal justices? It seems to me that this is an appropriate case to allow the appellate process to proceed.

“The appellate court will review the entire record and facts and render a decision, and that is an appropriate forum, not a Board of Supervisors that has read only, perhaps, part of the record and has no power over the judiciary.”

Meyer noted that Kelly fashioned his sentence based on the victim’s family members pleading for leniency.

Orange County Supervisor Shawn Nelson said the defense attorneys have taken up Kelly’s cause because they want more judges to deviate from state- mandated life sentences more often.

Nelson said the county is not a party to the litigation or appeal so it’s not inappropriate to take a stand on the issue. Nelson said he was offended that Kelly tried to argue the attack was not violent.

“Judge Kelly made a human statement not a legal statement that he doesn’t believe it was a violent act to sodomize a 3-year-old, and I’m telling you I have a problem with that,” Nelson said.

“It’s totally irrational, illogical and it is in my mind a pathetic attempt for someone to try to mitigate raping a baby for the purposes of lowering a guy’s sentence when the law clearly says you’re not supposed to be looking for mitigation.”

Nelson also faulted Kelly for not noting in his ruling that the defendant put his mouth over the girl’s mouth when he feared he might get caught in the act.

“Holding his hand over her mouth is a violent act,” Nelson said.

Nelson said he is not “leading” efforts to recall the judge, but he does support it if Kelly refuses to resign.

Board of Supervisors Chairman Todd Spitzer said the defense attorneys are wrong to say it’s just a legal issue.

“It’s not a legal issue. It’s how offensive and out of touch and irresponsible Judge Kelly’s opinion was,” Spitzer said. “It’s how he characterized the act of violence against a 3-year-old.

“He said the arousal was inexplicable. He said it was nonviolent and distinguishable from other sexual predators and basically it was an unconscious act. I’m focused on the wording of the opinion and whether Judge Kelly should continue to sit on the bench.”

Kelly ruled it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Rojano-Nieto to a life sentence.

Kelly noted it was the same punishment for first-degree murder and longer than the terms behind bars those convicted of manslaughter or second- degree murder receive.

Kelly also cited reports from psychological experts that downplayed the possibility the defendant would sexually assault anyone else when released from prison. He also relied on appeals from family members who requested a lesser sentence.

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City News Service

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