Embattled Judge Responds to Uproar over Reduced Sentence for Toddler Rapist

Now that Orange County Superior Court Judge M. Marc Kelly has responded to his critics for reducing a state-mandated life term for a man who sexually assaulted a toddler, organizers of an effort to remove him from the bench can collect signatures, the leader of that movement said today.

The effort to recall Kelly will require professionals to gather signatures and could cost between $1.50 to $5 per signature, so organizers need donations, said Bryan Scott, founder of the Recall Judge M. Marc Kelly campaign.

The organizers need at least 90,829 signatures on the petition, but they are aiming for 150,000 to cover expected challenges by Kelly, Scott said. The signatures must be gathered within 160 days, but organizers are aiming to do it in 150 days, he said.

A recall election would cost taxpayers between $1.9 million and $2.4 million, according to Orange County Registrar of Voters Neal Kelley.

Kelly has not been able to respond to his critics for ethical reasons. But his response filed with the Registrar of Voters on Tuesday were his first words on the efforts to oust him, in which he urged voters not to “waste $2.3 million of taxpayer money” and called the petition “misleading.”

“I’ve been a respected judge for 15 years,” Kelly wrote. “In the vast majority of sexual assault trials, I’ve sentenced defendants to life or the maximum. I have a reputation for being tough on crime. The DA’s Office has prosecuted serious cases in my courtroom for years. I was a tenacious gang murder prosecutor, receiving the Victim Witness Outstanding Prosecutor award for gang murder crimes. I’ve sent hundreds of violent criminals to prison. Over 115 Superior Court judges support me.”

Kelly also said the effort to oust him was an “attack on judicial independence.”

Kelly wrote, “I took an oath to uphold the Constitution, not to appease politicians. A judge who doesn’t follow the Constitution today won’t follow it tomorrow when your rights are at stake.”

Kelly also advised voters to not let “politicians intimidate judges” and to “keep politics out of our courtrooms.”

He added, “My integrity is unassailable. I was elected by voters as judge; rated exceptionally well qualified. I graduated from Notre Dame and the University of San Diego Law School. I’ve been married 29 years. We’ve raised two sons in Orange County. We are devoted members of our church.”

Scott blasted Kelly’s response to the petition, calling it a recitation of the judge’s resume.

“It’s his ego and arrogance showing through rather than taking responsibility for his decision, which is not sitting well with the people he was elected to serve,” Scott said.

Scott said it’s Kelly’s fault that taxpayers will spend about $2 million on a recall election because he won’t resign.

“He’s choosing to cost us $2.4 million,” Scott said.

Kelly doesn’t understand that it’s not his ruling in the case against Kevin Jonas Rojano-Nieto that has upset his critics, but rather the words he chose to defend his decision, Scott said.

On April 3, Kelly deviated from the mandated 25 years to life sentence and sent Rojano-Nieto to prison for 10 years. Scott said the judge’s critics are particularly incensed at the way he tried to explain that the 20-year-old’s attack on his 3-year-old relative was different than a stranger-danger situation.

“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.”

Scott said Kelly’s argument that the attack was not violent or callous “reversed 30 or 40 years of judicial evolution. We’ve gone from rape was a bad night of sex 40 or 50 years ago to it is a crime of inherent violence. And he dismisses the violent aspect of this rape specifically by saying he (Rojano- Nieto) had no violent intent or callous disregard for her safety. It’s ridiculous and it’s one of the reasons we’re so hell-bent on this.”

The attack on the girl was worse than a stranger assault, Scott argued.

“This man not only violated her body, but he violated her sense of trust and love,” he said.

Scott said he doesn’t buy the judge’s argument that the defendant was “inexplicably aroused” by the girl.

“What? Was she wearing hot-pants diapers? It boggles the mind,” Scott said. “There are a lot of victims out there who feel it’s victim blaming -- that somehow if she hadn’t walked into his space she wouldn’t have been raped.”

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City News Service

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