M. Marc Kelly recall, Orange County Superior Court, California (2015)
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An effort to recall M. Marc Kelly from his position as judge on the Orange County Superior Court in California was launched on May 1, 2015.[1]
The recall attempt was spurred by Kelly's December 2014 ruling in the case of Kevin Jonas Rojano-Nieto, who was convicted of sexually assaulting a three-year old. Kelly reduced the minimum sentence of 20-year-old Rojano-Nieto from 25 years-to-life in prison, giving him a penalty of 10 years of incarceration instead. District Attorney Tony Rackauckas appealed the reduced sentence.[2]
The Orange County registrar of voters estimated the cost of administering a recall election for M. Marc Kelly at $2.3 million.[1]
Upon the deadline of December 31, it was determined that the recall supporters failed to collect the minimum of 90,829 valid signatures needed to get the recall on the ballot.[3]
Background
In December 2014, Judge Kelly ruled that the minimum sentence of 25 years-to-life behind bars was cruel and unusual punishment for 20-year-old Kevin Jonas Rojano-Nieto, who was convicted of sodomizing a three-year-old girl. Citing the defendants own history of dysfunctional and abusive family life, Kelly's nine-page decision said the minimum penalty mandated by law was “grossly disproportionate to the defendant’s individual culpability." He also referred to the assault's spontaneous nature, short duration and lack of premeditation and the defendant's extreme remorse before reducing Rojano-Nieto's sentence to 10 years in prison.[2][4][5]
This ruling, which was appealed by the district attorney, sparked outrage among county residents and community members. The county board of supervisors demanded that Kelly resign. When he did not, this recall effort was launched against him.[1][4]
There has not been a successful judicial recall in California's superior court system for at least two decades prior to 2015.[4]
Appeal of reduced sentence
District Attorney Tony Rackauckas appealed the reduced sentence given by M. Marc Kelly to the Ninth Circuit Appellate Court. Rackauckas called the 10 years of incarceration prescribed by Judge Kelly “woefully inadequate.” The DA said, “There are facts in this case where clearly the crime fits the 25-years-to-life sentence. We have a very vulnerable and innocent victim. The crime is very aggravated in this case.”[6][7]
Criteria for cruel and unusual punishment
Judge Kelly's reduced sentence revolved around the concept of unconstitutional cruel and unusual punishment. In his sentencing statement, Judge Kelly wrote, "There is legal precedent that enables a Sentencing Court to engage in a thorough legal analysis to determine whether Cruel and Unusual Punishment might be applicable. I have engaged in such an analysis in this case."[5]
Kelly went on to explain that, according to a legal precedent called the Lynch-Dillon Analysis, there were three prongs of analysis that must be applied to a punishment to determine if it is cruel and unusual, any one of which could be enough to require reduced sentencing. The three-pronged test concerns:
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1) [t]he nature of the offense and the offender, with particular regard to the degree of danger present to society; |
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| —Judge M. Marc Kelly[5] | ||
First test
When discussing the first prong of the test, Kelly remarked that, in the abstract, the crime was truly horrendous and deserving of a very harsh penalty. He went on, however, to say that Rojano-Nieto did not stalk the victim or show any of the typical signs of a predator. He also noted that Rojano-Nieto stopped the crime seconds after it was begun and showed great remorse. Kelly insisted that the crime in question did "not compare to a situation where a pedophilic child predator preys on an innocent child." Further, Kelly looked to Rojano-Nieto's own history of dysfunctional and abusive family life and said this history had left Rojano-Nieto an "insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem." Kelly pointed to testimony from psychologist Dr. Roberto Flores de Apodaca, who reported that the "criminal actions were more compensatory rather than predatory," and concluded that testing of such cases showed an extremely low chance of repeated crimes.[5]
Second test
The second test applied to this case was a comparison to penalties imposed for more serious crimes. About this second prong of the analysis used to determine if a sentence amounts to cruel and unusual punishment, Kelly wrote:
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The 25-life sentence is as severe as if the Def. had been convicted of 1st degree premeditated murder. The sentence is as severe as if Def. had Committed an Assault on a Child Under 8 which resulted in Death (PC 273ab(a). The sentence is harsher than that of 2nd degree murder (15-Life); Attempted Premeditated Murder (Life with Parole Elig. After 7 years); Attempted Murder (5-7-9); Forcible Rape (3-6-8); and Manslaughter (3-6-11); The Court certainly recognizes that Sodomy of a Child Under 10 certainly warrants a harsh punishment of 25-Life when viewed in the Abstract. However, when the Court analyzes the nature of the offense in this case, and the nature of Mr. Rojano, it is clear to this Court that this case is an exception to the abstract.[8] |
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| —Judge M. Marc Kelly[5] | ||
Third test
The third prong of the Lynch-Dillon test did not, according to Kelly, reveal many further arguments for ruling the 25 years-to-life sentence as cruel and unusual. Kelly stressed, however, that the Lynch-Dillon test does not require all three prongs to come back positive in order to find a punishment cruel and unusual.[5]
Recall supporters
Recall supporter arguments
"Recall Judge Marc Kelly" video |
A group called Remove Judge M. Marc Kelly from the Bench helped to spearhead the recall effort.[1]
The initial recall petition filing accused Kelly of “unacceptable and unilateral reductions of criminal sentences or punishments of criminals convicted of heinous sex crimes committed against a minor or child.”[1]
Bryan Scott, an organizer for the group supporting Kelly's recall, said, "I hope we’ve reminded (judges) that they’re accountable. They’re there to serve justice and do it fairly.”[1]
County supervisors Todd Spitzer, Lisa Bartlett and Shawn Nelson urged Kelly to resign and supported the recall effort when he did not step down.[4]
Recall opponents
Response from Judge M. Mark Kelly
Kelly said he made his decision and would stand by it. In his ruling, he argued that the convict, Rojano-Nieto, did not have enough "individual culpability" to warrant a life sentence or even a 25-year sentence. He also focused on the large cost of a recall election and argued that this recall could set a dangerous precedent for judicial independence. He said that a judge's decisions should not be motivated by efforts to "appease politicians," but should be informed only by his or her oath to "uphold the Constitution."[1][9]
Kelly's full response, which was officially filed with the Orange County registrar of voters to be placed on the petition form and the ballot, is below:
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Don't sign this Petition. Don't waste $2.3 million of taxpayer money. This Petition is Misleading. I've been a respected judge for 15 years. 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 send hundreds of violent criminals to prison. Over 115 Superior Court Judges support me. This Petition could cost taxpayers $2.3 million (Source: Orange County Registrar of Voters) This Petition is an Attack on Judicial Independence. 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. Don't let politicians intimidate judges. Keep politics out of our courtrooms. 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. (quote) |
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| —Judge M. Marc Kelly[9] | ||
Other recall opponents
Geoffrey Robinson, an ex-prosecutor in the office of the district attorney warned that a successful recall petition would result in a costly election. Robinson said, “To go and cost the county $2.4 million for a special election would be misuse of public funds." Referring to the district attorney's announced plans to appeal the controversial prison sentence ruling, he concluded, "You have to trust the system.”[2]
Robinson also defended Kelly, saying, “(Kelly has) given well over 20 years of his life for public service." He also called for moderation in reactions to the sentence in question, saying, “Ten years in prison is not a walk in the park.”[2]
Editorials
- The editorial board of the Los Angeles Times criticized the recall effort against M. Marc Kelly as an unjust and politically motivated action against a long-time judge, an attack on judicial independence and an unnecessary waste of resources. The editorial board stressed that people need to trust the system and argued that, if Kelly's controversial decision was wrong, the responsibility to overturn it belonged with the appellate court and the district attorney. The article also argued that this was the first case of widespread disapproval of one of Kelly's decisions in over 15 years. An excerpt of the editorial is below:[10]
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The essence of the American justice system is that rulings are made by judges who are shielded from the heat of public emotion and pressure of politics. [...] This state has judicial elections, and any elected official can be recalled. For example, now-retired Orange County Superior Court Judge Nancy Wieben Stock had to weather a recall because some critics didn't like her custody decision in the case of O.J. Simpson's children. But she followed the law, and fortunately the campaign against her fizzled. A similar result in Kelly's case would best serve California.[8] |
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| —Los Angeles Times editorial board[10] | ||
Path to the ballot
- See also: Laws governing recall in California
On May 1, 2015, Judge Kelly was served with an intention to circulate a recall petition. After filing with the Orange County Registrar of Voters and working with the county to draft a recall petition form for circulation, recall petitioners needed to collect 90,829 valid signatures. The county registrar of voters approved the petition form for the recall on August 4, 2015. This gave petitioners a deadline on December 31, 2015, to submit signatures. A successful recall would have resulted in a recall election in June 2016.[1][4][11]
As reported by the Orange County Register on December 31, recall supporters were unable to collect the necessary amount of signatures to get the recall on the ballot.[3]
See also
- Recall campaigns in California
- Special district recalls
- Political recall efforts, 2015
- Superior Court of Orange County, California
- Orange County, California (Judicial)
External links
Basic information
Recall support
Recall opposition
Additional reading
- Los Angeles Times, "O.C. judge under threat of recall for child molester sentence fires back," May 13, 2015
- Los Angeles Times, "Official attempt underway to recall O.C. Superior Court judge," May 4, 2015
- Orange County Register, "Whiting: Judge Kelly, spare us a recall and step down," April 19, 2015
- The Orange County Register, "D.A. Tony Rackauckas appeals controversial ruling by Judge M. Marc Kelly in child sexual assault case," April 17, 2015
Recent news
This section links to a Google news search for the term "M. + Marc + Kelly + recall"
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Orange County Register, "Victims' advocates serve petition to start process to recall O.C. Judge M. Marc Kelly," May 1, 2015
- ↑ 2.0 2.1 2.2 2.3 Orange County Register, "O.C. judge's reduced sentence in child sex assault case sparks a public outcry, calls for him to step down," April 8, 2015
- ↑ 3.0 3.1 Orange County Register, "Recall effort fails against O.C. judge who reduced sentence for man convicted of molesting a child," December 31, 2015
- ↑ 4.0 4.1 4.2 4.3 4.4 Orange County Register, "Pressure mounts on O.C. judge over sentence; county supervisors say they're planning a recall," April 10, 2015
- ↑ 5.0 5.1 5.2 5.3 5.4 5.5 Orange County Superior Court, "Rojano Sentencing Analysis," accessed June 8, 2015
- ↑ Orange County Register, "D.A. Tony Rackauckas appeals controversial ruling by Judge M. Marc Kelly in child sexual assault case," April 17, 2015
- ↑ Rancho Santa Margarita Patch, "DA Appeals Shortened Sentence for Toddler Rapist as Attorneys Rally Around Judge Behind Controversial Ruling," April 16, 2015
- ↑ 8.0 8.1 8.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 9.0 9.1 Los Angeles Times, "Judge Mark Kelly's Answer to Recall Proponents," accessed May 18, 2015
- ↑ 10.0 10.1 Los Angeles Times, "Editorial Orange County Judge M. Marc Kelly: Recall effort is an injustice," May 19, 2015
- ↑ Orange County Register, "Petition moves forward to recall O.C. Judge M. Marc Kelly over child sexual assault ruling," August 4, 2015
