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Judge M. Marc Kelly – Let the Voters Render Their Verdict!

Posted by Craig P. Alexander on April 12, 2015

In California State Court trial judges must stand for election every six years. Whenever judges appear on the ballot I have a vast number of friends ask me which judges to vote for and which judges to vote against. Even lawyers like myself don’t always know a judge’s record on the trial court bench since their decisions are not often printed in the newspaper or on legal search engines like Lexus or West Law.  Thus it makes it hard to evaluate if the judge’s record is good or not.

I am much more likely to give a judge my vote on re-election even if I don’t agree with all of their decisions.  Being a judge is not an easy task and they work very hard to be fair to all sides in the cases before them.  They also have to handle far more cases than each of them should have too due to severe budget constraints imposed by Sacramento and limits on the number of judicial appointments which often lag far, far behind the actual need.  Plus keep in mind that the reason a case is in front of the judge in the first place is at least two parties are in disagreement and the judge (and often a jury) is called upon to decide between them.  That often means someone is a winner and the other party is the loser.  This is the judge’s job: to preside over a conflicted situation that he or she did not create.  But it is their job to make the tough decisions each day.  For these reasons I admire judges for the often difficult work they do.

However there are exceptions to this general rule and the recent sentencing of a confessed child rapist by Judge M. Marc Kelly is one of those examples.  I do not know if Judge Kelly found the rapist guilty of his crime, if a jury did that or if the rapist confessed and plead guilty, but it is the judge who decides the sentence for the convicted criminal to serve.  It is the sentence, handed down by Judge Kelly, of this rapist of a three year old to only 10 years in prison rather than 25 years to life that shocks people in our community (and apparently the nation).

The Orange County Register has been following this situation and has published its own editorial calling for Judge Kelly to resign or be recalled. Here is the link to that editorial: Time to Leave the Bench.  This follows Supervisors Todd Spitzer, Lisa Bartlett and Shawn Nelson calling on the judge to resign or be recalled.

I think the Supervisors are right to call for a recall for this simple reason:  Rather than wait until Judge Kelly would normally stand for re-election, let him now, while the issue is very much before the people via the news media, explain to the voters who are tasked with electing or re-electing him, why this sentence was legal and proper.  Then let the voters render their verdict!

8 Responses to “Judge M. Marc Kelly – Let the Voters Render Their Verdict!”

  1. Do you actually doubt the legality and propriety of downward departures based on Eighth Amendment grounds, Craig? You may doubt its prudence — and I might agree with you — but these assertions that it was “illegal” are mind-boggling. If it violated the Eighth Amendment, what would have been illegal is cowering and refusing to issue a downward departure simply because one was afraid of the decision being used against him politically — which is just what’s happening.

    • Craig P. Alexander said

      Greg – are judges called upon to review a law on Constitutional grounds, including the Eighth Amendment – of course. But what I am saying is simple – the judge made his ruling. It is a shocking ruling to many people as you can see from the uproar over it. It is not just that the judge found the mandatory minimum sentence not proper, it is his reasoning for doing so despite the evidence that many people find unbelievable.

      I believe strongly that the people have the right to pass judgment on the judge’s ruling. Respectfully to call this purely “political” is in my opinion not proper. I am 100% sure there are politics involved but that is not the only thing at work here. The people’s outrage over this ruling did not find its genesis in political issues or ambitions but in what people feel is or is not a just sentence under these circumstances. What I am saying is lets allow the democratic process to happen and let the voters decide. As I said in my main post above – let the judge justify this ruling to the voters. Then let the voters decide if they agree with the judge or not. That is democracy at work.

      • If you view it as a 15-year reduction, it may be shocking. If you view it as a 10-year sentence, not so much.

        What aspect of the judge’s expressed reasoning for finding the mandatory minimum improper in this circumstance “unbelievable”? I can understand why laypersons wouldn’t have read (or understood) his reasoning, but you’re a lawyer. Do you really find it “unbelievable”?

        Your position suggests that you’re fine with judges being sufficiently intimidated by the prospect of public anger for them not to follow the Constitution for fear of electoral reprisal. I think that, as attorneys engaged in public discourse, in this sort of situation we have some responsibility to analyze, understand, and explain the ruling. I did this — reluctantly, as a matter of fact, because I know that it can be politically misused — on Orange Juice Blog. I now think that I understand what he was getting at — briefly, it’s that factors that are not actually elements of the crime are presumed to be present in a case of this type and are thus part of the rationale for a 25-year sentence, but those factors are not present here — and at a minimum it’s a cogent argument. Do we really want the public to vote on constitutional analyses? Would you be comfortable if I were to do so regarding Second Amendment rights?

        • Craig P. Alexander said

          Greg – I am not entering into the fray about “illegal” sentence reductions. But I have read the judge’s reasoning that the defendant did not have premeditated intent and that he was sorry for his conduct. Yet the evidence is that he put his hand over the child’s mouth when her mother was calling for her so that she could not respond. That, to me, shows he knew and understood the wrongfulness of his conduct. Plus this is the rape of a three year old relative. He was someone she should have been able to trust and he abused that trust for his own sexual gratification.

          You put forth the position that I as an attorney should come to the same conclusion as you do and give Judge Kelly a pass. After looking at the evidence (as much as we all have – including your well written post on Orange Juice), I disagree. I must also disagree with your saying that when I call for the judge to explain and justify his ruling to the voters this is “intimidation.” The fact that judges like other elected officials must stand for election every six years is a fact of life for elected judges in California. Are you arguing for life time appointments as in the Federal Judicial bench?

          We live in a free society where people have First Amendment rights which includes speaking out about judicial rulings. In certain states like California we also have judicial elections for trial court judges (and a modified “retention” process for appeals court justices) plus the recall process. A recall process would allow Judge Kelly to justify his ruling to the people he was elected to preside as a judge over them. Then the voters would decide. Greg – should the voters have a right to make that decision or should they just shut up, accept it and go away?

          • That’s a good fray not to enter, Craig!

            The Judge identified many more factors that the two that you mention that distinguish this from the sort of prototypical case of child molestation that explains why the penalty for this act is so much higher than those for rape or manslaughter. Essentially, this awkward and socially isolated kid became sexually around and engaged in a terrible and impulsive act — and almost as soon as he had commenced it, his larger brain reactivated and he stopped. It was not a prolonged act (as we would expect of this sort of molestation); he did not “release his sexual tension” during that act, to put it delicately, although he did afterwards (and that is frankly the thing that most troubles me about the ruling.)

            Sure, he knew the wrongfulness of his conduct — once his brain kicked into gear. Now obviously we can’t let people go around claiming “oh, I’m sorry, I just had a bad moment, wasn’t thinking clearly, please forgive me” when they do something this heinous. A TEN-YEAR SENTENCE sends THAT message loud and clear.

            Judges are different from other elected officials in that they are assigned the job of NOT caving into the popular will, which may reflect, for example, a thirst for revenge not tempered by a standard analysis of just punishment. Judges are supposed to protect our constitutional rights — NO MATTER WHAT the public thinks about it. (You’re probably familiar with the studies that have found that when you present the principles presented in the Bill of Rights without labeling as Amendments I through X, they are generally pretty unpopular with the public. That’s human nature.)

            I’m not really enthusiastic about direct election of judges — but neither I nor (to my knowledge) anyone else has come up with a better alternative. If we’re going to elect them — and no, I don’t favor it for federal judges — then we really do have to remain vigilant to ensure that they are not punished for enforcing even unpopular constitutional rights. (You should know that certain applications of the Takings Clause, for example, are pretty unpopular as well.) So yes, I DO think that it falls to members of the bar to espouse and defend these principles of an independent judiciary.

            • Craig P. Alexander said

              Greg – It is one thing to “espouse and defend these principles of an independent judiciary” and quite another to defend an “unaccountable” judiciary. So I will repeat one of my earlier questions to you: “A recall process would allow Judge Kelly to justify his ruling to the people he was elected to preside as a judge over them. Then the voters would decide. Greg – should the voters have a right to make that decision or should they just shut up, accept it and go away?”

              Also, you turned my other question to you around – I did NOT ask you if Federal Court judges should be elected by the people. I asked you if you believe State Court judges should be given life time appointments like Federal Court judges do? To put this question in even clearer terms – should the system of elected State Court judges like Judge Kelly be changed so that Judge Kelly (and other state court judges) be appointed for life?

              To others reading this – Greg’s review of this issue over at Orange Juice blog is very good even if I do not agree with all of Greg’s analysis or conclusions. I recommend taking the time to read it.

              • Well, if you like it, then I’ll link to it: http://www.orangejuiceblog.com/2015/04/the-judge-the-molester-his-sentence-and-its-critics-are-downward-departures-really-illegal/ [Warning: It’s over 4500 words — I got VERY thorough there.]

                I would not tell the voters to “shut up” just because (as usual) they don’t take the Eighth Amendment seriously enough. But I also believe in an independent judiciary — and I think that it falls on lawyers to take the lead in defending it, because we know better than anyone how important it is.

                I don’t think that I’d want lifetime appointments for Superior Court Judges — but I might want to see the terms extended to ten years and have them face retention elections (as members of the Supreme Court and Appellate Court do) rather than direct challenges. The issue is: do we want judges to keep an eye towards what they’ll do once their term is over — meaning that they may try to support their once-and-future practice area from the bench — or do we want them to keep their eye on the fair administration of justice?

                That’s a hard problem to solve. Saying that judges should not be bludgeoned by public outcry if they actually took a reasonable step in sentencing is a lot easier. But we can’t and shouldn’t silence the public — which is why I feel a burden to speak up even to defend a decision that I’m not sure that I would have made.

  2. J.R. Mathews said

    Regardless of the arguments, this judge is clearly an idiot and probably too old to be rendering cogent decisions any longer (seen that happen with judges before). Time for him to simply GO.

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