Activists Seeking Controversial Judge's Recall Get the Good Old Courtroom Runaround

The northeast corner on the second floor of Orange County Superior Court in Santa Ana was bustling with activity the morning of March 11, 2011. Television-news cameras faced young men in sports coats, their respective lawyers standing behind them. Ringing the entire room were men and women from college through grandparent ages with blue tape over their mouths, creating quite the spectacle for jurors, lawyers and defendants riding the nearby escalators.

The arraignment had just been continued for the so-called “Irvine 11,” Muslim students facing misdemeanor counts for disrupting a February 2010 speech at UC Irvine by Israel's ambassador to the United States. Lawyers for the students accused the Orange County district attorney's office (OCDA) of violating their clients' free-speech rights with the prosecution. Taking it all in behind the news cameras were the case's lead prosecutor Dan Wagner and OCDA chief of staff Susan Kang Schroeder.


Fast-forward to the morning of May Day 2015. Cameras were set up in the same spot, as they have been for so many news conferences over the years. It was much more subdued than it had been four years ago. There were no demonstrators or OCDA representatives, only a few plainclothes sheriff's deputies. But before the three people who would be meeting the press reached the escalators leading to the second floor, sheriff's marshals informed them that presiding Judge Glenda Sanders had ordered them out. An apologetic Lieutenant Jeff Hallock, the sheriff's spokesman, broke the news to the media that the gathering would have to move outside to the courtyard, a public spot that Sanders can't control.
It capped a disappointing morning for Bryan Scott, Patricia Wenskunas and Diane Brewer, who had envisioned a media moment every bit as solemn as the one Team Irvine 11 staged four years ago. Scott, chairman of the grassroots Remove Judge M. Marc Kelly From the Bench, said the veteran jurist's calendar of late has made it difficult to pin down exactly when he would be in his Santa Ana courtroom. But after receiving late word Kelly would be there Friday morning, Scott joined Wenskunas, founder/CEO of the Crime Survivors nonprofit, and childhood sexual-assault victim Brewer in trying to serve the judge a notice in person that they are formally seeking his recall because of a perceived light prison sentence given to a child rapist.
The trio was unsuccessful, being redirected to the office of the courthouse's general counsel, who accepted the recall documents on Kelly's behalf. Although the notice only required 20 signatures, 40 people had signed, including crime survivors and county supervisors Todd Spitzer, Michelle Steel and Shawn Nelson. It accuses Kelly of making “unacceptable and unilateral reductions of criminal sentences or punishments of criminals convicted of heinous sex crimes committed against a minor or child.”
According to Orange County Registrar of Voters Neal Kelley, after the registrar's office approves the petition within the next couple of weeks, recall advocates will have 160 days to collect a minimum of 90,829 verifiable signatures to force a special election as soon as February 2016.
Kelly's crime, in the eyes of the activists: reducing a state-mandated 25-years-to-life sentence for Kevin Jonas Rojano-Nieto, who was convicted in December of sodomizing a 3-year-old female relative in a Santa Ana garage. Citing probation and psychological reports that suggested the 20-year-old was remorseful and would likely not re-offend–as well as pleas for mercy from the woman who is the mother of both the defendant and the victim–Kelly ruled on April 3 the mandatory sentence would be unconstitutional and instead ordered a 10-year prison term.
The criticism of Kelly mostly comes down to his saying Rojano-Nieto “was playing video games as [the child] wandered into the garage. 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.”

Rojano-Nieto did not “stalk” the girl like the usual child predator, Kelly added.

The judge, who reportedly received death threats and has had police protection at his home, is prohibited by ethical rules from commenting on his decision. No such rules apply to veteran defense attorney Paul Meyer, president of the Orange County Criminal Defense Bar Association (OCCDBA). Meyer sent a statement to the press as Friday's news conference was going on, claiming a recall election will cost taxpayers $2.4 million.

“The victim's family asked for a reduced sentence, and the court-appointed experts provided support,” Meyer said. “Judge Kelly listened to them. The case is now on appeal. Why not wait for an appellate decision? What if the appeal shows that Kelly was right? The OCCDBA Board urges, 'Don't sign the [recall] petition. Don't throw away $2.4 million of taxpayer money. Let the judicial system work.'”

Meyer called the recall campaign “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.”

As for the raw politics that sent the media and the recall activists outside on a hot, sunny day, Sanders cited a long-ignored policy that one must obtain written permission before holding a press conference inside the courthouse. Hallock explained the way it was put to him was that without the policy, a homeless person could call a “press conference” every day and essentially live inside the courthouse. But a journalist informed Hallock that not only did this not look good from a public-relations standpoint for Kelly or the other Orange County Superior Court judges, who appeared to be pulling rank, but also it was setting an awful precedence because all future press conferences will require permission first.

In their remarks outdoors, Scott and Wenskunas thanked the sheriff's department for its handling of the relocation. Both then got to the matter at hand.

“The victim is living a life sentence,” said Wenskunas, squinting in the sun, as Brewer held a photo of herself in 1980, at 3, the age when she was molested, just like Rojano-Nieto's victim. Brewer later explained she was there on behalf of all child victims.

When Scott went before the stand that held microphones from KFI, KNBC, KTLA and FOX 11, among others, he noted his online campaign against Kelly began from his sofa because the judge's ruling was so “outrageous” and “the sexualization of children must stop.”

As sweat bubbles formed on his bald head, Scott accused Kelly of “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.”

As for the criticism that a recall threatens an independent judiciary and judicial discretion, Scott says Kelly could have framed a sentence of 25 years to life as lenient compared to the maximum-allowed term of 35 years to life. While the activist says he feels for the mother of the defendant and the victim, he believes protecting the public trumps sympathy for the family.

Earlier, while walking to the courtyard, it was mentioned to Scott that the Irvine 11 were able to hold their press conference on the exact spot he intended to host his own. His reply: “Of course.”

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