4/21/15 Activist Judges


I’m sympathetic to judges who claim they should have flexibility in handing down sentences and not be bound by mandatory prison terms. 

And then someone like California Superior Court Judge Marc Kelly [appointed to the bench in 2000 by Governor Gray Davis (D)] issues a sentence that causes us to shout, “This is why we can’t leave sentencing to an activist judge!”

Kelly heard the case of Kevin Rojano-Nieto.  The 20-year old was tried and convicted of a sex crime.  According to reports, there isn’t disagreement over whether the crime occurred.  But the sentencing raises questions.

Rojano faced a minimum sentence of 25 years.

Judge Kelly ruled that such a lengthy sentence would constitute cruel and unusual punishment.  The judge said, “Mr. Rojano did not seek-out or stalk (the victim).”  He also said Rojano “did not appear to consciously intend to harm (the victim) when he sexually assaulted her.”

With that as justification, Judge Kelly knocked off 15 years of the mandatory minimum and sentenced Rojano to just 10 years in prison.

Rojano was convicted of sodomizing a 3-year old girl.

A man clasped his hand over a toddler’s mouth to keep her from crying out when he sexually assaulted her.

Judge Kelly justified the reduced sentence by ruling there was no violence in that act.

Orange County prosecutors are appealing the prison sentence.

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