Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison — instead of the state mandatory minimum of 25 years — for sodomizing a 3-year-old girl who is his half-sister.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant and the victim.
The judge expressed “some real concerns” about the state’s minimum sentence of 25 years to life in prison for a child sodomy conviction and about “whether or not the punishment is disproportionate to the defendant’s individual culpability in this particular case,” according to a transcript of the February proceeding.
“I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment,” the judge said in February, according to the transcript. “I know this is a very rare situation. It doesn’t come up very often.”
Sodomy case ‘not typical’
The sentencing occurred at a later proceeding, last Friday, and a transcript of the proceeding wasn’t immediately available.
But an Orange County Register account of that sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but “in looking at the facts of … (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case,” Kelly said.
The judge noted that the defendant “almost immediately” stopped and “realized the wrongfulness of his act,” according to the newspaper.
“Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child,” the judge said, according to the newspaper. “There was no violence or callous disregard for (the victim’s) well-being.”
Kelly, who’s been on the bench since 2000, didn’t return phone messages seeking comment on Thursday.
Recall petition drive begins
Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett, and Supervisor Shawn Nelson.
Supervisor Michelle Steel called for the judge to step down immediately, she said in a separate statement.
Elections to the five-member county board are nonpartisan.
Spitzer said he was responding to “a huge community outcry” against the judge’s sentence and his comments from the bench.
“We as a community spoke on behalf of the victim today, the 3-year-old child,” Spitzer said.
“If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It’s a family member,” Spitzer said. “The victim is related to the perpetrator, and that is what is so difficult here.”
But Spitzer said the judge didn’t follow state law. “We don’t want a judge that legislates from the bench,” Spitzer said.
“It’s just unfathomable that the judge would try to describe what is a brutal sodomy,” Spitzer added. “Sodomy of a 3-year-old child is a brutal, violent act in itself.”
Social media activists participate
Meanwhile, social media activists have pressed their own campaigns against the judge, including a Facebook page urging the judge’s removal, which garnered almost 10,000 followers as of Thursday.
A Change.org petition urging prosecutors to appeal the sentence collected more than 43,000 supporters as of Thursday.
Orange County District Tony Rackauckas has called the sentence “illegal,” and his office will appeal it, said his chief of staff, Susan Kang Schroeder.
“We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature,” Schroeder said. “We’re doing what the people of Orange County have asked us to do. We’re going to fight through the courts.”
Schroeder declined to comment on the calls for the judge’s resignation, saying “it would be inappropriate for us to talk about that since we are in litigation with him.”
The crime
In December, a jury convicted the half-brother for one felony count of sodomy with a child age 10 or younger and one felony count of a lewd act upon a child under age 14, prosecutors said.
The June 2014 crime occurred in the garage of the family home in Santa Ana, where the half-brother, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous.
The defendant also made his half-sister touch his penis, and he covered the girl’s mouth while their mother called out to her, prosecutors said.
At the time of the crime, the half-brother was a full-time bagger at a market and aspired to join the military, prosecutors said in court papers. With a “tumultuous” family life as a youth, he indicated physical abuse by his father, and poor performance in school led to his move back to California to live with his mother, prosecutors said.
“As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant’s actions, however, as sexual frustration,” prosecutors said in court papers. “All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted.”
But the defendant “poses a great danger to society and probably will for the majority of his life,” prosecutors added.
A mother’s plea
During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript.
“While a mother’s love is nothing less than unconditional, I am clearly aware of the gravity of my son’s actions and the inevitable discipline that he must now confront,” the mother’s statement said. “It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place.”
The mother said she hadn’t had the strength or courage yet “to directly talk” to her son about the crime, but she said her son “has allowed God into his heart and has committed himself to God’s guidance.”
Her son “is not a bad person,” and she asked for forgiveness for his “transgressions and for the opportunity to have a second chance at liberty,” the husband told the judge, summarizing his wife’s statement.
The judge remarked about the rarity of the mother’s plea.
“I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime,” the judge said. “It’s very rare in these situations. So I know it must be very difficult for you.”
Defendant cooperated
The half-brother’s attorney, Erfan Puthawala, said his client never denied his responsibility “for the heinous act he committed” and, in fact, cooperated with investigators.
“He made a statement essentially incriminating himself, which he did not have to do,” the defense attorney said.
“He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself,” Puthawala added. “It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism.”
Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.
Kelly is a Notre Dame graduate who was nicknamed “Movie Man” on campus for acting in the 1978 film “Fast Break,” the university said on its website. He was a walk-on guard to Notre Dame’s basketball team and later played professionally in Belfast, Northern Ireland.
He later served 12 years as a senior deputy district attorney in Orange County, prosecuting gang murder cases, the university said.
In 2000, then-Gov. Gray Davis, a Democrat, appointed Kelly to the bench, and Kelly won elections to stay on the bench in 2006 and 2012, Spitzer said. In 2012, Kelly ran unopposed, Spitzer said.
Davis was ousted in a recall election in 2003, and voters elected Arnold Schwarzenegger, a Republican, to replace him.