Defense Attorneys Cry Foul on Supervisors’ Demand That Judge Resign

Local criminal defense attorneys publicly confronted Orange County supervisors this week, accusing them of attempting to hijack the judicial process by calling for the resignation of a judge who reduced the sentence of a 19-year-old man convicted of sodomizing a toddler.

Orange County Superior Court Judge M. Marc Kelly’s decision to reduce the sentence of Kevin Nieto-Rojano to 10 years in prison, from the mandatory minimum of 25 years-to-life, has drawn widespread criticism and international attention.

The decision is now slated to go before an appeals court, which will review Kelly’s rationale and decide whether to uphold the sentence or impose the 25-year minimum.

Supervisors joined the fray last week when three board members – Todd Spitzer, Lisa Bartlett and Shawn Nelson – held a news conference outside the county courthouse criticizing the judge and calling for his resignation.

They followed up with a proposed resolution, originally up for approval Tuesday, that would have formally censured the judge and demanded his “immediate resignation.”

Supervisors backed down from some of the language, such as the resignation demand, before their discussion Tuesday. But defense attorneys said they were still deeply concerned about the supervisors’ actions.

“We’re concerned that the courts be able to operate without fear of politics,” said Paul Meyer, a prominent defense attorney and president of the Orange County Criminal Defense Bar Association.

“We think that this political injection is a concern, and it violates what we consider to be the separation of powers where you have three branches of government,” Meyer said, speaking on behalf of the association.

The resolution, he added, gives the misleading impression that supervisors have some control over judges’ discipline, and appears to be the executive branch addressing the appeals court that’s slated to review Kelly’s ruling.

“He may have decided the case wrongly – that’s a Court of Appeal issue and we think it’s coming in that direction. I just ask the board to allow the judicial process to proceed as it was intended and constitutionally mandated,” Meyer said.

Another defense attorney, Lee Stonum, criticized supervisors as going after an easy target – a judge who can’t publicly speak in his defense – while ignoring “real scandals” like a recent court ruling that District Attorney Tony Rackauckas’ prosecutors violated the constitutional rights of defendants.

“What you are doing, in this act of political theater, is not courageous. It is an act of calculation, of opportunity, that has only possible benefit – personal, political – and absolutely no risk whatsoever. It’s an act of cowardice,” said Stonum.

“I think it’s hypocrisy at its worst, and particularly from you, Mr. Chairman, who claims to be a victims’ rights advocate,” Stonum said, addressing Spitzer.

Under Marsy’s Law, which Spitzer co-authored, the toddler’s parents are treated as victims, and their request to the judge was for probation for the perpetrator, he added.

“It seems that you are willing to advocate for victims’ rights when they are calling for blood, but not when the situation is reversed,” Stonum said. “Why is their voice not important here?”

Spitzer, meanwhile, staunchly defended his decision to speak out.

“When a 3 year-old is brutally sodomized and raped I’m not gonna sit silent when that sentence is imposed in violation of state law,” said Spitzer, who rejected the notion that the appeals court judges would be influenced by supervisors’ pronouncements.

“I seriously believe that that was an unlawful sentence, and I’m gonna say that from the highest mountain” at every opportunity, he added.

Nelson said he agreed the ruling was so egregious it warranted his public criticism.

“I don’t want to be out making public pronouncements,” Nelson said. “But I did it because, as a father of three…[the ruling] was offensive, and I believe the judge consciously decided to violate the law, and I don’t believe” this is a trend “our society will stand for.”

“This was unique…extreme exception.”

Supervisor Andrew Do, meanwhile, said that while he disagrees with the ruling, the appeals court is the proper place for it to be evaluated.

“I do feel that we should be careful in not saying things that may mislead the public to imply that we have such power,” Do said.

“We don’t have any role in disputes over judicial interpretation, application of law, or judicial incompetence.”

A public discussion of the victim’s case could also cause her more harm by making the details of her case a further part of the public record, he added.

“I don’t think this is the venue in which we should be wordsmithing the resolution,” said Do.

At the request of Supervisor Bartlett, supervisors postponed a decision on the resolution until next Tuesday’s meeting.

Supervisors will continue editing the draft in the days leading up to the meeting, Do said.

You can contact Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.