04/12/2015
Efforts to recall a Judge should be undertaken with great care. Currently, there is a movement to recall Hon. M. Marc Kelly, a Superior Court Judge on the Orange County Superior Court. Members of the public, alerted by the media and riled by politicians who immediately jumped on the bandwagon to stand with victims' rights representatives, are painting the Judge as a weak, soft-on-crime (especially s*x crimes) reprobate who deserves to be tossed off the bench with dispatch. They're upset about a ruling in which the Judge concluded that applying the statutory life sentence would constitute, in that particular case, cruel and unusual punishment. Granted, the scant facts the media has revealed to us are troubling: The victim is 3 years old, and the charge, according to the news, was r**e. Other than that, we know very little aside from the Judge's finding that the defendant's criminal intent was fleeting or lacking. But here's what I do know. Judge Marc Kelly is a former Orange County prosecutor — one of the toughest and most respected prosecutors in the office. He is Catholic, and he played basketball at Notre Dame. He has a family, and he cares about victims and the safety of our communities — facts he has demonstrated to be true over decades of public service. He also takes his oath of office seriously. People may not understand it, and they may not like it, but it is the job of a Judge, not only to blindly apply the dictates of statutory law in ministerial fashion, but to apply the state and federal Constitutions, which are the Supreme laws of our jurisdiction. Sometimes, the rights enumerated in those documents conflict with and trump statutory law, and indeed, in the case being debated in the media, Judge Kelly found that to be so. It is certainly possible Judge Kelly's ruling may be legally erroneous. But that is what appeals are for, and as I understand it, the District Attorney intends to appeal. So, before quizzically assuming that a Judge with a long record of championing victims' rights has a generalized disdain for victims of crime, should we not allow the appellate process to determine whether, on the facts of this particular case, the Judge was legally compelled to do or justified in doing what he did? After all, If it turns out he was, and the frenzied recall effort is successful before that result is known, how will those who supported his recall feel then — assuming his vindication is even reported by the media? In short, recalling a Judge is an extraordinary remedy, and it should be undertaken with great care, and only after all salient facts are known and verified. Otherwise, a Judge who has sworn to uphold the Constitution of the United States and of the State of California deserves the benefit of anyone's doubt. That includes Judge Marc Kelly.
