Marc Kelly: A Man of Courage

"The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day."

Joseph Story
United States Supreme Court Associate Justice, 1833

In California, unlike in the Federal judiciary, judges are not appointed for life. They are elected or, if appointed by the governor, still subject to reelection every 6 years. As a result, the concern that they will "yield themselves to the passions, and politics, and prejudices of the day" is greater in California than many other jurisdictions.

What that means if you are a judge presiding over criminal cases in California who wants to have a long, stress-free tenure on the bench is that the easiest way to do that is to be deferential to those with power—prosecutors, police, victim's rights attorneys—and "tough" on those without—defendants and their lawyers.

This is why, without fail, judicial candidates bill themselves as "tough on crime." No judge has ever been defeated for being too harsh on crime.

But there is a line. One of the functions of the judiciary is to protect the individual, the minority, the outcast from the mob rule that governs the executive and legislative branches.

On April 3rd, OC Judge Marc Kelly sentenced a defendant in his courtroom who was charged with sodomy of a child under 10, a charge that carries a mandatory minimum sentence of 25 years to life, to 10 years, finding that the statutorily mandated minimum would constitute cruel and unusual punishment if applied to the defendant before him.

The blowback was swift and brutal. Facebook pages popped up calling for Judge Kelly's recall, the hysterics of the national media (O'Reilly, Nancy Graceless) picked up the story and opportunistic OC Supervisors Todd Spitzer, Shawn Nelson and Lisa Bartlett were all too happy to grandstand for the cameras and call for his resignation.

Before I comment as to my ultimate point here, I want to point out a few things. First, I do not know much about the facts of the actual case. I do know, having practiced in front of Judge Kelly, that he is not someone who Orange County defense attorneys or prosecutors consider pro-defense. He was a District Attorney for 10 years and has always run with the full support of the DA's office. I do know that the case was unusual in that the parents of the victim pleaded for leniency and that doctors who had evaluated the defendant found that he was very emotionally immature due to himself being the victim of abuse and dysfunction.

But truly, I do not know if the decision Judge Kelly made was right or wrong. Here is what I do know: it was courageous. There's a saying that the right things are always the hardest things to do. Going about business as usual and sentencing this defendant to an indeterminate life sentence certainly would have been the easy thing. Judge Kelly did the hard thing. There was no possibility of personal or political benefit, only risk. Judge Kelly knew that when he saw what he believed to be an injustice about to happen in his courtroom and rather than take the easy path and let it happen, he said NO.

So whether you agree with that decision or not, contrast it with the actions of his critics. For Supervisors Spitzer, Nelson and Bartlett, for the people who anonymously spew hate in comments sections of articles, for the talking heads at Fox News, there is no political or personal risk, only opportunism.

Right or wrong, Judge Kelly took a courageous action to do what he believed was right and refused to yield to the mob. If he was wrong, the appellate courts will say so. This is what the Rule of Law is all about, this is the function of a judge. Those, especially lawyers like Spitzer and Nelson who should know better, who see an opportunity to grandstand and attack a man they know to be a decent judge and who they know cannot respond (Cannons of Judicial Ethics) are nothing but cowards in the mob.