Cookie Cutter Justice Isn’t Justice

by Diane Dimond on April 20, 2015

Kevin Rojano Nieto Will Spend Ten Years in Prison

Kevin Rojano Nieto Will Spend Ten Years in Prison

Conservative leaning friends are going to tell me I’ve gone off the deep end. My more liberal minded friends are going to tell me I just don’t get it.

But let me make it clear – one thing I am not is soft on pedophiles. That said, the case of Kevin Rojano-Nieto epitomizes to me how misunderstood our criminal justice system is and how mandatory sentencing guidelines were doomed from the get-go.

The backstory:  Veteran Superior Court Judge M. Marc Kelly of Orange County, California knows a bad guy when he sees one. Earlier this month Rojano-Nieto, now 20, was due for sentencing after a jury found him guilty of sodomizing a three-year-old female relative. The state’s mandatory minimum sentence is 25 years in prison. After hearing all the evidence Judge Kelly defied that guideline and gave Rojano-Nieto 10 years.

Ca. Superior Court Judge Marc Kelly

Ca. Superior Court Judge M.  Marc Kelly

The lesser sentence coupled with what the judge said at sentencing has victim right’s advocates and others screaming for Kelly to resign or be recalled from the bench.

The judge said Rojano-Nieto, who was in a garage playing video games when the tiny child wandered in, “did not appear to consciously intend to harm,” her. And even though he covered her mouth so she couldn’t scream out during the attack the judge concluded he showed, “No violence or callous disregard for (the victim’s) well-being.”

Judge Kelly noted the little girl, who came to court, “Appears to be a happy healthy child…headed for a normal life,” and said while the crime was “despicable,” to give the defendant 25 years would be “cruel and unusual punishment.”

Supervisor Bartlett Doesn't  Realize its the Police Who Protect

Supervisor Bartlett Doesn’t Realize its the Police Who Protect

Outside the courthouse angry citizens held a news conference. City Supervisor Lisa Bartlett declared the judge, “must have forgotten that his job is to protect the victim, not the perpetrator!” Speaker after speaker called for an immediate end to the judge’s career.

I’m betting none were in court to hear the facts of the case or the victim impact statements or the sentencing. But here are some fast facts:

·         The mother of the little girl (also related to the defendant) begged the court for a merciful sentence, citing Rojano-Nieto’s dysfunctional and abusive upbringing.

·         The defendant — who expressed extreme remorse and declared, “Despite my actions …that is not who I am,” — had no prior criminal record.

·         The court found that, “In an instant he reacted to a sexual urge and stopped almost immediately … within seconds of commencing his offense (realizing) the wrongfulness of his act.”

·         An independent psychologist concluded the defendant was a low-risk for repeating his behavior. Rojano-Nieto was described as extremely immature, timid and socially withdrawn.

Furlong Urges Common Sense on Sentencing

Furlong Urges Common Sense on Sentencing

Judges are not supposed to be swayed by outside influence. The purpose for an impartial judge is to rule on each individual case and not resort to one-size-fits-all cookie cutter justice. Mandatory minimum sentences have erased judge’s discretion and taken this country down an embarrassing road to massive prison over-crowding that’s been condemned worldwide.

Jack Furlong has practiced law for 40 years and is a vocal opponent of mandatory sex-crimes sentences. “The judge’s job is not to protect victims, as the local supervisors claim,” he told me during a recent conversation. “It is to administer justice,” the way they see fit.”

“These cases are invariably fact sensitive, and to make a blanket statement… (that a person is a) ‘child molester’ robs all of us of the opportunity to distinguish one case from another,” Furlong said.

Ten Years Behind Bars is a Long Time

Ten Years Behind Bars is a Long Time

Nonetheless, he believes the California prosecutor’s planned appeal of Judge Kelly’s “illegal” sentence will probably be successful. Young Rojano-Nieto could very well see his sentence upped to 25 years or more.

I wasn’t in that courtroom to hear the evidence but I’ve covered enough criminal cases to know the difference between a career pedophile propelled by obsession and a horribly stupid mistake made on the spur of the moment.

I also know that ten years behind bars is a very long time – even for a hardened criminal. Think of the effect a decade would have on a timid young man who made one terrible error that lasted just a few seconds. What kind of man will he be when he finally gets out of prison? Broken and dependent on the state — or angry and full of revenge?

It is distressing that we’ve come to think that if we stomp our feet and yell real loud our deliberative court system can be toppled by our demands. That is not the way it is supposed to work. That is not a path to justice – its mob rule.



Diane Dimond April 20, 2015 at 9:53 pm

Facebook Friend Drew Rutberg writes:

“I’ve seen this case. The judge should be removed from the bench right away. How can you say sodomizing a full grown woman against her will is not with the intention of harm let alone a three year old child. It’s absurd. There has to be much tougher sentencing for pedophiles and sex criminals at large. To stop them before they occur? Sadly no. Any practitioner worth their salt will tell you there is no effective cure or treatment for this type of offender. But we can keep them off the street to protect the next victim . With these guys there will always be a next victim.”

Diane Dimond April 20, 2015 at 9:54 pm

DD responds to Drew Rutberg:

Did you read this column? This is a kid/man (now 20) who was abused as a child…(what i didn’t say was: by his own father) His contact with this 3 year old was “a few seconds” … while he did expose his penis and touch it to her body (momentarily) its not clear that the was any penetration.The judge called the girl (now 4) into his courtroom and found her to be happy and well-adjusted. Her mother (also the mother of the defendant) begged the court for leniency explaining in great detail that the kid/man had a horrible childhood of abuse, had never been in trouble of any kind before and an independent mental health professional (psychologist or psychiatrist?) backed up what Mom said. Bottom line: this is not a career preferential pedophile…and I believe THOSE are the ones for whom there is no help, no treatment. THOSE are the stealthy ones we need to “keep off the street to protect the next victim” – not confused, abused kids like this young man.// And, Let’s not overlook the fact that he has gotten a sentence of 10 years in prison. 10 long years in prison for his crime.

JoJo April 20, 2015 at 11:30 pm

How do you know it was only a few seconds? Because sex offenders never lie?

The reports I read said that the mother learned of the abuse after her child expressed physical pain from what occurred to her. That sounds like penetration to me.

Our courts shouldn’t base justice on what the families of victims want. If that were the case, sentencing would range from no punishment at all to death by crucifixion.

Diane Dimond April 20, 2015 at 9:56 pm

Facebook Friend Nancy Robel writes:

“Pedophiles are made not born. That’s my experience, anyway. And I don’t think they can be cured. Male abuse victims are imprinted with what turns them on when they are pre adolescent and abused at a young age. Sadly, what was done to them becomes they’re MO with their victims. They probably spend a lifetime trying to fight the urge to abuse another child, even with counseling. Unless we can learn how to get inside their head, the system in place protects the most innocent of potential victims. 10 years may not be appropriate, but sex registration is. Now I guess I should go read the article.”

Diane Dimond April 20, 2015 at 9:56 pm

Drew Rutberg responds,

“Nancy i agree. There is no cure or treatment for these people. Just as they are adept at grooming children they are just as adept at grooming mental health professionals.”

Diane Dimond April 20, 2015 at 9:58 pm

DD responds:

Nancy Robel and Drew Rutberg,

You know all those stories you read about pedophiles who (it turns out) abused dozens and dozens of children? THOSE are the ones we should be concentrating on locking up forever…there is no hope for them, I agree. But for the abused person who then goes on to act sexually inappropriately ONCE – is it fair to relegate them to prison for 25 years as mandatory sentencing demands? Really? Wouldn’t it be smarter to get them into therapy immediately to save society a lifetime of prison expenses and help re-direct their tortured minds?
I contend not all of those convicted of sex abuse charges are of the same ilk.”

Gary L. Hoe April 21, 2015 at 3:24 pm

Diane, I agree with your piece wholeheartedly, and with your responses to the letters above who disagree. We need judges with a brain and some common sense, not a robo-judge who just throws out punishments without considering the circumstances.

That said, and since you liked one of my earlier posts on capital punishment, how about amputating the privates of the truly incorrigible sex offenders? And I mean complete amputation, all of it, smooth-contour, sit-down-to-pee, full amputation. If a man can’t behave towards others as a man should, he doesn’t deserve to wear the kit.

Angela Baskerville April 21, 2015 at 9:03 pm


Great article. I completely agree with your position on mandatory sentencing laws. While there are certainly aspects of “Texas justice” that I’m not proud of, one of the great things about this state is the fact that we don’t have mandatory minimums. Juries or judges set the punishment based on the facts of that particular case. Plus, mandatory minimums tie the hands of prosecutors and defense attorneys, hindering the plea bargaining process that is and should be an essential part of our judicial system. This case seems like a perfect example…it should have been plead down with a sentence that everyone involved could live with. Thanks for sharing!

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