Death Penalty Hungry DA Suspiciously Loses Appetite In One Perplexing Case
DA Tony Rackauckas: Anything I say can be used against me
If he weren't wearing an orange jump suit and sitting inside a fortified visitors' booth under heavy guard at Orange County's Theo Lacy Jail, you would never guess Kenneth Clair has resided on San Quentin State Prison's death row for more than 10,000 days. Clair describes the place as "hell," "torture" and "like living in a mental ward" where "there are fights every day." Yet, remarkably, the traumatic setting, his home since Ronald Reagan's presidency, has not broken this 56-year-old Louisiana native's spirit.
On a recent Saturday in his first face-to-face interview with a journalist, Clair showed no hint of being a monster worthy of state execution. He didn't threaten, babble or rant. There were no demonic curses, as I'd previously experienced with another death-row occupant.
A composed Clair is proud he has never committed violence against a prison guard or a fellow inmate during 30 years of incarceration. He smiled easily, spoke politely and was thoughtful—even funny. Having undergone 11 surgeries while living as a condemned man, Clair told the Weekly, "[State officials have] paid a lot of money to keep me together so they can kill me."
There is, of course, no joking about the crime that caused Clair's imprisonment. In November 1984, an intruder with sexual assault, burglary and murder on his mind brutally killed Linda Faye Rodgers. The 25-year-old had been a live-in babysitter at a Santa Ana residence tied to narcotics trafficking and owned by a man with ties to a white-supremacist gang, according to court records. Police quickly settled on Clair, a transient who'd lived in an abandoned property next door, as the lone suspect. Four days before the killing, he'd been arrested for trespassing at the residence and detectives speculated he might have returned for revenge after his release from custody.
Law enforcement officers faced huge problems, however. No forensic evidence tied Clair to the crime scene. Cops concluded the murderer must have been drenched in blood, but a woman who spotted the defendant shortly after the crime saw nothing out of the ordinary. More powerfully, two eyewitnesses—ages 5 and 6, both Caucasian kids Rodgers supervised—told arriving first responders that the perpetrator had been a white man. Detectives tried to rattle the description without success, according to an internal Santa Ana Police Department report. A third kid, the victim's daughter, separately concurred. She stated, "[They] have the wrong man. That black man didn't do it."
Nonetheless, on Dec. 4, 1987, an Orange County judge handed the ultimate punishment to the defendant, who could never be mistaken for a white man; he's a dark-skinned African-American. Five days later, Clair arrived at San Quentin, where he says prison officials asked him a disturbing question: Do you want to pick the method of your execution or allow us to decide?
Relaying the memory drove Clair's chin to his chest. He shut his eyes and remained silent for about 20 seconds. "I am an innocent man," he finally said softly.
It's impossible to judge the sincerity of a person you've known for a couple of hours, but any theatrics wouldn't change the fact the government's case has suffered multiple devastating blows in recent years. Prosecution witnesses have recanted statements. Unearthed records show police rushed to pursue Clair despite clues pointing elsewhere. We've learned the prosecutor, Mike Jacobs, had a penchant for hiding exculpatory evidence and harboring a relentless, win-at-all-costs mentality. Proof of a surreptitious Orange County district attorney's office (OCDA) deal to sway testimony emerged. Several jurors feel hoodwinked. The trial work of Julian Bailey, Clair's defense lawyer who is now a superior court judge, was so shockingly incompetent the United States Court of Appeals for the Ninth Circuit last year ruled the death penalty couldn't be fairly imposed. If he'd had even a semi-decent legal representation, there's "a reasonable probability" the case would have ended more favorably for the defense, the judges noted.
"Bailey served me up on a platter for Jacobs," said Clair. "And Jacobs got his conviction by using any means necessary."
The case is now in Superior Court Judge Thomas M. Goethals' Santa Ana courtroom, where the next step will be decided: Should Clair be re-sentenced to a punishment of life without the possibility of parole? Or can Goethals remove the special circumstances finding and give him an opportunity to someday regain his freedom? Those questions are pending because the judge has jurisdictional concerns. In February, the parties asked a federal appellate panel to provide guidance before a May hearing.
As a backdrop, there's a lingering forensics battle. In 2008, 21 years after the defendant landed on death row, scientific testing unavailable during the trial made a startling discovery. DNA found on Rodgers' vaginal area matched another individual tied to a Fresno case. District Attorney Tony Rackauckas has refused to share the identity of the person, claiming he was too young at the time of the murder to be guilty. Clair defense lawyer John Grele argued the DNA match extends to the man's male relatives whose identities should be turned over for investigation into whether one of them could be the killer. But, insisting he is positive Clair is guilty, Rackauckas refuses to cooperate, declaring the mystery person's "privacy rights" supersede the defendants' due process rights. Grele countered that he'd agree to a protective order about the identity, but the DA rejected that proposal, too.
"It's a tough situation," said Clair, who believes the DNA secrecy hides an inconvenient truth for prosecutors. "The race factor is self-explanatory. I'd bet $1 million, it's a white person's, like what the kids told the first responders . . . [The DA's office] knew the biological evidence didn't match me in 1985. They didn't want to test me [before my trial]. I was the one who demanded I be tested for two years. Finally, I got a court order."
Here's where the DA's sinister side re-emerges. With the defense signaling it has not given up on the DNA issue, Scott Simmons, one of Rackauckas' ranking deputy DAs, declared the office, usually adamant about keeping inmates on death row, will not pursue renewal of the death penalty in this case. Intrigue is heightened by the fact that OCDA continues to contrarily maintain Clair is worthy of execution.
Did Rackauckas alter his habit to slyly serve a double whammy on Clair? Defense lawyers certainly think so. If OCDA tried to re-impose capital punishment, the agency would have to surrender the buried DNA evidence, and the indigent defendant would likely keep publicly financed legal counsel to battle prosecutors.
"I look at that [OCDA decision] as their way of hoping I'd just go away and attention to my case would go away," he said. "They're not showing me any compassion."
Clair is also not happy with his own counsel. He claims Grele, his attorney for a decade, has kept him in the dark about strategy, repeatedly generated mistrust, failed to energetically demand the DNA evidence and has been unjustly dismissive of C.J. Ford, the private investigator who discovered most of the holes in the government's case. On April 2, he fired the San Francisco-area lawyer.
"I no longer want him to represent me," said Clair. "I'm always learning stuff after paper have been filed [in court] without him telling me what he's doing. My life is the one on the line here."
Grele refused to comment.
Near the end of the interview, the inmate summarized his goal.
"I was wrongly accused, convicted and sentenced," he said. "Thirty-one-and-a-half years later, I am still pleading for a fair trial."
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