Federal Judges Secretly Overturned Murder Defendant's Death Penalty

One more DA Tony Rackauckas mess documented by federal appellate panel
One more DA Tony Rackauckas mess documented by federal appellate panel
Jeff Drew

Think you have it bad?

Consider Kenneth Clair's living hell.

When Clair was an infant, his single mother ignored him for days at a time. An uncle often savagely beat him with metal objects, including one time that drove the then-teenager to get drunk and commit a New Orleans' public park robbery of someone's pocket change. That crime landed the 17-year-old in Louisiana's notorious Angola State Prison, where older inmates freely ran a sex slave operation that resulted in him being repeatedly raped during his five-year stint. When he emerged from custody, his spirit had been broken, friends noticed. 

In the early 1980s, Clair dreamed of a new life in California, landing in Orange County, where relatives eventually threw him out of their residence and caused him to become homeless. Prosecutors charged him for the 1984 rape and murder of a Caucasian woman in Santa Ana, though two witnesses said the killer had been a white man and no physical evidence tied this black man to the crime scene. Since 1987, Clair has lived on San Quentin State Prison's death row awaiting execution despite District Attorney Tony Rackauckas knowing the DNA recovered from the victim's vagina doesn't match, but refusing to tell defense lawyers the identity of the supplier.

Yet, last March good news finally found Clair.

That's when a three-judge panel at the 9th U.S. Circuit Court of Appeals secretly overturned Clair's death penalty punishment as unjust after concluding his criminal defense lawyer, Julian Bailey—now a superior court judge, had provided incompetent legal representation.

"[Clair] received profoundly deficient assistance of counsel during the penalty phase of this trial: while very strong mitigating evidence existed, it was never uncovered by [Bailey], and the resulting presentation [advocating a punishment of life in prison without the possibility for parole] was so anemic as to be virtually without value," the panel—judges Harry Pregerson, Stephen Reinhardt and Kim McLane Wardlaw—ruled. "These failures were due, defense counsel readily admits, not to any sort of strategic judgment but rather to incompetence . . . We conclude that there is at least a reasonable probability that after considering this mitigating and rebuttal evidence [detailing Clair's childhood and teenage years of brutal neglect and victimization] would have decided that [he[ should not be executed."

The panel noted the DNA controversy, but declined to overturn the special circumstances murder conviction, citing what it believed were damning words the defendant unwittingly uttered to a Santa Ana police informant wearing a hidden recording device weeks after the murder.

However, the judges agreed that Clair is entitled to renew appellate claims that he is factually innocent.

Yet, this man can't win for losing.

His removal from the state's execution list means he no longer gets a publicly-supplied attorney and the now 56-year-old, penniless inmate must pray for outside intervention to pursue his appeal.

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C.J. Ford, an Orange County private detective who has intensely studied the case and believes Clair is innocent, may be able to help. Last year, Ford launched a public petition to urge Rackauckas to re-open the matter. More than 150,000 individuals from around the nation have signed. Perhaps that notoriety can be converted into a fund-raising drive to pay future legal bills.

A Rackauckas aide told reporters late last week that prosecutors will not try to re-impose the death penalty, but Clair remains living with other condemned inmates on death row, according to records at the California Department of Corrections and Rehabilitation. 

An as-yet-to-be announced state court hearing should be forthcoming to formalize the punishment alteration.

In its ruling, the federal appeals panel chose not to name Clair or Bailey and omitted key trial details in hopes of preventing the public and press from linking their decision to an actual case. Their rationale? Though removing a defendant from death row is a monumental act with undeniable public interest, the judges claim their secrecy was motivated by a desire to shield Clair from humiliation over his prison rape experiences. 

California Attorney General Kamala Harris opposed the panel's punishment decision, insisting jurors wouldn't have sufficiently cared about the defendant's life experiences to spare him from execution.

The judges tersely dismissed that argument.

Go HERE to see the Weekly's OC Snitch Scandal story archive.

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Email: rscottmoxley@ocweekly.com. Twitter: @RScottMoxley

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