Third Strike

Eyewitnesses to the 1980 murder of a 19-year-old Burger King employee were pretty certain of a few things: the gunman was a clean-shaven, 6-foot-3-inch black man who did not limp.

But Tony Rackauckas, then a deputy district attorney, vigorously prosecuted Dwayne McKinney for the crime—Dwayne McKinney, a 5-foot-9-inch black man with a heavy goatee and a limp. Twenty-seven days before the fast-food restaurant killing, a shotgun blast tore away part of his right calf. At the time of the murder, McKinney walked with an unmistakable, painful limp.

Today, Rackauckas is the DA—one of the most powerful elected officials in Orange County—and a self-described "law-and-order" lawyer eager for "expeditious" prosecutions. In the early 1980s, he was a feisty rising star in the DA's homicide unit. He also proved to be a politically ambitious Republican, who understood that talking tough on crime was a prerequisite to elected office. Through his political connections, Rackauckas made himself a perennial candidate-in-waiting to replace long-term DA Mike Capizzi.

Despite the startling discrepancies in appearance between McKinney and the real killer and the fact that no physical evidence tied the defendant to the crime scene, Rackauckas plowed ahead. He urged an Orange County jury to ignore the exonerating facts. The deputy DA asked jurors to focus instead on the testimony of two witnesses who used a police lineup to finger McKinney as the killer.

Two decades later, those witnesses would reveal that minutes before a photographic lineup, a cop tainted the identification process by covertly pointing to McKinney as the suspect.

Another police officer, Lieutenant Art Romo, later admitted the evidence against McKinney wasn't solid. In 1999, Romo told a reporter, "It was a close case."

Rackauckas seemingly never saw it that way. He sought the death penalty for McKinney. To Jerry Hicks, an unabashed pro-prosecution Los Angeles Times columnist who covered the McKinney trial, the deputy DA's behavior was not merely reasonable but it was also, he recalled earlier this year, "an example of courtroom brilliance."

Though he narrowly escaped Death Row, McKinney was convicted of murder and sentenced to life in prison. There, he was stabbed three times and was a frequent target of gangs. Rackauckas moved on to other prosecutions. But thanks to scrutiny by then-Orange County Register reporter Stuart Pfeifer, a probe by the public defender's office and the subsequent recanting of key prosecution testimony, Rackauckas' work was eventually exposed. As it turned out, McKinney was likely at home in San Bernardino County when the Orange County murder was committed.

An Orange County judge freed McKinney in January—after 20 years behind bars.

Not surprisingly, Rackauckas posed unrepentant. The "system worked," he said. "We did the right thing." Tori Richards, his media spokesperson, added coldly, "There is nothing to apologize for."

Unlike McKinney, Rackauckas has done very well for himself during the past two decades. He maintained an impressive conviction rate, snared several more high-profile cases, and worked legislatively to increase the tactical advantages of courtroom prosecutors. Thanks in part to his anti-defendant bias, he grabbed a seat on the Orange County Municipal Court in 1990. Three years later, Rackauckas—the man who as a teenager was a gang member convicted of assault with a deadly weapon—sat comfortably dispensing justice as a Superior Court judge.

Rackauckas didn't rest. While on the bench, he schmoozed at countless political fundraisers, determined to maintain potentially lucrative ties to the local power elite. In 1998, he won Republican Party support in his winning campaign for the district attorney's office, in part by promising to go easy on political crimes committed by local elected officials. It likely didn't escape him that an overwhelming number of Orange County's officeholders are fellow Republicans.

In perhaps his greatest understatement, Rackauckas said when he entered the DA's office, "I think I have a unique perspective on the criminal justice system." Sadly, that perspective puts the DA at odds with the country's founding fathers. Rackauckas has proclaimed that it is reasonable for the government to murder one innocent defendant if it can execute 100 who are guilty. He said, "It will never be a perfect system."

Beginning with the McKinney case, few DA's offices around the nation have done more this year than Rackauckas' to prove the system is broken. On Aug. 14, a local jury sent an unmistakable slap to the DA in the Shantae Molina murder case by unanimously voting that the 22-year-old Laguna Niguel woman was not guilty on all charges. Molina responded with a $25 million lawsuit claiming she was the victim of "abusive" prosecutors and "unethical" cops.

A week later, Arthur Carmona —a Costa Mesa teenager who was convicted of two armed robberies in 1998 despite outrageously bad police work, dubious DA tactics and shaky eyewitness testimony—walked out of state prison after two and a half years. Though clearly innocent, Carmona secured his freedom only after acceeding to the DA's unconscionable demand that Carmona sign a formal court document prematurely absolving the Irvine Police Department and the DA's office of any wrongdoing in Carmona's arrest. Under duress in a prison cell with a middle-aged murderer, the 18-year-old Carmona either signed Rackauckas' deal or faced another eight years in life-scarring confinement. He signed.

Rackauckas—who apparently is spending too much time in an office full of starched shirts, monogrammed rings and frat-house egos—hasn't been as logical as Carmona. Reading a prepared statement at a hastily called Aug. 21 press conference, the DA had the audacity to lecture Carmona through the media.

"Arthur," Rackauckas said with phony personal familiarity and avuncular concern, "it is a rare event that a convicted defendant gets this kind of break."

Those of you about to serve jury duty in Orange County's criminal courts should remember that inadvertently enlightening statement.


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