It’s a standard line in almost any Hollywood legal drama: A prosecutor tells a herd of reporters he won’t answer a question because “I don’t want to try this case in the court of public opinion.”
In real life, that premise might be changing.
Go to YouTube this week and punch in the words “Orange County District Attorney and Kenneth Clair” and you’ll find a legal drama playing out almost exclusively in the court of public opinion.
On one side is the first in a series of short videos from the District Attorney’s Office explaining why it thinks there should be no new trial, or any leniency for Clair, who in 1987 was convicted of the murder three years earlier of Linda Faye Rodgers, a Santa Ana nanny.
On the other side are several videos from people who argue that Clair is innocent and, at the very least, should get a new trial. The case has become a cause celebre on the internet, with 160,000 signatures nationwide on a change.org petition supporting Clair’s release and more than 18,000 views on the ReasonTV videos. Clair is not the only defendant to use an online petition in hopes of swaying Orange County prosecutors.
It’s also hardly the first time local prosecutors have gone online to issue a message. There are at least 79 YouTube productions from the Orange County District Attorney’s Office, mostly public service announcements about topics such as teen drinking and driving.
But the prosecution’s new Clair videos (as of Wednesday only two of the planned seven had been released) might mark the first time an Orange County case has been discussed, explained and argued in such detail outside court.
“Frankly we’re not getting a fair shake from the media,” said Susan Kang Schroeder, chief of staff for the Orange County District Attorney’s Office.
“We’re trying to get the truth out. It’s not good for the people to believe an innocent man is sitting on death row.”
Clair’s supporters have a different take. They say that an eyewitness to the killing – a child – described the attacker as a white man. Clair is black. They say that DNA found inside the victim did not belong to Clair. And they say incriminating statements made by Clair after the killing were taken out of context.
Records show the child witness later recanted and the DNA pointed to another male who was a child at the time of the killing.
For those reasons and others, prosecutors still believe Clair is guilty and are preparing to re-sentence him in January to life in prison. Clair previously had been given the death penalty, but it was overturned last year in appellate court.
The D.A.’s videos, so far, feature Rodgers’ adult daughter and brother, relating their emotional loss. The videos are heavy on blood spatters and crime scene photos. Assistant District Attorney Dan Wagner sets the scene, describing how Rodgers was a live-in baby-sitter for a Santa Ana family.
The first video opens with District Attorney Tony Rackauckas sitting at a desk and saying that “the internet is a powerful tool” and that his goal in making the video is to clarify what he views as misstatements online about the Clair case.
There is nothing in the first two segments that directly refutes Clair’s supporters, only Rodgers’ tearful daughter, Kristy Nicole Rodgers, saying that the effort to free Clair makes her feel “disgusted,” as if her mother’s life didn’t matter.
While Schroeder said there is no ulterior motive for the office’s decision to make the videos, legal experts said it was a smart move, although one based on outside pressure.
Such pressure increasingly is common, for all prosecutors, and it often comes via social media.
Last year, a victim’s statement in the sentencing of Stanford swimmer Brock Turner for rape went viral. The message prompted a national discussion about sentencing (Turner was sentenced to six months in jail and three years’ probation on a charge that could have carried 14 years in prison), race and the nature of rape, among other things. Today, the judge in the case faces a recall, in part because of publicity about the case generated online.
Closer to home, in 2013, supporters of psychology professor Norma Patricia Esparza sent more than 6,000 online signatures to Rackauckas to gain her release on a murder charge. She ultimately pleaded guilty.
Lawrence Rosenthal, a professor at Dale E. Fowler School of Law at Chapman University, said prosecutors tend to reserve their arguments for the court.
“When you see a prosecution office depart from a time-honored technique, you know that the prosecution office is feeling the pressure,” Rosenthal said. “This is a good thing. This is a sign something healthy is going on in Orange County.”
The Clair tug of war comes in the midst of a national debate over the use of jail informants in Orange County and the withholding of evidence from defense attorneys. Orange County’s justice system has landed on the opinion page of The New York Times and is the subject of an upcoming “60 Minutes” segment and a CNN documentary.
By taking the Clair case to the general public, Rackauckas is appealing to people in a way that will become the norm, Rosenthal predicted.
“I think what you are looking at is the future,” he said.
Boston jury consultant Edward P. Schwartz noted that Rackauckas can’t afford to let negative information fester unanswered, tainting the jury pool, swaying potential judges and eroding the public trust.
Schwartz said such a negative atmosphere could affect unrelated cases down the line.
“A little bug has been planted in the ear of a prospective juror,” Schwartz said. “You don’t want them going on the web and finding a one-sided argument. That’s not what you want in the front of people’s minds.”
Schroeder insists Rackauckas doesn’t have any high-tech intentions in mind, other than to get out what he feels is the correct information.
“And this is the new medium,” she said. “People take in information more effectively when it’s on video.”
Contact the writer: tsaavedra@scng.com
