Nearly three decades after Santa Ana transient Kenneth Clair landed on California’s death row, the convicted killer quietly has received a reprieve and no longer faces execution.
Clair, the subject of a viral social media campaign that has attracted 152,000 supporters, now will serve a sentence of life without parole because of errors made by his defense attorney during his trial, according to court documents obtained by The Orange County Register.
The 9th U.S. Circuit Court of Appeals secretly overturned Clair’s death sentence in March and sealed the records. The three-judge panel, however, upheld Clair’s conviction for the 1984 murder of a Santa Ana nanny and noted conflicting DNA evidence uncovered since his trial.
Orange County prosecutors said Friday they won’t retry the trial’s penalty phase or challenge the appellate ruling, which the court sealed because of concerns Clair might be attacked in prison because of his history.
“We made this decision months ago in consultation with the state Attorney General’s Office,” said Senior Deputy District Attorney Scott Simmons. He cited the age of the case, as well as the difficulty in locating witnesses.
Prosecutors are trying to determine whether Clair, currently at San Quentin Prison, needs to come back to Orange County to be resentenced.
Clair was 25 and living in an abandoned house next door to the victim when police arrested him in the strangulation death. He had been out of prison for a year after serving six years for purse snatching. Clair was sentenced to death in 1987.
For more than a decade, private investigator C.J. Ford has championed Clair’s cause, arguing his innocence to mostly deaf ears.
Since November, Ford’s efforts gained attention online amid Orange County’s nationally watched informant controversy and allegations that prosecutors and police misused jailhouse snitches and withheld evidence.
Although Clair’s case does not involve jailhouse informants, his supporters contend his conviction is an example of the Orange County District Attorney’s Office’s “win-at-all-costs” mentality.
Ford launched his petition to free Clair on Change.org. He struck a chord.
People from across the nation have signed the online document – more than the signatures collected on another petition supporting two prison inmates featured on Netflix’s “Making a Murderer.”
Ford said Friday he plans to take the signatures supporting Clair’s release to Orange County District Attorney Tony Rackauckas next week.
Ford was unaware, until contacted Friday by a Register reporter, that Clair’s death sentence had been overturned in March.
The reason: During his trial, Clair’s defense attorney failed to present evidence that he was repeatedly raped behind bars as a teenager during his previous prison stint for purse snatching. Such evidence may have swayed the jury toward compassion, the appellate court found.
Julian Bailey, Clair’s attorney at the time and now an Orange County Superior Court judge, conceded in court documents he could have done a better job on what was his first death penalty case.
“I did not adequately prepare for a penalty phase in this case because of a combination of inexperience and overconfidence,” Bailey said, according to the appellate ruling. “I did not ask the right questions of [Clair], his family, myself or my investigator to obtain an adequate understanding of my client and his case.”
Bailey could not be reached for comment Friday.
The appeals court called Bailey’s performance during the trial’s penalty phase “subpar,” “virtually without value” and “woefully incompetent.” Justices noted that Bailey barely looked at Clair’s prison history and interviewed him only once.
Clair’s life is no longer on the line. But supporters insist he is innocent. They contend he deserves to be exonerated in the killing of 25-year-old Linda Faye Rodgers because of DNA evidence found at the crime scene that belongs to someone other than Clair.
“He didn’t commit the crime, so he shouldn’t be in jail for life,” Ford said. “The D.A. doesn’t have a case. Period. They don’t want to go back to court and lose.”
For more than seven years, Rackauckas has known that DNA evidence taken from Rodger’s body does not belong to Clair. Prosecutors maintain there is ample evidence of his guilt.
They have declined to discuss the nature of the disputed evidence and, backed by a Superior Court judge, declined to release to the defense the identity of the person tied to the DNA evidence. Prosecutors on Friday said they could not talk further about the case because of a gag order by the 9th U.S. Circuit Court of Appeals.
The refusal to exonerate Clair has triggered a storm of protests on social media since November.
“I’m signing in this matter because DNA evidence should not in any case be held back,” wrote Robert Harol of Tustin at change.org. “There are too many people in jail because of this type of corruption in the justice system.”
“The desire of prosecutors to win rather than serve justice is destroying our legal system,” wrote Efrem Lipkin of Berkeley. “Evidence is hidden, plea bargains driven by threats of long sentences, destroy(ing) innocent lives.”
For 28 years, Clair has been imprisoned on a case filled with contradictory evidence.
Rodgers was strangled with her own clothing, stabbed and bashed on the head in the Santa Ana house where she worked. She died from strangulation.
Her 5-year-old daughter and four other children were in an adjacent room when the killer struck, splattering blood on the walls and floor with a knife taken from the kitchen.
One of the children, age 5, told police the culprit was a “white man” and had been in the house earlier, demanding money. Clair is black. The child, years later, recanted at the behest of his mother’s husband, who was a member of a white motorcycle gang, according to appeals court records and news reports.
The appeals court opinion noted the victim had threatened to call police on her employer for allegedly selling drugs from the house.
About a week before the killing, the house was burglarized, with $450 stolen from a coffee can.
Clair, a transient, had been living next door to the victim in an abandoned house. He had been arrested on suspicion of the burglary and released a few hours before the killing.
Prosecutors based the murder case, in part, on the testimony of Clair’s ex-girlfriend, who said he showed her items taken from the house during the killing. She also wore a wire, which recorded Clair equivocating when asked why he killed Rodgers. He didn’t deny the murder but falls short of confessing, according to the recording.
“They can run hair fibers until the cows come home; they’re not going to walk away from that tape,” former prosecutor Mike Jacobs said in a 2008 interview.
Clair can be heard on the recording saying: “They can’t prove a … thing, not unless you open your … mouth.”
When the woman said she saw blood on him the night of the killing, he replied, “Ain’t on me no more.” The girlfriend later recanted some of her statements.
Contact the writer: tsaavedra@ocregister.com
