Orange County Prosecutors Drop Death Penalty in Misconduct-Plagued Case, May Avoid Surrendering DNA Evidence

Kenneth Clair (pic­tured), whose California death sen­tence was over­turned last year, says he is inno­cent and that the Orange County District Attorney’s office is with­hold­ing DNA evi­dence that would prove it. His pros­e­cu­tors have declared that they will not seek the death penal­ty against Clair in a new sen­tenc­ing hear­ing, and in so doing may avoid pre­tri­al dis­cov­ery pro­ceed­ings in which they could have been required to turn over the poten­tial­ly exclu­pa­to­ry DNA evi­dence to the defense. 

Clair was sen­tenced to death for the 1984 rape and mur­der of Linda Faye Rodgers. Two chil­dren who were eye­wit­ness­es told first respon­ders that the per­pe­tra­tor was a white man, but police instead charged Clair, a black man, who had had been arrest­ed for tres­pass­ing at the Rodgers’ home sev­er­al days before the mur­der. At that time, Rodgers’ young daugh­ter said that police ​“have the wrong man. That black man did­n’t do it.” 

Although the mur­der scene was cov­ered in blood, a woman who saw Clair short­ly after the crime observed noth­ing unusu­al in his appear­ance. In the three decades since his tri­al, wit­ness­es who tes­ti­fied for the pros­e­cu­tion have recant­ed, evi­dence emerged of an undis­closed deal the District Attorney’s Office made with one wit­ness for his tes­ti­mo­ny against Clair, and the U.S. Court of Appeals for the Ninth Circuit found that Clair’s lawyer had pro­vid­ed inef­fec­tive rep­re­sen­ta­tion in the penal­ty phase of his tri­al. The court over­turned Clair’s death sen­tence, but not his conviction. 

In 2008, DNA test­ing impli­cat­ed a man tied to a Fresno case, but District Attorney Tony Rackauckas has with­held the iden­ti­ty of that per­son, say­ing the man was too young in 1984 to have been the perpetrator. 

Clair told the OC Weekly in a recent inter­view, ​“I am an inno­cent man.… I’d bet $1 mil­lion, it’s a white per­son­’s [DNA], like what the kids told the first respon­ders.” Clair’s case is now before Superior Court Judge Thomas M. Goethals, who recent­ly banned the entire Orange County DA’s office from par­tic­i­pat­ing in a sep­a­rate death penal­ty case because of a his­to­ry of mis­con­duct involv­ing its repeat­ed fail­ures to dis­close the mis­use of prison infor­mants and the favor­able deals it had offered those infor­mants for their tes­ti­mo­ny against defendants.