Defense to Challenge McCartin : New Judge Is Named in Kraft Murder Case

Superior Court Judge Donald A. McCartin, a veteran in capital cases, was assigned Friday as the new judge in the Randy Steven Kraft murder trial, a case involving possibly 37 victims and one that already has been delayed nearly five years.

But the Kraft attorneys, angry at the prosecution’s rejection of Judge Jean H. Rheinheimer as the new judge, say they are “looking at several legal options” before accepting McCartin’s appointment.

Rheinheimer and McCartin were among three judges suggested by former Presiding Judge Harmon G. Scoville to replace Judge James K. Turner, whose emergency heart-bypass surgery in December forced him to step down as the Kraft trial judge. Scoville appointed Rheinheimer after defense attorneys encouraged her selection.

Prosecution Objection

But prosecutors this week rejected Rheinheimer, forcing new Presiding Judge Phillip E. Cox to appoint another judge. He selected McCartin.

Each side has one veto. The Kraft defense team--before his present attorneys joined the case--had already rejected Superior Court Judge Robert R. Fitzgerald.

“The prosecution has already said that any of the three (Scoville nominees) would be a fine judge; now they pull this,” said Kraft attorney C. Thomas McDonald. “They’re talking out of both sides of their mouth.”

Kraft’s attorneys refused to say what legal options they were studying .

Kraft, now 42, was arrested May 14, 1983, and is charged with 16 Orange County murders. But prosecutors have formally accused him of 21 other murders--including six in Oregon and two in Michigan--which they want to use as evidence in both the guilt and penalty phases of the trial. All of the victims were young men, most between 18 and 25. Most were victims of sexual assault.

Kraft’s lawyers, who have won continuous delays over prosecution objections, have argued that they need more time to fully investigate all 37 murders.

Judge Cox on Friday set a new Kraft trial date of April 1, 1988. But the trial is not likely to begin nearly that soon, court observers say.

For one thing, Judge Turner has already invested nearly five months in a pretrial search-warrant hearing in the Kraft case. Cox wants him to finish that hearing to ensure that it does not have to be done over from the start. Yet Turner is not scheduled to return until April, and that hearing has several weeks to go.

McCartin has scheduled a meeting with the attorneys in the case for Thursday to see what other pretrial issues can be resolved while Turner is away.

Deputy Dist. Atty. James P. Cloninger said prosecutors are pleased with McCartin.

“He is a good judge, and he likes to move things along expeditiously,” Cloninger said. “That’s what this case needs.”

Vetoing a judge, known as “papering,” is common in major felony cases. But Kraft attorneys argue that, under the law, lawyers cannot reject a judge unless that judge may prejudice their case.

Cloninger declined to discuss why prosecutors rejected Rheinheimer, whom he described as “a good judge.”

“It’s not an easy decision,” Cloninger said. “You have to do what you think is best.”

If McCartin becomes the permanent Kraft judge, he will have to decide numerous other pretrial issues before the trial begins. For example, the defense wants 16 separate trials, one for each of the 16 charges. Prosecutors adamantly oppose more than one trial.