Prosecutors Drop Effort for Death of Killer-Rapist

After two trials that involved hung juries, prosecutors announced Tuesday that they will stop seeking a death verdict against 31-year-old Andrew McCarter, who was convicted two weeks ago of the 1986 rape and murder of a Fullerton waitress.

The prosecution’s decision leaves McCarter with an automatic sentence of life in prison without parole.

McCarter’s first trial ended in a mistrial last year after three of 12 jurors voted to acquit him of murder charges.

A second jury agreed on a first-degree murder verdict. But after two days of deliberation during the penalty phase of his trial, jurors informed Superior Court Judge Robert R. Fitzgerald on Tuesday afternoon that they were hopelessly deadlocked on the death issue. Five jurors had held out for the lesser penalty of life without parole.

McCarter was accused of the June 21, 1986, strangulation death of Julie Fenton, a part-time waitress at Elmer’s Place in Fullerton who also worked at a health spa. She had graduated from Cal State Fullerton the year before.

McCarter’s attorney, George A. Peters, said outside the courtroom that he was relieved at the mistrial Tuesday in the penalty phase, which led prosecutors to decide against further attempts at a death verdict.

“I have gotten to know Andy during all this, and I simply did not see him as someone who deserved a death penalty,” Peters said.

Peters put on several witnesses during the penalty phase, including McCarter’s mother, some of his closest friends, and several students in McCarter’s karate class as character witnesses for the defendant.

The victim was found dead in her apartment several hours after being seen with McCarter at Elmer’s as her shift ended. Several witnesses saw a red truck similar to one that McCarter used in his work as a roofer parked outside her apartment that night.

Also, a key witness against McCarter was his own brother, Michael McCarter. He told jurors at both trials that his brother had confessed to him that he had killed Julie Fenton.

Because evidence of McCarter’s violent past was admissible only during a penalty phase, the first jury did not hear testimony from McCarter’s two ex-wives, one from Arkansas, the other from Texas. Both testified that after they had separated from McCarter he returned to their homes, beat them and raped them.

Four other women--all Orange County residents who met McCarter after he moved here from Texas about a year before the killing--testified that McCarter made forceful sexual advances toward them.