Randy Steven Kraft’s lawyers revealed Wednesday that he wants to testify about five of the 16 murders with which he is charged, but whether Kraft will testify at all is unknown because the judge refused to restrict prosecutors in advance from questioning him about the other 11 cases.
“It’s a difficult dilemma,” said a disappointed C. Thomas McDonald, one of Kraft’s attorneys. “No decision has been made.”
Kraft’s attorneys asked Superior Court Judge Donald A. McCartin to listen privately--without prosecutors or the public present--to a “detailed offer of proof” about what Kraft would say on the witness stand. Afterward, the defense asked for a court order forbidding Deputy Dist. Atty. Bryan F. Brown from asking questions about any cases beyond those that Kraft would mention on direct examination by his attorneys.
Judge Refused to Hear Offer
But the judge refused to even hear their “offer of proof” in his chambers.
McCartin said he could not rule on whether to exclude questions about the other 11 cases until after he has heard Kraft testify. But the judge warned that Brown, the trial prosecutor, might be able to persuade the court to let him explore some of those other 11 slayings if he can show that they are tied to the five Kraft wants to talk about.
“I don’t think I can give you the comfort you might like to have,” McCartin told Kraft’s attorneys.
To McDonald, that response means that if he puts Kraft on the stand, the judge intends to allow Brown wide latitude.
Brown has argued in the past that the slaying cases are linked. For example, Brown has said 14 of the 16 are linked because they are alluded to on a coded list found in Kraft’s car. Many law enforcement officials believe that it is this list that Kraft’s attorneys want excluded from any cross-examination of their client.
Kraft’s attorneys argue that if he is forced to answer questions about any of the 11 cases he prefers not to discuss, it would violate his constitutional right against self-incrimination.
Kraft, now 44, is on trial in Santa Ana, accused of killing 16 men 18 to 25 years old, most of whom were sexually abused. If convicted, prosecutors plan to tie him to up to 45 slayings at a hearing on whether to impose the death penalty. Some legal experts call it the biggest murder case in the state’s history.
Kraft was arrested May 14, 1983, when two California Highway Patrol officers who stopped him for a traffic violation on Interstate 5 in the Mission Viejo area found a dead Marine--Terry Lee Gambrel, 25--in the front seat of Kraft’s car. The victim had been strangled, with a mark on his neck the same size as his own belt, found in the back seat.
After 9 weeks of defense testimony, Kraft’s attorneys have offered jurors no explanation for the bizarre circumstances of Gambrel’s death. Nor have they offered jurors much testimony about several pictures of other slaying victims, some in lewd positions that could have been posed in death, found in Kraft’s car and at his house.
Kraft’s attorneys would not reveal which are the five deaths about which Kraft is willing to testify.
Kraft attorney William J. Kopeny did not mention a specific number when he made his initial argument to the court. But after Deputy Dist. Atty. Thomas M. Goethals shot back at him in a lengthy rebuttal, Kopeny reluctantly revealed that the defense was talking about Kraft’s testimony in five deaths.
Kopeny argued that if Kraft had been granted separate trials on each of the deaths, he would have had the right to decide which charges he wanted to testify about.
“I’m asking the court to rule about constitutional rights,” Kopeny said. “Does the defendant have the right to defend himself on five of 16 murder trials, without the court ruling he has given up his constitutional right on the other 11 he is facing?”
Prosecutor Goethals argued that Kraft may not in fact be waiving his rights on those 11 slayings but that no one will know unless he takes the witness stand.
Judge McCartin did rule that if Kraft testifies, prosecutors would not be allowed to cross-examine him about the other 11 cases without first warning the court so a hearing could be held on that issue.
Kraft’s lawyers were not satisfied that that was enough of a guarantee.
Kraft, who took notes during the hearing, looked intently at the judge during his ruling but did not let disappointment show.
Prosecutors Goethals and Brown left the courtroom extremely pleased by the judge’s decision.
Kopeny left the courtroom saying “no comment” about whether Kraft would testify in light of the ruling. But earlier, Kopeny had said that if the judge did not issue an order at the hearing limiting cross-examination, “it will be a shame. It will deny Randy the right to put on an assertive defense. It will be a violation of his constitutional rights, and it will not be a fair trial.”
Goethals told the court that if Kraft decides not to testify in light of the judge’s ruling, then “that’s a tactical decision he has to make. . . . I don’t envy him having to make that decision.”
Goethals has said outside the courtroom that the prosecution is eager to have Kraft testify.
“We would like to hear what Kraft has to say,” Goethals said. “But we don’t think he should be allowed to just get up there and give a speech. If following the rules laid down in this state over the past 100 years means he will decide not to testify, that’s life. We can live with that.”
The defense is expect to present just a few more witnesses before either resting its case or putting Kraft on the stand. Once the defense rests, prosecutors are expected to have about a week’s worth of rebuttal witnesses.
After closing arguments, the case would then go to the jurors.
If Kraft is acquitted of all 16 slayings, he would be automatically held in several slayings in other jurisdictions where he has either been formally charged or is a suspect--including six in Oregon, two in Michigan and four in San Bernardino County.
If Kraft is convicted, his trial would move into a lengthy penalty phase. But the defense would be expected to request a delay before that phase could begin.