Murder Trial Poses Tangled Test for Judge : Courts: James M. McNally is hearing the Kevin Kolodziej case without a jury. Tragedy and illness have tempered him.

Judge James M. McNally is on the hot seat.

He alone must determine the outcome of a highly publicized murder case--the fatal stabbing of a 90-year-old Ventura woman by a transient with a history of mental illness.

Attorneys for Kevin Kolodziej admit that he killed Velasta Johnson, but they say he is not guilty by reason of insanity. The prosecutor insists that Kolodziej was sane and should be convicted of first-degree murder.

Both sides said they decided to let McNally hear the case without a jury because they think he will be fair--an assessment shared by others who know the judge.

“He’s going to call it like he sees it,” said Steven Z. Perren, presiding judge of Ventura County Superior Court. “He’ll hew to the law.”

George Eskin, a longtime Ventura defense attorney, agreed. “I don’t think either side should be concerned that he would be influenced by political considerations.”

The Kolodziej verdict, expected this week, promises to be one of McNally’s most controversial decisions since former Gov. Edmund G. (Jerry) Brown Jr. appointed him to the Superior Court in 1982.

If McNally convicts Kolodziej of first-degree murder, he will disappoint the county’s vocal community of mental health advocates, some of whom are attending the trial. If he acquits the defendant, convicts him of a lesser charge or rules that he was insane, the judge risks being vilified as soft on criminals.

“It puts a tremendous amount of pressure on him,” said Harrison M. Dunham, the dean of Ventura County’s defense attorneys.

“It’s deadly,” said Richard W. Hanawalt, a Ventura defense attorney who has known McNally for more than 20 years. “The judge can’t win.”

The man facing this dilemma is a 57-year-old Iowa native who considers himself a conservative on fiscal matters but a liberal when it comes to upholding constitutional rights. In the Kolodziej case, for example, McNally threw out most of the defendant’s confession, saying police had obtained it illegally.

Several attorneys agreed with this assessment by Deputy Dist. Atty. Terence J. Kilbride:

“I think McNally truly tries to follow the law, and he keeps fairly current on what it is.”

But Kilbride, like a few other prosecutors, said McNally is “not what you would call really tough on criminals. If I had to put a label on him, he’s probably more liberal than most of the judges, and I would say our Superior Court is a very liberal bench.”

Before he assumed the bench, McNally was one of Ventura County’s most successful defense attorneys and an activist in Democratic politics. He has worked in all three branches of government: first as a federal prosecutor, then as an Iowa state senator, and now as a judge.

Friends say McNally’s outlook has also been molded by tragic experiences in his personal life--including polio as a teen-ager and the loss of his first wife in an automobile crash.

“A lot of people we select to be judges . . . have never been kicked around by life,” said Edward A. Whipple, McNally’s former law partner. “McNally has been kicked around by life.”

James Michael McNally also has enjoyed considerable success in the years since his birth on a farm near Sioux City, Iowa.

“It was a 40-acre patch of yellow clay hills,” McNally recalled in a recent interview. “You couldn’t raise a dust storm on it.”

The youngest of five children, he attended parochial schools. In his senior year of high school, polio struck.

“You go through a lot of trauma with that kind of thing,” said McNally, who has walked with crutches ever since. “You go into the whole issue of what it means to be a man.”

After attending St. Ambrose College, a liberal arts school in Davenport, Iowa, he entered law school at the University of South Dakota. Full of what he calls “youthful idealism,” he worked on John F. Kennedy’s presidential campaign.

That experience helped him land an appointment as assistant U. S. attorney for northern Iowa after he obtained his law degree. In 1964, he ran for office himself, winning a seat in the Iowa Senate.

But the low pay discouraged him and he served only one term before devoting full time to practicing law.

In 1968, tragedy struck again. His car was rear-ended on a freeway at high speed, causing a fiery crash that killed his wife and injured McNally.

“Miraculously, our little girl Mary was not hurt at all,” McNally said.

But the loss of his wife was devastating.

“It takes a long time to get over something like that,” he said. “You’re just numb for several years. You just numb out.”

His wife’s death was the catalyst for his move to Ventura County, McNally said. He had long considered leaving the Midwest because the icy winters made walking with crutches difficult.

“This was a real turning point,” said McNally, who eventually remarried. “I was starting over anyway, and I decided to do it.”

He found a job with the law firm of Rep. Robert J. Lagomarsino (R-Ventura), then started a separate practice. Although he handled some plaintiffs’ personal-injury cases, he made his reputation in criminal defense work.

“Juries adored the man,” recalled Deputy Dist. Atty. Carol J. Nelson, who tried several cases against McNally. “He was very courteous, but tenacious.”

Hanawalt said McNally exuded “a Raymond Burr sense of sincerity.”

Deputy Dist. Atty. Richard E. Holmes said McNally’s forte was cross-examination.

“He wasn’t one of those guys who tries to attack a witness directly,” Holmes said. “He would use a friendly approach. He would lead them down the primrose path and then leave them spinning. He was very shrewd.”

In one celebrated case, McNally defended a drunk driver accused of killing five people in a crash in Ventura. He persuaded the judge to spare the man a prison sentence.

After practicing for 10 years in Ventura County courts, trial work began to lose its appeal, McNally said. “I felt I was in a rut.”

He had gotten involved in county politics as a member of the Democratic Party’s Central Committee. Those connections--as well as his friendship with Charles T. Manatt, the Democratic national chairman at the time, and other Democratic leaders--helped him win appointment directly to the Superior Court without having served on the Municipal Court.

In his first year as a judge, he issued one of the most controversial decisions of his career when he acquitted a woman accused of running a methamphetamine lab in the Hidden Valley area. McNally said the prosecutor had not proved that the woman knew that others had set up the illegal drug operation on her property.

After a decade on the bench, McNally has earned a reputation for being even-tempered and evenhanded.

“He seems to have a uniformly nice disposition,” Public Defender Kenneth I. Clayman said.

“He’s a very even-tempered, very pleasant person,” said J. Roger Myers, president of the Ventura County Bar Assn.

In a May poll of bar association members, McNally received an overall score of 7.48 on a scale of 10, putting him almost exactly in the middle of Superior Court judges. The survey rated the judges on demeanor, knowledge of the law, impartiality and integrity.

“He’s one of the real gentlemen around here,” said Ken W. Riley, a Municipal Court judge who will take a seat on the Superior Court in January.

“I’ve never seen an individual so well respected by every branch of the system,” said Joseph D. O’Neill, an Oxnard defense attorney.

McNally said his life experiences contributed to the serenity that he brings to his courtroom. “There aren’t too many big deals in my life anymore,” he said. “What some people get very uptight about--lawyers being late or people snapping at each other--I just don’t respond to.”

Several attorneys said the only raps on McNally are that he always starts court late and can be slow. But they also praised him for doing his homework before making a ruling. As a result, appeal courts have overruled him only half a dozen times in the past 10 years.

McNally said he starts late because he spends a great deal of time preparing for a sentencing, which he calls the toughest part of being a judge.

“I use whatever time it takes,” he said. “When you’re talking about giving someone 25 or 30 years in the penitentiary, you should take some time figuring out what his background is.”

What pains him the most about the judicial system, he said, “is the perception that criminals get off on technicalities.”

“Technicality is a word for a legal right,” he said.

He said 95% of accused criminals plead guilty, and most of the rest are convicted at trial. So less than 2% are released, he said, often because police illegally obtained evidence.

McNally’s current six-year term expires in January, 1997, when he will be 62. He said he plans to seek another term, but is not interested in a higher judicial office.

“I’ve had all the titles in my life I’ll ever want,” he said. “This is a good job. It’s challenging. Sometimes it’s pretty hard. I’m where I want to be.”

Profile of Judge James M. McNally

Current assignment: Criminal courts

Age: 57

Appointed: Dec. 31, 1982 by Gov. Edmund G. (Jerry) Brown

Law school: University of South Dakota, 1961

Professional experiences: Assistant U. S. attorney (1962-64), Iowa state senator (1965-67), personal injury and criminal defense attorney (1967-82)

Hometown: Sioux City, Iowa

Current residence: Ojai

Personal data: Married to Mary McNally; 3 grown children, 5 grandchildren

Hobbies: Painting, reading