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U.S. Judge Throws Out Death Penalty for Rapist-Killer : Courts: John G. Davies rules that Ventura jurist should have allowed psychologist’s testimony in sentencing of Robert McClain, who’s spent 14 years on Death Row.

SPECIAL TO THE TIMES

A federal judge has thrown out the death penalty for a convicted Ventura County killer and rapist who spent the last 14 years on Death Row.

U.S. District Judge John G. Davies said Friday that a Ventura judge should have allowed a prison psychologist to testify during the 1981 sentencing of Robert McClain. The psychologist would have testified that McClain did not pose a threat to prison guards and could have adjusted to prison life, his attorneys said.

“This is obviously very frustrating for us,” Supervising Deputy Dist. Atty. Richard Holmes said. Joined by lawyers from the state attorney general’s office, Holmes had argued before Davies that the psychologist was not likely to have altered the jury’s decision to condemn McClain to death.

McClain was convicted of the 1979 rape and murder of 20-year-old Joni Donnell Kelley.

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Davies rejected 27 other arguments McClain’s attorneys offered on appeal, which claimed everything from the death penalty being unconstitutional to an inadequate trial defense.

“I’m kind of disappointed that we didn’t get a guilt reversal,” said Andy Love, an attorney with the nonprofit California Appellate Project who helped with McClain’s appeal. Love argued that the jury should have heard that two jail informants and a co-defendant who testified in the case worked for the government.

Love said that if the state attorney general appeals the one Davies ruling that throws out the death penalty, then defense attorneys would appeal several of the 27 claims Davies denied.

The state is expected to appeal to the U.S. 9th Circuit Court of Appeals, but officials with the attorney general’s office did not return telephone calls Monday.

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If the federal appeals court upholds Davies’ decision, prosecutors could then appeal to the U.S. Supreme Court. If the high court refuses to hear the case, which nearly always happens, then Ventura County Dist. Atty. Michael D. Bradbury would have to decide whether to seek a new trial.

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Prosecutors said Monday that they would seek a new trial if necessary. But it could take years to get to that point.

The California Supreme Court affirmed McClain’s death penalty in 1988, and the U.S. Supreme Court refused to hear the case in 1989.

Lawyers started arguing the appeal before Davies in April, 1993, and finished nearly a year later.

“We were in there at the same time the Rodney King [federal] case was being heard,” Holmes said.

“I am no anti-death penalty crusader,” said McClain’s attorney, Robin Shapiro. “But it has to be done right. And to do it right, to make sure people have gotten a fair trial, is a very, very expensive thing.”

Davies said in his 162-page ruling that a 1986 U.S. Supreme Court decision holds that the defense in a capital case must be allowed to introduce evidence of how the convicted killer is expected to behave in prison if given a life sentence instead of death.

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Ventura County Superior Court Judge Lawrence Storch barred such testimony in 1981 based on capital murder law at that time, Holmes said.

Bradbury successfully forced Storch from hearing criminal cases last year after accusing the jurist of being too lenient. Storch is the most senior judge on the bench in Ventura County, appointed to the Superior Court in 1977 by then-Gov. Edmund G. (Jerry) Brown Jr..

McClain, now 66, was sentenced to die for raping and fatally shooting Kelley and dumping her body in a trash can near Santa Paula. He then drove to Solano County, where McClain, his nephew and a third man kidnaped, raped and slit the throat of a 31-year-old woman. McClain was on parole at the time for sexually assaulting two 11-year-old girls.

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McClain was given a life sentence for the Solano County murder, but still maintains his innocence.

McClain is one of nine men sent to Death Row by Ventura County judges since California reinstated capital punishment in 1978. He is the first to have his sentence thrown out and one of only six in the state to win such a federal appeal. More than 400 people are on California’s Death Row.


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