State officials said Wednesday they will ask a federal appeals court to put Robert Cruz McClain back on Death Row.
A federal judge last week threw out the convicted rapist and murderer’s death sentence and ordered Ventura County to set a new penalty-phase trial within 90 days or allow McClain to live the rest of his life in prison.
Prosecutors said they will seek another sentence of death if the state’s appeal fails.
“Nothing has changed,” said Ventura County Deputy Dist. Atty. Michael Frawley. “It was the appropriate sentence then, and it is the appropriate sentence now.”
McClain, making his first foray outside the walls of San Quentin Prison in more than 14 years, appeared in Ventura County Superior Court on Wednesday to have a trial date scheduled.
But a judge delayed scheduling a new penalty phase for a week while attorneys with the state attorney general’s office file their appeal and ask the U.S. 9th Circuit Court of Appeals for a stay to stop enforcement of the order until the court rules.
McClain’s attorneys plan to join with the attorney general in asking for the stay as they prepare their own appeal for a new trial.
McClain’s attorneys had asked U.S. District Court Judge John G. Davies to overturn the 1981 conviction because the jury was not allowed to hear that two jailhouse informants and McClain’s co-defendants were helping the government’s case in exchange for lesser punishment in their respective criminal cases.
Davies denied that argument, which defense attorneys plan to appeal.
But Davies agreed Friday to throw out McClain’s death sentence because a prison psychologist was forbidden from testifying during the penalty phase of his 1981 trial.
Ventura County prosecutors, judges and public defenders, alike, have spent the past three days thumbing through a voluminous court file 14 years old to figure out what to do next.
If the federal appeals court grants the stay, McClain will be returned to San Quentin Prison, and Ventura County will not have to schedule a new guilt phase for McClain until the appeal is heard.
If the stay is denied, county officials will have to schedule a new penalty phase of the trial within 90 days.
Prosectors said they would have to essentially put on a whole new trial if a new guilt phase is required so the jury can hear about the murder and rape of 20-year-old Joni Donnell Kelley in 1979.
McClain sat in a wheelchair during his brief appearance Wednesday before Superior Court Judge Charles W. Campbell.
The overweight 55-year-old sat, his hair closely cropped, head slumped forward and eyes closed. His attorney said McClain needs medication for knee and back pain and sunglasses because his eyes are sensitive to light.
Campbell ordered the Ventura County Jail doctor to examine McClain.
McClain was convicted in 1971 of raping and molesting two 11-year-old Ventura girls while sexually assaulting a third. He was paroled seven years later and returned to Ventura in November, 1979, with intent to kill one of the girls he was accused of raping, prosecutors said.
McClain, accompanied by his 16-year-old nephew and another teen-ager, attempted to break into the girl’s apartment before being scared away, prosecutors said. After they left, they picked up Kelley hitchhiking.
The threesome were also convicted of kidnaping, raping and killing another woman in Solano County shortly after murdering Kelley.