Prosecutors to Set Retrial Date Today for McKinzie

When the jury deadlocked last month on whether Oxnard killer Kenneth McKinzie should die for his crimes, the judge gave prosecutors two weeks to decide whether to retry the penalty phase of the case.

It took them about an hour.

Deputy Dist. Atty. Donald Glynn announced he would present the case to a new jury next year--the first time Ventura County prosecutors have retried the penalty phase of a case after a hung jury. Today, prosecutors will return to court to set a new trial date.

While prosecutors say the jury’s 11-1 deadlock in favor of death demands a retrial, the unprecedented decision has infuriated members of the county’s defense bar, who say the quick decision illustrates a deeper problem with the way the district attorney’s office decides who should get the death penalty and who should not.

Defense attorneys have long argued that those decisions, weighed by a committee of top prosecutors and presided over by Dist. Atty. Michael D. Bradbury, are too subjective and fraught with politics and racial bias.

“It reinforces my position that the local district attorney should not have the right to decide who should live and who should die,” said James M. Farley, a veteran defense attorney who has handled several capital cases. “It’s more authority than anyone in public office holds.”

But prosecutors say decisions about life and death are not taken lightly, and each case is evaluated on its own unique set of circumstances. In the case of McKinzie, Glynn contends that seeking the death penalty for a second time is appropriate given the viciousness of the crime and the fact that 11 jurors voted in favor of it.

“A lot of jurors were sound in their decision that he absolutely should get the death penalty. That adds a lot of credibility to our decision to go forward,” Glynn said. “More importantly than that is the moral imperative of the case. What he did was horrendous.”

According to the prosecutors’ case, McKinzie, 39, attacked Ruth Avril outside her Oxnard home Dec. 22, 1995, and punched her more than 20 times during an attempted robbery. Avril, 73, fought back, but McKinzie wrestled her into the trunk of her car and drove her to a remote agricultural area of Oxnard, where he strangled her and threw her body into an irrigation ditch. It was later found by two surfers.

The jury took only two days to find McKinzie guilty of first-degree murder, kidnapping, carjacking and several counts of burglary. But the panel could not decide on the penalty.

Judge Vincent J. O’Neill twice ordered the jury to continue deliberation in hopes of breaking the deadlock. But the holdout juror refused to budge.

There have been two other recent cases in which prosecutors could have sought penalty retrials, but chose not to. The district attorney’s office decided not to retry Michael Dally, the 37-year-old grocery clerk convicted of murder for persuading his lover, Diana Haun, to fatally stab his wife. After finding Dally guilty, the jury hung 7 to 5 at the penalty phase.

After mulling the matter for two weeks, prosecutors settled for a life prison term in Dally’s case. Haun got the same sentence.

Prosecutor Glynn said there are important differences between the Dally and McKinzie cases. “I don’t think anybody thought Dally was the actual killer,” he said. “And second, you have a fairly even split [on the jury].” That meant it would have been more difficult to persuade a second jury to vote for death.

Two months ago, prosecutors announced they would not retry Robert McLain, whose 1981 death sentence was overturned by a federal appeals court.

McLain was sentenced to death for raping and fatally shooting hitchhiker Joni Donnell Kelley. Her body was found in a trash can at a Santa Paula park in November 1979.

McLain was the second Ventura County man to receive a death sentence after capital punishment was reinstated in California in 1978.

But in January, a federal appeals court overturned the death sentence, saying the trial judge improperly instructed the jury.

Deputy Dist. Atty. Pete Kossoris, who originally prosecuted McLain, said prosecutors decided not to retry the penalty phase because the McLain, 58, is in poor mental and physical health.

“We could have put the case together,” he said, “but there are some considerations in a case like that.”

Kossoris said the key difference he sees between the McKinzie case and the others is the nature of the jury’s split decision. In a capital case, he said, “I don’t think we’ve ever had an 11-to-1 hanger.”

Deputy public defender Neil Quinn takes a different view.

“One thing that leaps out at you,” Quinn said of the McKinzie case, “is you have a black defendant and a white victim that he killed. You can’t ignore that as a factor that drives these types of decisions.”

Last year, Quinn accused prosecutors of racial and gender bias in their decision to seek the death penalty against Haun, who was his client.

In a massive brief, Quinn asserted that prosecutors are more likely to seek the death penalty in cases where the victim is a white woman--as in Haun’s case. He also argued that white prosecutors filing death penalty cases identify more with white victims.

Quinn included statistics that showed in eight of nine death-penalty cases prosecuted before 1996 the victims were white. Most were women.

Since 1996, the district attorney has sought the death penalty in five killings involving three white women, a Latino police officer and a 20-year-old Redondo Beach man who was tortured and burned alive.

Quinn’s research echoed national studies on the issue. Last year, the American Bar Assn. released a resolution calling on states to stop seeking the death penalty until problems, including “long-standing patterns of racial discrimination,” are addressed.

“The people in the power-making decision are middle-class males, white, and . . . their mothers and wives” are also white, Quinn said last week. “They feel a natural protection. It’s very easy to elevate the class and status of the victim, and view the defendant as subhuman.”

McKinzie’s attorney, Willard Wiksell, does not consider race to be a factor in the decision to seek the death penalty against his client.

“I don’t have any reason to believe that race plays a factor in the district attorney’s judgment,” he said. “I don’t see that as a compelling argument, and I certainly would be looking for that.”

Prosecutors say they’ve never chosen to seek the death penalty based on race or ethnicity of the victim or the accused. Each case, the say, is evaluated on the basis of its unique facts and circumstances.

Glynn adds that the cost and difficulty of trying a case are also not considered. “I think that when Mike Bradbury makes those decisions, he strictly looks at what is just and how egregious the crime is.”

The debate over the McKinzie case has refocused attention on the death penalty and the willingness of jurors to apply it in Ventura County. Despite its reputation as a conservative law-and-order area, the county doesn’t routinely reward prosecutors with death penalty verdicts.

Since 1990, prosecutors have reviewed 20 cases in which they could have sought the death penalty. They asked for execution in 10 cases. Of those, half ended in death sentences. Four other juries rejected death or deadlocked in the penalty phase, and one jury deadlocked in the guilt phase of the trial. That case was retried before a judge who found Daniel Tuffree of Simi Valley guilty of second-degree murder in the death of a police officer.

The retrial of McKinzie is expected to occur next spring. Wiksell still holds out hope that prosecutors will put the brakes on the process and come back with a decision in January.

“All we are asking for is a meaningful reflection,” he said. With Dally and McLain, “they certainly sat down and thought about it, weighed the pros and cons. They didn’t do that with Mr. McKinzie.”