Fairness says pay prisoner for his 18 years

The state’s program for compensating people wrongly convicted and sent to prison has specific legal elements, but it mostly appeals to our sense of fair play.

That is, if you did time in the state pen for a crime you didn’t commit, you get paid for what you lost. That compensation has to come in the form of cold, hard cash, because there’s no way to repay the cold, hard years you’ll never get back.

This is no place for technicalities -- not when it comes to a guy who was doing life without parole for murder. This is no place to be working an angle.

So I’m trying to see how a state hearing officer isn’t working an angle in ruling against DeWayne McKinney’s claim for roughly $700,000 in compensation for the 18 years he served in the slaying of a Burger King employee in Orange during a robbery in December 1980.

McKinney was released in January 2000 after the Orange County district attorney’s office decided not to oppose a public defenders’ motion to let him out. At the time, Dist. Atty. Tony Rackauckas had concluded that he no longer was convinced of McKinney’s guilt. When McKinney appeared at a hearing this year to ask for the monetary compensation, Rackauckas testified, “I think it’s likely he didn’t commit the murder.”

He couldn’t know that with certainty, but said he trusted the findings of two experienced investigators whom he’d assigned to review the case in 1999. The McKinney file wasn’t just another case to cross Rackauckas’ desk: As a deputy district attorney in 1982, he’d prosecuted McKinney and asked for the death penalty after he got the conviction.

Fast-forward to 2007. You couldn’t blame McKinney for thinking that, if the man who in 1982 wanted him executed no longer believed in his guilt, he had a pretty good chance of convincing the state he was entitled to compensation for his 6,570 days behind bars.

Last week, hearing officer Kyle Hedum disabused McKinney of that notion. Saying that McKinney hadn’t proved his innocence at the hearing, Hedum recommended that the state pay him nothing. That recommendation is expected to be accepted by the three-member panel that makes the final decison next month.

And how does Hedum know McKinney wasn’t unfairly incarcerated?

He doesn’t.

He can’t. Any more than Rackauckas can know for a fact that McKinney is innocent. But at least Rackauckas honestly answered that way when asked during his testimony at the hearing.

For his part, Hedum picked and chose elements of the McKinney file and determined that the “preponderance” of evidence didn’t support his claim. The evidence that convicted McKinney in 1981 and 1982 consisted almost entirely of eyewitness testimony from the four surviving employees of the Burger King. Other elements were weaved into the fabric of the case, but none would have held up without the eyewitness identifications.

Two of the four subsequently changed their minds about McKinney’s guilt. The other two held firm, and Hedum found their certainty more credible than the others’ doubts. That, even though one of the unshakable witnesses couldn’t pick McKinney from a lineup and didn’t even look at a photo lineup. Rather, he identified him in court.

The other firm eyewitness saw the robber-killer for seven seconds, Hedum wrote in his report. But when it came to testimony that indicated the robber was anywhere from 1 1/2 to 4 1/2 inches taller than McKinney, Hedum explained it this way: “. . . it is likely that the eyewitnesses were more focused on the weapon than on the height of the person holding the weapon.”

More focused on the weapon than the height? You bet. That’s pretty standard stuff from experts on eyewitness testimony. But is it lost on Mr. Hedum that someone more focused on a weapon than height might also have been more focused on weapon than what the guy actually looked like?

I’m not an advocate for McKinney’s guilt or innocence. I don’t have an opinion on whether he did it or not.

But when the district attorney says he no longer would prosecute the case, agrees to his release and thinks he’s probably innocent, that’s persuasive.

Keep in mind Rackauckas could have testified he still thought McKinney was guilty.

To rule against McKinney, Hedum said he didn’t believe the story that emerged before McKinney’s release that someone else committed the slaying.

He believed the witnesses who remained convinced and didn’t believe the ones who changed their minds.

And even though .22-caliber bullets in the home where McKinney lived were different from the ones used in the slaying, Hedum concluded that their mere presence indicated he had a .22-caliber pistol that could have been used in the slaying.

McKinney’s attorney, Jeffrey Rawitch, assumes Hedum’s finding will prevail. If so, he says, the program for compensating wrongly convicted people is deeply flawed. “It looks like they’re only willing to accept a DNA case,” he says. And there is none. “We’ve given them everything short of that.”

McKinney has made a nice living since his release and isn’t strapped for cash. But there’s something patently unfair about doing 18 years in the joint for a murder that the D.A. now wouldn’t even take to trial.

If McKinney was guilty in 1982, he should be guilty today. If he’s not guilty today, he deserves to be paid back.

The state attorney general’s office says the evidence “certainly seems to suggest” McKinney was the killer. Hedum can’t possibly know the truth.

But when in doubt, wouldn’t basic fair play compel the state to give the money to the guy who gave it 18 years of his life?

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Dana Parsons’ column appears Tuesdays, Thursdays and Saturdays. He can be reached at (714) 966-7821 or at dana.parsons@latimes.com. An archive of his recent columns is at www.latimes.com/parsons.