Appeals court secretly overturns penalty for Southern California man who spent nearly 3 decades on death row



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SANTA ANA, California — A federal appeals court secretly overturned the death penalty for a Southern California man who has spent nearly three decades on death row and is the subject of an online petition to free him.

Kenneth Clair was convicted for the 1984 murder of a babysitter in Santa Ana and sentenced to death in 1987. In March, the 9th U.S. Circuit Court of Appeals upheld his conviction but overturned his death penalty, citing incompetence by his defense attorney, the Orange County Register (http://bit.ly/22S7NjM) reported this week.

On Friday, Orange County prosecutors said they wouldn't challenge the decision or retry the penalty phase of the case, meaning Clair now will serve a sentence of life without possibility of parole.

"We made this decision months ago in consultation with the state attorney general's office," Senior Deputy District Attorney Scott Simmons told the paper, citing the age of the case and difficulty in locating witnesses.

The three-judge panel sealed the record of the decision because of concerns that Clair, who is at San Quentin State Prison, might be attacked in prison because of his history, the paper said.

Clair was convicted of killing Linda Faye Rodgers, 25, in the Santa Ana house where she was a live-in babysitter. Rodgers, who had cerebral palsy, was sexually assaulted, tied up and gagged, stabbed in the neck and back with a kitchen knife, beaten on the head with a pipe and strangled with her own clothing.

Rodgers' young daughter and four other children were in the home during the attack.

Clair, who had an armed robbery conviction in Louisiana and had recently spent six years in California prison for purse snatching, was living at the time in an abandoned house next door.

He had been arrested on suspicion of stealing $450 from Rodgers' home a week earlier and was released by police only hours before the killing.

In overturning the death penalty, the appellate panel said Clair's attorney provide a "woefully incompetent" defense, interviewing him only once. The panel said his attorney failed to present evidence that Clair was repeatedly raped while in prison, which might have swayed the jury's compassion.

Julian Bailey, now an Orange County Superior Court judge, conceded in court documents that he failed to prepare properly for the penalty phase in his first death penalty case "because of a combination of inexperience and overconfidence," according to the appellate ruling.

The court also noted conflicting DNA evidence uncovered since his trial. In 2008, prosecutors said tests they ordered indicated that Clair wasn't the source of male DNA found on the victim's body and a glove.

C. J. Ford, a private investigator hired by Clair, has argued for Clair's innocence for more than a decade. In November, he started an online petition that has drawn 152,000 signatures. It calls on prosecutors to turn over the DAN evidence to the defense.

Ford plans to take the petition to District Attorney Tony Rackauckas, he said Friday.

"He didn't commit the crime, so he shouldn't be in jail for life," Ford said. "The DA doesn't have a case. Period. They don't want to go back to court and lose."

A message left for John Grele, who led Clair's defense team at the time the DNA evidence was tested, wasn't immediately returned Saturday.

Prosecutors and Bailey, Clair's former defense lawyer, have said there was plenty of circumstantial evidence tying him to the killing.

Clair's former girlfriend, Pauline Flores, told police she saw him with jewelry and other items that Rodgers' roommates reported missing after the killing — although she later recanted much of her testimony.

She also had a recorded conversation with Clair in which she repeatedly tried to get him to confess to killing Rodgers.

At one point, Clair said: "They can't prove a ... thing, not unless you open your ... mouth."

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