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What Does It Take To Get a Retrial?

Thursday, October 13, 2016 9:25
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When a jury sentenced Kenneth Clair to death in 1987 for the assault and murder of a 25-year-old nanny named Linda Faye Rodgers, the case appeared open-and-shut. Clair, a homeless man with a criminal record, a week earlier had burglarized the same house where the murder occurred. A secret recording appeared to capture statements from Clair amounting to a confession. A witness claimed to see blood on Clair’s hand the night of the murder.

But as the decades rolled by, many of the seemingly solid facts undergirding the case eroded, and new facts casting doubt onto Clair’s guilt have emerged. For instance, a 5-year-old eye witness to the crime told first responders that a white man killed “Aunt Linda.” Clair is black, and investigators administered tests that confirmed the young witness was indeed able to distinguish between races. Later, under the possible influence of his parents, the boy changed his story, and the jury never heard about any of it.

“On the one hand, he had his perception, his vision, telling him that this was a white male,” says Robert Shomer, a psychologist and eye witness expert who believes the jury should have heard the boy’s testimony. “And then he had adults in his life, important people–his mother and his mother’s boyfriend–who believed it was a black male… I believe that he incorporated the information from the adult witnesses.”

Brenda Garcia, a juror on the trial, told Reason TV that she considers the child’s statements to police to be important evidence.

“If I’d known that the child actually said that the person was white, that this child had actually seen the crime being committed, I think that would have affected my decision,” she says.

The witness who claimed to see blood on Clair’s hand the night of the murder was Pauline Flores, Clair’s on-again, off-again love interest. She was recovering from a serious head injury at the time of the murder that may have affected her ability to recount details from the time period, something confirmed by statements from her caretakers. And she in fact recanted her testimony years later and claimed that police manipulated her to get the answers they wanted. The jury never heard about these extenuating circumstances nor about the tumultuous and sometimes abusive nature of Clair and Flores’ relationship that might have influenced the nature of her testimony.

Flores also provided the recordings by wearing a wire at the behest of the police a couple months after the murder. She later admitted she did so in return for them taking care of an outstanding warrant and possibly a cash payment, facts never disclosed to the jury. There were several apparently damning statements that prosecutors played several times during the trial:

  • CLAIR: “They can’t prove a motherfucking thing, not unless you open your motherfucking mouth.”
  • CLAIR, in response to Flores stating that she had seen blood on him the night of the murder: “Ain’t on me no more.”
  • CLAIR, in response to Flores accusing him of murdering Rodgers: “Will you leave that alone, please? You don’t have to rub that in my motherfuckin’ soul.”
  • CLAIR: “Baby what you fail to realize, how the motherf*****s they gonna prove I was there? . . . There ain’t no motherf*****’ fingerprints, ain’t no f*****’ where in there, and ain’t no f*****’ body seen me go in there and leave out of there.”

Reason TV confronted Clair with several of these statements in the video interview with above. His explanation for most of them is that he is clumsily telling her that there’s no evidence because he didn’t commit the crime and that he’s also advising her not to talk to the cops, since she at one point tells him that they suspect her as an accessory. And Clair accurately notes that elsewhere in the recording he outright denies committing the murder. In post-conviction interviews, most jurors appear not to remember the denial.

But the bombshell discovery in this case came from a private investigator named C.J. Ford, who uncovered the fact that the county had secretly tested male DNA found in the victim and that this DNA did not match Kenneth Clair. In fact, no physical evidence placed Clair at the scene of the crime that night. The county will not release the name of the DNA match, citing privacy concerns and the fact that the matching individual would have been too young to have committed the crime. You can read the DA’s press release about that decision here. But Clair believes that an investigation of those results could lead police to the real killer, who could, for instance, be an older male relative who shares the same DNA marker, which occurs in about 1 in 700 males, much as happened in the notorious “Grim Sleeper” case.

Attorneys for Clair later tracked down jurors in the case and asked them if their verdict would’ve have been different if they had known about the eye witness and the DNA evidence, and several said they would’ve been unable to vote “guilty.” Earlier this year, the 9th U.S. Circuit Court of Appeals overturned Clair’s death sentence and placed the deliberations under seal. He faces resentencing later this month.

Reason TV, which has produced two previous videos about the evidentiary issues in this case, sat down with Clair in Orange County’s Theo Lacy jail to talk about the case, confront Clair with the audio recordings that helped doom him in the courtroom, and to ask him what he wants to happen next.

“I’m still trying to get a new trial,” says Clair. “That’s all I’m asking for. If they convict me, they won’t even hear from Clair no more. I’ll just go and find some spot in some prison and just live my life out.”

Clair, who blames much of his predicament on ineffective counsel appointed by the county, also offered some advice for anyone who finds him or herself wrongfully accused of a crime:

“If you’re able to, try to hire an independent investigator, someone who works for you. It can bring about a change.”

Produced by Zach Weissmueller. Camera by Alexis Garcia. Music by Kai Engel.

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