Defense lawyers on Friday revealed for the first time that they expect Randy Steven Kraft to testify at his murder trial--but only if the judge limits cross-examination by the prosecutor.
Kraft's lawyers also want the judge to caution jurors not to draw conclusions about the entire case if the defendant limits his testimony to only some of 16 murders he is charged with committing.
Superior Court Judge Donald A. McCartin, presiding over the Santa Ana courtroom where Kraft is being tried, scheduled an all-day hearing for March 30 to discuss the issue.
Since his arrest in 1983, Kraft has never made any statements to the police about the charges against him. He talked to the media only once--an interview with The Times in which he denied killing anyone but would only talk briefly about details of the cases.
"We anticipate, if the court will limit the cross-examination, calling Mr. Kraft to testify about certain counts but not others, and about certain subjects but not others," Kraft attorney William J. Kopeny told the judge.
Kraft, who will turn 44 on Sunday, has been on trial since last July in what some legal experts say may be the most expensive criminal proceeding in the state's history. Most of the victims showed signs of sexual abuse and were known to be either hitchhikers or on the street without transportation.
Kraft was arrested after two California Highway Patrol officers found a dead Marine, 25-year-old Terry Lee Gambrel, in the front passenger seat of Kraft's car. Gambrel had been strangled, his pants were down, and marks on his wrists indicated he had been tied up with laces from his own tennis shoes.
Found in the trunk of Kraft's car at the time of his arrest was a coded list, in Kraft's handwriting, which prosecutors claim is his own "score card" of the number of people he has killed. It has 61 entries.
Kraft lawyer Kopeny refused to say which of the 16 slayings Kraft might address in his testimony. But the defense lawyer used Gambrel and the "list" as examples of problems that might occur.
Should Kraft testify only about Gambrel, Kopeny suggested that Deputy Dist. Atty. Bryan F. Brown should not be allowed to question Kraft about other killings--such as those prosecutors contend were represented on the "score card."
Prosecutors claim that 14 of the 16 victims in the charges can be linked to Kraft on that list. One of the two that prosecutors cannot link is Gambrel. Prosecutors say Kraft did not have time to put Gambrel on the list before the CHP officers stopped him.
"Mr. Brown is going to want to cross-examine Mr. Kraft about those other deaths the prosecution believes is on that list," Kopeny predicted. The defense would object because under traditional courtroom rules, prosecutors could only question Kraft about topics he himself raised.
Kopeny said he was not sure what would be allowed if Kraft himself discussed any of the deaths on the list.
"Those are issues we will have to discuss at the hearing on March 30," Kopeny said.
Brown, who has been looking forward to the chance to cross-examine Kraft for nearly 6 years, told the judge he is troubled with any discussion of how to limit his questions if he doesn't know in advance which subjects Kraft will cover.
"Just logically, if the defense doesn't give you, or us, a script on what Mr. Kraft is going to say, how can you in the wildest stretch of the imagination figure out what is the proper scope of cross-examination?" Brown asked the judge.
Kopeny said later that the defense may discuss the subject matter of Kraft's testimony with the judge at an in camera hearing at which prosecutors would not be not present.
Kopeny stressed to the court that no final decision will be made on whether Kraft will testify until after the March 30 hearing. Kraft attorney C. Thomas McDonald asked the judge to give jurors the full day off that day so the lawyers would have time to hammer out the issue. McCartin agreed.
"This is going to be extremely complicated," McDonald told the court.
The defense lawyers said they will also have to hold a long meeting with their client before making any final decisions.
A primary issue at the March 30 hearing will be what instructions to give to the jury about Kraft's limited testimony. Prosecutors had submitted to the court a proposal that would have allowed jurors to draw inferences against Kraft if he failed to address all the murders with which he is charged. But Kraft's lawyers called that unacceptable. Jurors, they claim, should be instructed to not draw any such inferences.
Without such an instruction, Kopeny said, the jurors might keep their own "laundry lists" of facts they felt Kraft did not adequately explain on the witness stand.
Kraft has filed numerous court papers on his own about his unhappiness with his living conditions at the Orange County Jail. But in none of those papers has he ever discussed the details of his case.
The prospect of Kraft's testimony has set the judge's timetable back a week. He had expected the defense to finish its case the week after Easter, with prosecutors ready for a week of rebuttal after that. But now, the judge said, the prosecution should be ready for rebuttal April 10.
In other Kraft issues Friday, defense attorneys announced to the court that they have decided to oppose his decision to sequester the jurors during their deliberations. The judge has informed the jurors he plans to put them up at a local hotel during their deliberations unless any of them argue at a hearing March 27 that it would be a hardship for them.
Kopeny told the judge that the defense believes that sequestering the jurors would unintentionally place undue pressure on them to finish their deliberations more quickly so they can return to their families.