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2nd Penalty Trial for Killer Rejected

October 31, 1998|TRACY WILSON

Ventura County prosecutors will not seek a second penalty trial for a convicted killer whose death sentence was overturned by a federal appeals court.

Robert Cruz McLain was sentenced to death in 1981 for raping and fatally shooting a young hitchhiker, Joni Donnell Kelley, and dumping her body in a trash can at a Santa Paula park. The crimes occurred in November 1979.

Fresh out of prison for sexually assaulting two 11-year-old girls, McLain and his 18-year-old nephew then drove to Solano County where they raped a 31-year-old woman and slit her throat.

McLain was the second Ventura County man to receive a death sentence after capital punishment was reinstated in California in 1978. The state Supreme Court unanimously upheld his convictions and sentence.

But a federal court subsequently overturned the death sentence based on an instruction given to the jury about the governor's power to change a death sentence to one less severe.

According to prosecutors, the instruction was required at the time the case was tried, but has since been ruled improper. They said the ruling was applied retroactively.

Two weeks ago, the U.S. Supreme Court denied a request by the state attorney general to review the case, leaving local prosecutors to decide whether to seek a second death sentence before a new jury.

Because McLain is in poor health and still faces a life sentence without the possibility of parole, Ventura County prosecutors decided not to retry the case. "McLain is now 58 years old and in generally poor health, both mentally and physically," Deputy Dist. Atty. Pete Kossoris said in a written statement. "It was concluded that the likelihood of obtaining another death sentence and having it carried out before McLain died a natural death was not very substantial and does not justify retrying the penalty phase now."

McLain is serving an additional life prison term for the Solano County murder.

McLain's nephew, Theodore Willis, also received a life sentence.

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