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Rackauckas testifies for ex-inmate

In compensation hearing for convict who did 19 years for murder, D.A. says he had changed his mind about the man he prosecuted.

February 01, 2007|Christopher Goffard | Times Staff Writer

SACRAMENTO — The prosecutor who helped send DeWayne McKinney to prison on a murder charge -- and agreed to set him free nearly two decades later -- testified Wednesday that he was "likely" not a killer but couldn't be certain.

Orange County Dist. Atty. Tony Rackauckas was a young prosecutor in 1982 when he persuaded a jury that McKinney, then a gang member, committed the execution-style killing of 19-year-old Walter Bell during a robbery two years earlier at a Chapman Avenue Burger King in Orange.

But in 2000, after two of his top investigators told him that new evidence pointed strongly to another suspect, Rackauckas wasted little time in endorsing McKinney's release.

Rackauckas found himself on the witness stand defending that decision Wednesday at a hearing before the state's Victim Compensation and Government Claims Board, where McKinney is seeking about $700,000 and a ruling that vindicates his claim of innocence. The state attorney general's office maintains that McKinney was the Burger King killer.

Called to the stand by McKinney's lawyers, Rackauckas testified that he assigned two seasoned investigators to reexamine McKinney's case after the public defender's office contacted him suggesting there was evidence of his innocence.

A prison inmate, Charles Hill, had implicated his cousin Willie Walker as a participant in the robbery and another man, Raymond Jackett, as the shooter. Walker confessed to being the getaway driver and said McKinney was not involved.

John Santy, one of the district attorney investigators who reexamined the case, has said that he began the investigation with the assumption that Hill and Walker -- both violent criminals serving life terms -- had concocted a fiction to exonerate McKinney.

"We set out to show that this was a scheme hatched in prison among some friends to get McKinney out or reduce his sentence or something," Santy told one of McKinney's lawyers. Ultimately, Santy said, he found Hill and Walker credible and became convinced of McKinney's innocence.

Douglas Kennedy, the other investigator, also started with skepticism but reached the same conclusion. Among the evidence exonerating McKinney, he said, was a shotgun wound to the leg he suffered in a drive-by shooting just weeks before the Burger King slaying. It would have been "extremely difficult, if not impossible," for him to vault the restaurant counter during the robbery, as witnesses said the robber had done.

During his testimony Wednesday, Rackauckas would not go as far as his two investigators in proclaiming McKinney's innocence.

"I think it's likely that he didn't commit the murder," Rackauckas said under questioning from McKinney's lawyer. Apart from the accounts of Hill and Walker, Rackauckas said, an independent witness had seen an old car with primer spots near the crime scene that matched Jackett's car.

On cross-examination by Deputy Atty. Gen. Michael Farrell, however, Rackauckas added that it remained "possible" that McKinney, now 46, was the killer. He said it would not be possible to bring charges against Jackett because his "obvious defense" would be that McKinney did it.

"Mr. Rackauckas is not an expert as to whether Mr. McKinney is innocent," Farrell said, and called his views of the evidence "irrelevant."

After his release from prison, McKinney campaigned for Rackauckas in his bid for reelection in 2002. Farrell asked Rackauckas if that motivated his support for the freed inmate and whether he feared political embarrassment should it be revealed he set a guilty man free.

"If the public were to learn you walked the precinct with a murderer, do you think that would reflect well on you?" Farrell asked.

Rackauckas said politics did not play a role in his decision. In an interview with The Times, he said he testified because McKinney's lawyers asked him to.

"I'm not delighted to come and testify and oppose the position of the attorney general," he said. "I just came to tell the truth about my involvement. I don't have any stake in him getting paid or not."

Though no physical evidence tied McKinney to the robbery, four restaurant employees identified him as the culprit. Two of them have since recanted.

Wednesday, McKinney's lawyers called an expert on eyewitness identification, Robert Shomer, who detailed flaws in how police conducted the photographic lineups from which Burger King employees picked McKinney as the shooter.

He said McKinney's photo stuck out like "a sore thumb" from the other suspects -- and was therefore suggestive -- because his face was depicted closer up. Further, he cited research establishing that stressful situations such as holdups make it difficult for witnesses to make accurate identifications, particularly when the culprit is of a different race.

McKinney lives in Hawaii and runs an ATM business. To prevail before the compensation board, he must prove that it is more likely than not he is innocent of the crime. The hearing is expected to conclude today, but it is not clear how long it will take the compensation board to make a ruling.


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