Free after 19yrs for someone else's OC crime. Photo: DAVE YODER OC Register   Racial profiling
 
A free man   Convicted of 1980 O.C. murder, Dwayne McKinney is released from prison with the help of the man who put him there
1.29.00   Stuart Pfeifer & Tony Saavedra Orange County Register

LANCASTER   Dwayne McKinney walked out of prison Friday after spending 19 years behind bars for an Orange County murder that his prosecutor now says may have been committed by another man. McKinney stood disoriented outside the Lancaster prison gate unsure what to do with himself.
"Where do I go from here? How do I pick up the pieces? I'm so nervous, my stomach is in knots," said McKinney, 39, who had been sentenced to life without parole. Judge Kazuharu Makino ordered McKinney's release Friday at the request of Orange County District Attorney Tony Rackauckas, who said there was enough new evidence to believe that another man committed the slaying.
Rackauckas, who as a young lawyer prosecuted McKinney, fell short of saying that McKinney was innocent. But there is mounting evidence, first reported by The Orange County Register, that another man was responsible for the slaying of a Burger King employee during a 1980 robbery.

"I don't think we can feel confident in the conviction at this stage," Rackauckas said during a news conference. "It's difficult to look back on this case after having gone through the trial ... and go back and find out there's another suspect." Rackauckas, the man who put McKinney in prison, was the man who got him out.
By 2:20 p.m., McKinney got the surprise call from his lawyer. He was dumbfounded.
"I feel like I'm going to fall down. I'm scared. I want to fall down on the floor and thank God," McKinney said in a prison interview shortly after hearing the news. By 3:30 p.m. the court order was faxed to the prison. By 5:15 p.m., McKinney was being driven by a van to the prison gate, carrying $200 in prison-issued money — the most he has had in nearly two decades. He wore new Levis and prison-issued Reeboks that were two sizes too small.
He abandoned all his belongings in his jail cell, taking only his Bible.

Technology and progress had long passed him by. He marveled at the size of cellular telephones and the volume of traffic on a Lancaster street. He sniffed enthusiastically in a local restaurant, savoring smells he hadn't known in years — barbecued ribs and fried chicken.
His senses were almost overwhelmed during a brief ride through town and he nearly became carsick.
"I hope it's not always going to be like this," McKinney said. "It may take awhile to get used to this."

At a local restaurant, McKinney became an instant celebrity. Waitresses gave him gift certificates and a job application. McKinney's release came without the counseling that parolees receive. Prison officials told him he would have to get counseling on his own.
Deputy Public Defender Denise Gragg, who championed McKinney's cause for two years, said she had faith McKinney would make it.
"If anybody can survive what he has survived and go on to be a good productive member of society, it's him," Gragg said, adding that his case should be a reminder that the legal system is fallible. Public Defender Carl Holmes said Friday was the biggest day in the history of the defender's office — nothing like this has happened before.
He said defenders yelled, whooped and hollered when they received a fax Friday afternoon, noting that McKinney would be released.
"I'm so proud of my staff and grateful that the DA took the courageous route and exonerated our client," he said. "There are very few people in the criminal-justice system who would admit they made a mistake. For Mr. Rackauckas to do that shows a lot of integrity."

The path to McKinney's release started two years ago with a letter written to the Public Defender's Office by prison inmate Charles Edward Hill. He said he was present when the Burger King robbery was planned. And he said he knew the real killer.
That letter spawned an investigation by the public defender, then by the Register and finally by county prosecutors. Prosecutors were spurred into action after the public defender filed court papers demanding a new trial for McKinney.
All three investigations showed that another man, Raymond Herman Jackett III, may have been the robber who killed a Burger King employee in 1980. Besides evidence unearthed by the district attorney's and public defender's offices, the Register found that:

News of McKinney's release overjoyed juror Karen Sue McKusick, who had held out for his innocence but said she was eventually worn down by fellow jurors into voting "guilty."
"The people who are closest to me are thankful they don't have to go to bed at night thinking I put somebody in prison for this many years and he wasn't guilty. That's a heavy cross to bear," McKusick said.
Don Bulla, one of the eyewitnesses who now says Jackett is the killer, reacted with glee to McKinney's release. "It's about time, I'm really happy for him," said Bulla, 39, of Garden Grove.
Webb, the police investigator who arrested McKinney, had little to say about his release. "We elected Tony Rackauckas as district attorney to represent us. He looked at this case and he made a decision based on the facts he had," Webb said. "I have a great deal of confidence in the criminal-justice system."

Rackauckas' investigators interviewed more than 60 witnesses in seven states and several correctional facilities before a decision was reached Friday. Rackauckas, who prosecuted McKinney and unsuccessfully sought his execution, made the final decision. Prosecutors noted that McKinney's lawyers first learned that Jackett might have been the killer in 1982, but failed to adequately follow it up.
It was Rackauckas who years ago persuaded a jury to convict McKinney of first-degree murder for the Dec. 11, 1980, slaying of 19-year-old Walter Horace Bell Jr. during a robbery at the Burger King restaurant in Orange.

The shooter herded three workers into a walk-in refrigerator. He found Bell counting the day's receipts in a small office. He forced Bell to open the safe, then made him sit facedown at his desk. Before fleeing, the gunman muttered: "Don't move or you'll get this."
Then he shot Bell in the back of the head. Bell died instantly.

McKinney's conviction was based on the testimony of eyewitnesses, two of whom told the Register last year that they now believe Jackett committed the crime.
Although the jury declined to impose a death sentence, McKinney's life was forever changed by the conviction. He spent 6,982 days in custody, an experience he described as alternately lonely, frightening and enlightening.
McKinney was stabbed three times in prison, targeted by the Mexican Mafia. On many nights, he cried himself to sleep. About six years ago, McKinney started practicing Christianity, a change he said that has shaped him into a man who will be able to succeed outside prison walls.

At two trials and through a series of appeals, attorneys argued that McKinney was a victim of mistaken eyewitness testimony. They contended that McKinney was at home in Ontario — 30 miles from the crime scene — when a tall, beanie-wearing gunman killed Bell with a single .22-caliber handgun blast.
McKinney was a likely target. A member of a notorious Los Angeles gang, McKinney was paroled from the California Youth Authority only three months before the Burger King murder.
A key element of his defense was the fact that he was limping from a shotgun wound to his right calf at the time of the shooting. No witnesses saw the gunman limping.
The robbery was similar to others committed by Crips gang members. McKinney's photograph was among dozens of Crips mug shots shown to Burger King workers who witnessed the robbery. One of the witnesses, Richard Shewbert, told a detective that McKinney's photograph looked like the gunman. Another employee, Brian March, narrowed his choice to two photographs: McKinney and another man.

The next day, Ontario police arrested McKinney, six days after the slaying. In an interview last year, McKinney told the Register that the first time he was ever in Orange County was when he was driven to jail.
And he didn't leave Orange County until he was driven to prison.

Of all the possible arguments against the death penalty, the one that is most compelling to me is the possibility of executing an innocent person as the result of prosecutorial or jury error.
Now on Jan. 29 we learn that new evidence has forced Orange County Dist. Atty. Tony Rackauckas to recommend the release of Dwayne McKinney, imprisoned 18 years for a murder he did not commit. Rackauckas was the lead prosecutor at the trial. He admits, "There's always a possibility that a jury can be wrong or that the prosecution can be wrong. It's a judgment call."

But in spite of that admission, he sees no reason to alter his staunch support of the death penalty. I find his stance incredible. If the jury in McKinney's case had not deadlocked on the death penalty, he would probably have died long ago.
But Rackauckas doesn't seem to be bothered by that fact, or the even more frightening possibility that police misconduct such as that being uncovered in the Los Angeles Police Department could result in innocent people being executed. I realize that it would be difficult for the district attorney to be reelected in Orange County if he expressed reservations about the death penalty, but is he really willing to sacrifice a few innocent people in the name of political ambition? Shame on him!

It looks as if a man imprisoned by Dist. Atty. Tony Rackauckas for murder 18 years ago will finally walk free. What Deputy Dist. Atty. Rackauckas did then is being undone now because of efforts of the Orange County public defender's office. The review it initiated--even reviewed again by the district attorney's office's investigators--raises questions.

During the years McKinney was caged, his prosecutor parlayed wins into a judgeship followed by election as district attorney. Last summer, Los Amigos of Orange County sent several letters requesting meetings with the district attorney about prosecutorial behavior in current cases. They were ignored.
Then we sent a California Public Records Act request for copies of any Orange County district attorney's office written standards of professional conduct. Rackauckas had the head of his felony division reply to us that there were none.

At a December 1999 Santa Ana meeting with the California attorney general, attended by local Vietnamese and Latino leaders, the exchange of correspondence was mentioned. The attorney general expressed surprise, and an Orange County deputy district attorney present suggested that indeed there were standards. A follow-up letter and phone call to that deputy went unanswered.
A letter to the attorney general brought a subordinate's two-page explanation that would have made a reference librarian proud. It suggested everything from the Bill of Rights to Bar Assn. rules as relating to standards of prosecutorial conduct, a groaning buffet of legalese.

In the spring of 1992, the Center for the Study of Psychiatry disclosed the planned federal psychiatric violence initiative and began a national campaign to stop it from gaining full momentum. The federal violence initiative includes ongoing research into the supposed biological basis of inner-city violence; but we are more concerned about proposals for biomedical social control put forth by the director of the National Institute of Mental Health (NIMH), Frederick Goodwin, and scheduled for full funding in 1994. The plans involve a massive psychiatric screening program through inner city public schools and, presumably, pre-school programs, since Goodwin wishes to identify violence-prone children as young as age two. The intention is to psychiatrically treat minority group children who presumably have biochemical and genetic defects that will make them violent when they grow up. This inevitably will mean the mass drugging of helpless, innocent inner city children, as well as a gross government intrusion into their lives and the lives of their families. Much of the federal government's effort has gone into denying the existence or the racist intent of the violence initiative. Meanwhile, a new federally-sponsored report has come out that presents a virtual blueprint for the violence initiative, directly linking it to the control of inner city violence in the black community.

The National Academy of Sciences Joins the Controversy The new report, by the National Research Council (NRC), was released in the fall of 1992 with a 1993 publication date. It is entitled Understanding and Preventing Violence. The National Research Council is extraordinarily prestigious and influential. It was organized in 1916 by the National Academy of Sciences "to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal govt." The study was sponsored by three federal agencies, the Centers for Disease Control (CDC), the Justice Department, and the National Science Foundation. It drew heavily on research from the National Institutes of Health (NIH) and NIMH. The mandate was to develop future policies in regard to violence in America, and its focus was on urban violence.
The National Academy of Sciences, the parent group of the National Research Council, was chartered by Congress in 1863 as "a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare." The final report exemplifies the dangers of applying a "scientific" and "engineering" mandate to social problems and political policy. The report closely parallels Goodwin's proposals, focusing on the inner city and recommending that even younger children, "as early as the age of 4 months" (p. 160), be studied for potential violence. The report points to "ethnicity" and "poverty"-and hence the inner city-as the major variables predicting physical violence. By any standard, it brings an unusually heave biological and genetic emphasis to bear. The November 13 New York Times headline announcing the report aptly read "Study Cites Biology's Role in Violence Behavior." The Council report discusses many supposed biological variables related to violence, including serotonin and other "biomedical measures" and "neurological markers for violence potentials." Its final recommendations for "Research in Neglected Areas" uses language similar to Goodwin's violence initiative, calling for "systematic searches for neurological markers for persons with elevated potentials for violent behavior."

The National Research Council directly advocates further research on drugs for violence. It urges "systematic searches for medications that reduce violence behavior without the debilitating side effects of "chemical restraint." (p. 24) Violence initiative interventions are described and promoted. They are called "Multicommunity Longitudinal Studies" and include research on "neurological measures . . . . as is ethically and technical feasible" as well as actual "interventions" at the "biological" level (p. 25). The report looks forward in the future to "unparalleled opportunity to examine the relationships between biomedical variables and violent behavior" (p. 158). No conclusive evidence for the role of genetics in violence is found by the Council, and studies it cites show the opposite-that genetics plays no role in violence. Since the report identifies the poor ethnic minorities in the inner city as its main concern, the genetic studies would inevitably focus on African Americans. If enough are conducted with the usual high degree of bias, surely some will end up "proving" what so many seem bent on trying to prove.
What is the report's attitude toward race? It explicitly focuses on minorities and especially black people. The Council refers to "socioeconomic status" and "ethnic status" as major predictors of violence (pp. 70-71). It observes, "Blacks are disproportionately represented in all arrests, and more so in those for violent crimes than for property crimes." The data are presented with no hint that rates of arrest might reflect racist attitudes of the arresting police officers or institutional racism within the criminal justice system. It does not hint at any of the social factors that lead to arrests for violence, such as the seeming necessity of violence for survival purposes among young men in the inner city.

Finally, the National Research Council lets down its guard and shows its true colors. The study offers a list of "Key Questions" under "Research Priorities." Key question number one is, "Do males and black persons have a higher potential for violence than others and, if so, why?" (p. 380, emphasis added). Notice that the target group is not black males but "black persons," as if the Council is suggesting that the possible genetic vulnerability toward violence involves all African Americans. The mention of males along with black persons seems gratuitous, aimed at diminishing the racist impact. There is almost no disagreement that males are more physically violent than females. Besides, the Council report show little interest in males in general, and much interest in ethnic and poor minorities, who are its primary focus and concern. The use of the term "black persons" represents the smoking gun of racism in this report and in the violence initiative. It contradicts statements made by Fred Goodwin and by the Secretary of Health and Human Services, Louis Sullivan, that government research and interventions show no sign of targeting black people.
The aim of the Council report is to set government policy in years to come. It is presented as a scientific consensus rather than as a political policy, and therein lies the grave danger. It makes more likely the possibility that the Clinton administration will continue to support a biomedical violence initiative on the mistaken grounds that it is based on science rather than politics. Even if it does not lead to a grand-scale violence initiative, the Council report will encourage continued support for the far-flung research program that is already in place in various agencies and the addition of similar research projects in the future. For further information on the violence initiative, write to the Center for the Study of Psychiatry, 4628 Chestnut Street, Bethesda, Maryland 20814.

America's dramatic drop in crime rates during the 1990s may have its roots in a 1970s Supreme Court decision. Last year, economists Steven Levitt and John Donohue III presented a controversial explanation for the crime drop: Legalized abortion wiped out many potential criminals. Their 45-page study suggests that, after abortion was made legal in a 1973 Supreme Court decision, it was disproportionately used by women at high risk of having children who grow up to become criminals. "Teenagers, unmarried women, and African Americans are all substantially more likely to seek abortions," they write. The "crime bust" of the 1990s, they say, corresponds to the time when children, had they been born instead of aborted in the 1970s, would have been reaching the peak ages of criminal activity: 18-24. The economists have stated that they are not advocating abortion or promoting any political or racial agenda. Nevertheless, their data suggest that abortion is actually a form of Eugenics, the controversial "science" of social engineering through selective breeding and deadly public policies, which began in Britain but reached its height under the German Nazi regime.

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