California man who spent years in prison shouldn't be compensated?

Once again the "beyond reasonable doubt" criterion for conviction gets lost. One must expect that gang membership and a criminal record will influence judgments however

DeWayne McKinney deserves no compensation for the 19 years he spent behind bars on a first-degree murder conviction, even though the man who prosecuted him now believes it likely he was wrongfully convicted, a state official has concluded. The recommendation of Kyle Hedum, a hearing officer for the Victim Compensation and Government Claims Board, to deny McKinney compensation will be considered by the three-member board Oct. 16.

No physical evidence connected McKinney to the robbery of a Burger King on Chapman Avenue in Orange, where in December 1980 a gunman vaulted the counter and gunned down 19-year-old night manager Walter Bell. Four restaurant employees implicated McKinney, leading to his life sentence on a conviction for first-degree murder.

Orange County Dist. Atty. Tony Rackauckas prosecuted McKinney in 1982. But 18 years later, after two of his top investigators alerted him to flaws in the case, he decided there was enough evidence to "undermine confidence" in the conviction and endorsed McKinney's release.

McKinney, 46, who now runs a successful ATM business in Hawaii, is seeking about $700,000 in compensation from the state for wrongful conviction -- $100 for each day he spent in prison -- and must prove that it was more likely than not that he was innocent.

But in a Sept. 7 ruling, Hedum ruled that a "preponderance of the evidence" still pointed to McKinney as the Burger King killer. Though two eyewitnesses recanted their testimony, Hedum gave weight to the two who remain convinced of McKinney's guilt.

McKinney's lawyers argued for his innocence at a hearing in January and February in Sacramento, with Rackauckas testifying that McKinney was "likely" not the killer but that he couldn't be certain. An expert on eyewitness identification testified that Orange police botched the photographic lineups from which witnesses picked McKinney. In the photo pack, his face appeared larger than others and was therefore suggestive, the expert said.

McKinney, who acknowledges that he once belonged to the 52nd Street Crips and that he participated in an attempted jewelry store robbery, was a 20-year-old Ontario resident when he was arrested. He had suffered a serious shotgun wound to the leg about a month before the Burger King murder. His lawyers say that would have prevented him from vaulting the restaurant counter, as witnesses said the killer did.

The case was reopened after a Lancaster State Prison inmate, Charles Hill, came forward in 1997 with a letter in which he claimed to have planned the Burger King robbery. Hill's cousin, Willie C. Walker, confessed to being the getaway driver and said McKinney had not been involved.

The state attorney general's office, which argued against McKinney's compensation claim, describes Hill and Walker as "violent serial rapists" who concocted the story of McKinney's innocence in hopes of reduced sentences for their own crimes.

The hearing officer ruled that McKinney's leg wound "did not preclude him from jumping or sliding over the Burger King counter" and that Hill's and Walker's accounts of the Burger King robbery were not credible.

Since 2001, when a California law went into effect allowing wrongfully incarcerated people to claim $100 a day for each day behind bars after conviction, no claimant has prevailed over opposition from the attorney general's office. In light of that, said McKinney's attorney, Jeffrey Rawitz, "our expectations were tempered." He said McKinney was "very disappointed by the recommendation but remains optimistic that the board won't follow the hearing officer's recommendation." He declined to make McKinney available for comment until the final ruling.

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