SANTA ANA, Calif. – An inmate who was previously sentenced to receive the death penalty will be brought back to Orange County at the request of the Orange County District Attorney (OCDA) to be resentenced to life in state prison without the possibility of parole. Kenneth Clair, 55, housed in San Quentin State Prison, was found guilty by a jury in 1987, of one felony count of special circumstances murder during the commission of a burglary, two felony counts of burglary, and a sentencing enhancement for a prior prison conviction for a 1976 armed robbery in Louisiana was found true. Clair was also sentenced to receive the death penalty in 1987. Clair is expected to be in court for a resentencing hearing on Feb. 19, 2016, at 9:00 a.m. in Department C-45, Central Justice Center, Santa Ana.

Case Facts

In November 1984, Clair was a transient and unlawfully living in an unoccupied home on West Wilshire Avenue in Santa Ana.

On Nov. 7, 1984, Clair, then 25, entered the home next door to the one where he was squatting in while the neighbors, the Henriksens, were out of the house. Clair stole several items from the neighbors' home, including $450 in cash. On Nov. 11, 1984, Clair was arrested for the burglary, and he was subsequently released the next day.

On the evening of Nov. 15, 1984, Clair entered the same home, while the Henriksens were away. Linda Faye Rodgers, 25, who babysat the homeowners' children and lived in the home, was in the residence. Clair bound the victim's hands behind her back and forced her to walk into a bedroom. Clair began punching and hitting the victim, removed the victim's pants and forced the victim onto a bed. Clair then used a foreign object to penetrate the victim before strangling and stabbing the victim multiple times.

The case was investigated by the Santa Ana Police Department (SAPD). Then-Deputy District Attorney Mike Jacobs prosecuted the case.

Jury Trial

During the jury trial, Clair's then-girlfriend Pauline Flores testified. The California Supreme Court inPeople v. Clair, (1992) 2 Cal. 4th629, 646-647 unanimously affirmed Clair's conviction and death sentence in 1992. The trial evidence consisted of the following:

On the night of November 15, she [Flores] happened on defendant in the general vicinity of West Wilshire Avenue. Later on, he asked her to walk with him as he went to recover some “personal property,” and she did so. They got to the area of the Henriksen residence and the vacant house. She knew he had squatted in the latter. Once there, he asked her to wait by a tree. He said he would be right back. He was not. After about an hour, she began to retrace the path she had taken.

Five or ten minutes later, Flores encountered defendant. He was carrying two speakers, a light blue floral blanket, and a six-pack of Budweiser beer. She asked where he had been. He said he had gone to a liquor store on a certain corner to get some beer. He did not generally drink Budweiser beer. Moreover, there was in fact no liquor store on the corner in question. Flores then asked what took him so long. He said he had “just finished beating up a woman.” She did not inquire further “[b]ecause I would have got the shit beat out of me.” She saw blood on the palm of his right hand. She asked where it had come from. He said he had been “fighting with somebody.” Here too she did not inquire further. They walked to a church, sat on the steps, and talked for a while. They then went behind some trees on the property. He showed her some goods, including pieces of jewelry. They had sexual intercourse and went to sleep. Margaret Henriksen later testified that items including the speakers, blanket, beer, and jewelry had been stolen that night.

One of the items of jewelry which Flores told police she had seen Clair in possession of on the night of the murder was a distinctive turquoise eagle necklace. Mrs. Henriksen separately described an identical turquoise eagle necklace as missing from her home after the night of the murder.

On Jan. 16, 1985, Flores met with Clair after he was released from jail on an unrelated burglary charge. It was his third residential burglary he committed within a 2-month span.As described by the California Supreme Court, “Unknown to him [Clair], she was by that time working as an undercover police agent,” and was “fitted with a concealed audiotape-recording device.” During the conversation between Flores and Clair, Flores told Clair that the police had questioned her about the burglary and murder occurring at the Henriksen's home on Nov. 15, 1984, and that she was nervous that she would get in trouble for lying to cover Clair's guilt for the crime.

Among the incriminating tape-recorded statements Clair made during this conversation are:

• “They can't prove a motherf*****' thing, not unless you open your motherf*****' mouth.”
• “Baby what you fail to realize, how the motherf*****s they gonna prove I was there? . . . There ain't no motherf*****' fingerprints, ain't no f*****' where in there, and ain't no f*****' body seen me go in there and leave out of there.”
• In response to a request to tell her “what the f*** happened over there,” he said: “Why should I, so you can go back and tell [the police?]”
• When she stated that she had seen blood on him the night of the murder, he replied, “Ain't on me no more.”

Procedures

During the defendant's death penalty appeals and habeas corpus proceedings, the guilty verdict was upheld. However, in March 2015, the penalty phase verdict was reversed. The California Attorney General's Office (CAG) represented the People of the State of California during all the appeals process of this case. All parties are under a gag order concerning the reversal of the death penalty. For more information concerning the reversal of the death penalty, please contact the Federal Ninth Circuit Court of Appeals.

In June 2015, after the reversal of the death penalty sentence, and after consulting with the CAG, the OCDA decided not to re-seek the death penalty in this case. The OCDA took into consideration various factors including, the age of the case, the difficulties in re-locating witnesses and victims, the prospect of having the victims relive the crime, and the defendant's unique life circumstances, among other reasons.

DNA From the Murder Scene

When the Rodgers murder occurred in 1984, sophisticated forensic DNA analysis was not yet available to test evidence in criminal cases. In October 2007, the OCDA submitted some items from the scene of the murder in this case to a private accredited forensic laboratory, asking the laboratory to analyze the evidence for the presence of human DNA.

The OCDA made the request in connection with the investigation of the sexual assault, strangulation and beating-murder of 38-year-old Elizabeth Mae Hoffschneider in Huntington Beach on the night of Nov. 14, 1984, just one night before the Rodgers murder. In 2007, pursuant to the Huntington Beach Police Department re-investigating the unsolved murder of Hoffschneider, it submitted some crime scene evidence for DNA testing. Through a multi-loci DNA profile developed from hairs found near Hoffschneider's body, the Orange County Crime Lab (OCCL) determined that Gerald Go, a convicted sex offender, was the source of the hairs.

In October 2007, the OCDA charged Go with the murder of Hoffschneider. The OCDA also submitted the crime scene evidence from the murder of Rodgers for DNA testing to the private accredited forensic laboratory to see whether Go was responsible for the murder of Rodgers instead of Clair.

Human DNA consists of a number of genetic markers. Nuclear DNA is stored as chromosomes solely in the nucleus of a cell and in those chromosomes are Short Tandem Repeats (STRs).These STRs are scattered throughout the human genome in specific locations (loci) and on the pairs of chromosomes. The sex chromosome of a male is XY while the female is XX. A haplotype is a specific group of genes or alleles that are inherited together from one parent. The Y-STR haplotype is passed on from father to son.

When the private forensic laboratory tested items from the Rodgers crime scene, the laboratory was unable to extract any full, multi-loci DNA profiles relevant to the case. Such multi-loci profiles, which are commonly introduced in court, can carry great evidentiary value if they are found to match the DNA profile of a known individual. Full multi-locus autosomal DNA profiles typically have frequency estimates rarer than one in a trillion unrelated individuals.

The private laboratory was able to extract a fairly common Y-STR haplotype from a swab taken from the victim's vaginal area. Approximately one in 700 males share this same haplotype. The Y-STR haplotype extracted was not shared by defendant Clair or Go, nor was any other individual identified as sharing the same Y-STR haplotype. Since the victim had been assaulted with a foreign object, there was little expectation that Clair's DNA would be found in the victim's vaginal cavity.

In December 2007, the Orange County Superior Court appointed defense attorney, the late Phil Zalewski, a recognized DNA expert  in the legal profession, to represent defendant Clair for the purposes of reviewing whether to file a motion under California Penal Code section 1405 (PC 1405) on Clair's behalf for post-conviction DNA testing of the crime scene evidence.

In January 2008, Clair moved the court to order OCDA not to perform any further DNA testing without the concurrence of the defense.  The court granted the motion. Zalewski, concluded his representation of Clair in May 2010, having determined not to petition for DNA testing under PC 1405.

In May 2010, the private laboratory reported to the OCDA that it had recently tested the Y-STR of a person in an unrelated case from Fresno County. At the time of the murder of Rodgers in 1984, that person was still a child, who lived outside of the United States and had no male relatives living in Orange County. The laboratory reported that the person from the Fresno case, like approximately one in 700 males, shared the Y-STR haplotype which the lab had extracted from the crime scene evidence submitted by the OCDA in October 2007. The OCDA provided this information to defendant Clair.

In October 2010, the defense filed a motion in Orange County Superior Court requesting the OCDA reveal the identity of the individual from the unrelated Fresno case. The defense moved the Honorable Thomas M. Goethals to order the release of the identification of the individual.

The OCDA opposed the motion, arguing:

“The fact that male DNA [the Y-STR haplotype] was detected in a swab of the victim's vagina is no indication she was raped at the time of her murder, or even that she had intercourse at the time of the murder. The swabs tested negative for semen at the time of trial. (Trial RT 1591.) Thus, any male DNA [the Y-STR haplotype] in the victim's vagina was either deposited well before her murder, or was the result of contamination of the sample. If in fact the victim had had sexual contact with some male relative of the individual whose Y DNA apparently matches the Y DNA found in the vaginal swab, discovery of that male relative would not in any way diminish the evidence against Clair in this case. It would have no tendency to prove that someone other than Clair killed Linda Rodgers.”

After both sides were heard by Judge Goethals, and the issue was fully litigated, in February 2011, the court denied release of the identity of the person from the Fresno case.

The Innocence Review Panel

The OCDA created the Innocence Review Panel to review cases of incarcerated inmates who argue that they have been wrongfully convicted. The Panel, made up of the District Attorney, a senior deputy district attorney, a public defender, and private defense counsel, determines whether any type of forensic testing, such as DNA or fingerprint analysis, would result in probative evidence that may exonerate the inmate or uphold the conviction. Since 2000, 400 criminal cases have been examined. Of those, forensic analysis was used in seven cases and all yielded evidence confirming the inmate's guilt.

As in every conviction, if new evidence surfaces in this case, the OCDA is willing to reopen Clair's case.

Orange County District Attorney / Case # C-57572 / January 14, 2016