Prosecutors Again Seek Death Penalty

Starting this week, Ventura County prosecutors will try for a second time to send convicted killer Kenneth McKinzie to death row for beating and strangling an elderly Oxnard woman during a 1995 robbery.

McKinzie, 39, was found guilty Nov. 3 of murder with special circumstances, robbery and burglary after a monthlong trial.

But in the penalty phase, the jury hung 11 to 1 in favor of death, forcing a mistrial on the question of sentencing. Within hours, prosecutors announced they would seek the death penalty again.

Longtime attorneys say this case marks the first time local prosecutors have retried a penalty phase after a mistrial. Deputy Dist. Atty. Don Glynn said the one-sided deadlock convinced them to present their case a second time.

“That was so close,” he said last week. “We felt we made the right decision the first time to go for the death penalty. It just seemed like the moral thing to do.”

Now, after a painstaking process to seat a second jury, the new trial is set to begin Wednesday with opening statements in Superior Court Judge Vincent J. O’Neill’s courtroom.

The retrial is expected to last two weeks. Just one question faces the jury: Should McKinzie, an Oxnard resident with a long criminal history, be executed or sentenced to life in prison without the possibility of parole?

The judge and lawyers spent weeks screening 150 prospective jurors in an effort to cull from the ranks those who harbor extreme views on the death penalty.

According to jurors from the first trial, the lone holdout made up his mind early on in the proceedings not to vote for death. This time, the lawyers have pressed hard to ensure that the panel is open-minded.

In many ways, the evidence presented to the second jury will mirror that presented during last year’s full trial.

Prosecutors plan to call roughly 25 witnesses and focus on the brutality of 73-year-old Ruth Avril’s murder.

A divorcee who lived alone, Avril was attacked after midnight on Dec. 22, 1995, while turning off a light in her garage. She was beaten in the head and forced into the trunk of her car.

Still alive, Avril was driven to a remote agricultural area of Oxnard, where she was strangled and tossed into an irrigation ditch. Two surfers found her body the next morning.

Police discovered that her apartment had been robbed and her car had been stolen.

During the first trial, Glynn and co-counsel Cheryl Morgan portrayed McKinzie as a remorseless killer who accosted Avril so he could steal her stereo and other belongings for drug money.

But the defense argued that authorities had charged the wrong man. They suggested that a former Oxnard resident whose handprint was found inside Avril’s apartment was the real killer.

McKinzie took the stand and told the jury that he hadn’t killed Avril. He said that by taking Avril’s stolen items from the killer he had implicated himself in the crime. The jury rejected his story.

After the mistrial, most jurors explained that they believed McKinzie deserved execution because of the way Avril died. Several said they couldn’t get the crime scene photos of her beaten body off their minds.

During the first penalty trial, defense attorney Willard Wiksell urged the jury to see his client not as a monster, but as a loving father with a destructive drug addiction. He told jurors that life in prison was a severe enough punishment, and asked them to spare McKinzie’s life.

This time, Wiksell will have additional help in making his case.

Criminal defense lawyer James M. Farley, an aggressive opponent of the death penalty and a seasoned lawyer on capital cases, has joined the defense team.

Last year, Farley represented convicted wife-killer Michael Dally, who was sentenced to life in prison without parole after the jury hung 7 to 5 at the penalty phase. Prosecutors decided not to retry the case.

Farley and Wiksell have handled several capital trials together. The last, in 1992, was the penalty trial of Gregory Smith, who pleaded guilty to raping and killing an 8-year-old Northridge boy, Paul Bailly.

Although the lawyers contended that Smith should not be executed because he was a “defective human being” with the mind of a child, the jury recommended death for the Canoga Park day-care aide.

Last week, Farley said he had offered to help Wiksell when McKinzie’s first penalty trial ended in a hung jury, adding that he never likes to handle a capital case alone.

“It’s too much for one lawyer to do,” he said.

Wiksell declined to comment on what strategy the defense team plans to take during the retrial. But he said he was happy to be working with Farley again and relieved to have assistance with McKinzie’s case.

“I need all the help I can get,” he said.