The conversion of Judge McGrath

Although he formally retired as a judge more than eight years ago, Charles McGrath still puts in 40 hours a week for about 10 months each year helping out with caseload overflow at the Ventura County main courthouse. He attributes his work-recreation imbalance to a sense of civic duty and a lack of recreational opportunities. “I’m not a golfer, and I’m not a sailor,” he said. “I have horses, but you can only do so much riding before the horses get sick of you.” His family’s deep roots in the community alsiso seem to motivate him to indefinitely extend his 32 years of public service—less than 10 miles south of the courthouse, land once owned by his grandfather is now McGrath State Beach, one of the best bird-watching locales in the state.

But, through a twist of fate, the 68-year-old jurist also will forever have a tangled connection to a Lodi vineyard, and a long-since-decomposed trail of blood that led to the body of a 17-year-old Lodi High School senior in 1981.

Two months ago, that connection became considerably more tangled when McGrath, in whose court Terri Winchell’s killer was found guilty and sentenced to death, sought to prevent a second intentional homicide from further extending the body count associated with the tragedy. In an unprecedented reversal, the judge now says it would be unconscionable to execute the man he sent to death row for murdering Winchell. In the process, he has broken rank with his peers and openly questioned the competency of his superiors, including some of the highest-ranking judges in the state and federal court systems. McGrath also has provoked an acrimonious confrontation with Arnold Schwarzenegger—the man he helped elect as governor of California in 2003—and the San Joaquin County district attorney’s office. Both the governor and the district attorney’s office have accused the judge of having an impaired memory and misrepresenting what happened in his own courtroom.

To an extraordinary degree, McGrath has effectively switched sides and aligned himself with a niche subculture of the legal profession: low-paid, overworked lawyers who toil away mostly under the radar thwarting the will of public opinion and defending the seemingly indefensible. On both an intellectual and moral level, the conversion also has prompted McGrath to question his own long-held support of capital punishment. The conservative, solidly right-wing jurist who once had near total faith in the integrity of the criminal-justice system is now a skeptic.

Unabashed, tough on crime
The 25-year drama began on January 8, 1981 when, after Terri Winchell failed to return home for the evening, her mother reported her missing to police. The next evening, 19-year-old Rick Ortega led police to Winchell’s heinously violated corpse. The victim’s head had been pulpified by 23 blows with a hammer, and her body raped and then stabbed four times in the chest.

Ortega admitted that he and his 21-year-old cousin, Michael Morales, committed the crime. The suspects were arrested, and the San Joaquin County district attorney’s office charged Ortega and Morales with murder and rape, as well as two “special circumstance” allegations of torture and lying in wait—essentially ambushing the victim by surprise. The special circumstances made both eligible for the death penalty. The stark contrast between the viciousness of the crime and the innocence of the victim—a popular high-school honor student—and a motive involving a bisexual love triangle generated a media frenzy. As a result, the trial was moved to Ventura County and then assigned to the courtroom of McGrath.

McGrath is an unabashed tough-on-crime lifelong Republican who was an attorney in private practice before he moved to the bench. Active in party politics, McGrath was a delegate to the 1972 Republican National Convention in Miami Beach. Incumbents Richard Nixon and Spiro Agnew were nominated, while outside massive protests, primarily against the Vietnam War, took place. “I remember one night we got out of the convention hall, and we had to run through tear gas. They had gassed the demonstrators, and the gas was still hanging in the air,” he recalled. In 1974, McGrath was appointed to the municipal-court bench by Governor Ronald Reagan, during Reagan’s last year in office. The requirements of the new public-sector job meant he had to resign from the Ventura County Sheriff’s Department posse, an equestrian team that conducted search-and-rescue missions in Los Padres National Forest. “After I became a judge, I had to turn in the badge and the gun,” he explained. Several years later, he submitted his application for a promotion to Superior Court judge to the new governor, Jerry Brown, a Democrat. Brown’s office refused to process the application, a snub McGrath attributes to his political affiliation. As a result, McGrath chose the alternate path to the higher position, local election.

“That was the most hectic year of my life,” he said. “We had to raise money, we had to buy publicity, we had to buy signs, and I had speaking engagements almost every day, sometimes more than one,” he said. But the efforts paid off, and in November 1978, McGrath was elected to the Superior Court. Officially sworn in in 1979, the judge heard only criminal cases for most of his career. Known as a resolute jurist, McGrath refused to allow plea bargains in his courtroom until a higher court’s ruling forced him to change the policy. “I thought the defendants, if they were willing to plead guilty, ought to plead guilty straight up and let the judge decide what he thought was an appropriate sentence and not agree to a sentence before the plea,” he said. In a 1980 interview for a legal publication, one Ventura County attorney called McGrath “two steps to the right of Justice William Clark of the California Supreme Court.” Clark was known as an acerbic conservative, and McGrath laughs when reminded of the comparison but concedes he can’t contest it. He said he attributes his judicial philosophy to his conservative, Irish Catholic background, but he won’t elaborate beyond that. But four years after his elevation to the Superior Court, a case that eventually would test that strict philosophy, and his deepest held beliefs, landed in his courtroom.

The trial of Michael Morales came before McGrath in early 1983. When it was over, the jury convicted Morales of first-degree murder, conspiracy to commit murder, and rape, and found the special-circumstances allegations to be true. Following the verdict, McGrath and the jury then heard additional testimony in the separate sentencing phase of the trial, in which the jurors would decide between capital punishment or life in prison without the possibility of parole. On April 19, 1983, the jury recommended that Morales be sentenced to death. Eight weeks later, McGrath adopted the jury’s recommendation and formally decreed that Morales would die by lethal injection; the now-condemned defendant was transferred to death row at San Quentin State Prison. Following Morales’ trial, Ortega was tried and convicted separately and sentenced to life in prison without the possibility of parole.

Nearly 23 years later, McGrath now has made the stunning pronouncement that he made a mistake and that had he known then what he knows now, he would not have sentenced Morales to death. But the power to stop the execution is out of his hands.

Judge McGrath v. Schwarzenegger
In late January 2006, about three weeks before Morales was scheduled to be executed, his attorneys submitted a clemency petition to Schwarzenegger in which they requested that his sentence be modified to life in prison without the possibility of parole. Included in the petition was a letter from McGrath to the governor also requesting the sentence modification and detailing why the original sentencing judge had changed his mind. McGrath explained to Schwarzenegger that in imposing the death penalty, he had relied heavily on the testimony of Bruce Samuelson, a key prosecution witness. “I found Mr. Samuelson to be credible and believable,” McGrath wrote. “New information has emerged to show the evidence upon which I relied in sentencing Mr. Morales to death—Mr. Samuelson’s testimony—is false.”

Samuelson was a career criminal and jailhouse informant who claimed that Morales confessed explicit details about the murder and rape to him while the two were housed in the San Joaquin County Jail. Samuelson was facing six felony charges stemming from a string of crimes that included vehicle theft, receiving stolen property and forgery. In exchange for his testimony against Morales, the San Joaquin County district attorney’s office dismissed four of the six charges against Samuelson.

Samuelson’s sophistication and experience with the role of compensated informant was graphically expressed in a letter he wrote to the prosecutor several weeks before the start of the Morales trial. The snitch asserted he would provide more than just his testimony. Samuelson promised his testimony would “guarantee a murder 1 conviction w/special circumstances.” In addition to the dismissal of the charges against him, the repeat offender also asked for, but apparently didn’t receive, a laundry list of additional perks including housing, a job, a car and an eye exam and glasses. (See the sidebar “Art of the deal.”)

Although the plea-agreement deal between Samuelson and the prosecutor was disclosed to the Morales jury, McGrath said that Samuelson’s testimony describing the confession was the only evidence to support the lying-in-wait special circumstance, which made Morales eligible for the death penalty, and the rape conviction. Because the torture special circumstance was invalidated by a federal appeals court, the lying-in-wait finding was the only remaining aspect of the crime that kept Morales on track to the San Quentin death chamber. In addition, Samuelson gave other statements used in the sentencing phase that discredited Morales’ own testimony that he felt deep remorse for the crime, a critical factor in the judge’s decision to impose the death penalty. Samuelson claimed that Morales made derogatory statements about the victim—including muttering “You fucking bitch” as he walked away from the body—callously boasted about the attack and solicited him to murder two prosecution trial witnesses.

“I believe that Mr. Samuelson’s testimony was instrumental in convincing the jury, as it did me, that death was the only appropriate punishment in this case,” McGrath wrote in his letter to the governor.

McGrath went on to explain that new evidence discovered by the attorney general’s office in 1993 called into question Samuelson’s damning testimony. When asked years later by the attorney general’s office how he was able to obtain such a detailed confession from Morales in a crowded cellblock widely known to hold informants, Samuelson replied that he and Morales had conversed in Spanish whenever they talked about the case.

Morales, however, grew up in an English-speaking household and didn’t know Spanish. The judge said that this information would have rendered Samuelson’s testimony, and the prosecution’s case, insufficient to support the death sentence. McGrath explained that Samuelson’s statements were critical in tipping the balance of aggravating and mitigating circumstances in favor of the death penalty and that he had specifically instructed the jury “to consider Mr. Samuelson’s testimony in choosing the appropriate sentence and that Mr. Samuelson’s testimony alone could be used to outweigh all mitigating evidence and compel a death sentence.”

“If in the course of performing my judicial duty, I had been permitted to consider evidence of Mr. Samuelson’s falsehoods that was belatedly discovered by the Attorney General and Mr. Morales’ attorneys, I would not have let the death sentence stand; and the awesome decision whether to spare his life would not be before you at this time,” McGrath wrote to the governor.

“Under such circumstances, executing Mr. Morales would frustrate the design of our sentencing laws, and would constitute a grievous and freakish injustice.”

The governor says no
In his formal written response to the Morales clemency petition, San Joaquin County Deputy District Attorney Charles Schultz asked the governor to deny the re-sentencing request and proceed with the execution because, among other things, Morales’ conviction had been reviewed and upheld by the state and federal court systems. That indicated, according to Schultz, that the opinion of the judge that tried the case was uninformed. “In other words, when these courts rejected Morales’s claim, their judgment was based upon an enormous and complete record not known or considered by Judge McGrath,” Schultz wrote. Schultz also argued that, despite McGrath’s claim, other information presented during the trial buttressed Samuelson’s testimony.

“Judge McGrath apparently does not recall, or at least does not allude to the abundance of evidence that confirms Bruce Samuelson’s account of the conversations with Morales,” he wrote. Shultz did not return several calls from SN&R.

In a six-page statement that recited the heinousness of the crime—including many facts attributed to the testimony of Samuelson—and recycled the arguments of Schultz, Schwarzenegger denied the clemency request on February 17, four days before Morales was scheduled to die. And again, the judge who’d tried the case was dismissed as having an incomplete grasp of the facts. “A review of the evidence and trial transcripts reveals that the judge’s letter is not an accurate reflection of the record before the jury and courts because there is other evidence supporting the lying-in-wait special circumstance,” the governor wrote.

Schwarzenegger also dismissed Morales’ claims of post-conviction regret, remorse and rehabilitation, factors that McGrath said played no role in his re-sentencing request. “It had nothing to do with [Morales’] character or how he is now; it had to do with the perjured testimony entirely. I’m worried about the integrity of our system,” McGrath told SN&R. And, like Schultz, Schwarzenegger emphasized that Morales’ claims were considered and rejected at all levels of the state and federal courts.

McGrath, however, contends that the assertion that the state and federal courts have reviewed and rejected all of Morales’ claims is misleading. “I am not aware of any state or federal court having conducted an evidentiary inquiry into the truthfulness of Mr. Samuelson’s testimony,” he wrote to Schwarzenegger. “I know that I have not been asked to testify regarding the significance of the information that has been disclosed since I was led to believe that Mr. Morales actually made the incriminating statements attributed to him by Mr. Samuelson.” At an evidentiary inquiry, or hearing, an appellate-level court conducts a mini-trial to resolve questions about new evidence, recanted witness testimony or other issues that can affect the validity of a prior conviction. The hearing does not mean that a conviction will be reversed, only that the new evidence will receive a fair airing and testing by both the prosecution and the defense. Had Morales been given an evidentiary hearing, McGrath said, McGrath would have testified that the new evidence of Samuelson’s dishonesty would have rendered the prosecution’s case “insufficient to support the death penalty.”

In fact, Morales is the first condemned prisoner in California since the death penalty was restored in 1978 who has not received an evidentiary hearing in any court, state or federal, or on a single habeas-corpus claim, according to Dave Senior, lead counsel on the Morales defense team. “While the district attorney asserts that post-conviction courts have spent years poring over Mr. Morales’ claims based on an enormous and complete record, nothing could be further from the actual truth,” he said. Senior pointed out that at the federal-court level, one judge denied Morales an evidentiary hearing because 23 years ago McGrath had said that Samuelson was “credible and believable.” The federal judge also ruled that even if Samuelson had lied, as long as the prosecution wasn’t aware of it the error wasn’t serious enough because “the United States Constitution does not guarantee a defendant a trial in which no witness lies.”

Had any court granted Morales an evidentiary hearing, Senior was prepared to present extensive evidence that Samuelson was an “opportunistic, mendacious deviant from long before he testified at Mr. Morales’ trial until well afterward.” And McGrath was anxious to perform his role in the review process. “The statutory requirement that trial judges review death penalty verdicts is intended to enhance the fairness, uniformity and reliability of penalty determinations in capital cases,” he reminded Schwarzenegger.

Senior was able to locate Sarah Samuelson, Bruce Samuelson’s ex-wife, who, in a sworn declaration, said that her ex-husband had an “extensive history of deceit, physical violence, theft, drug use and dealing, and sexually predatory behavior.” Samuelson boasted to his wife about his sexual conquests, including underage girls and his own sister, according to his ex-wife’s statement. “He bragged about [his sister] wanting him, then going crazy and saying she was raped,” she said in the declaration. A 1983 probation report confirmed that in addition to multiple arrests for vehicle theft, burglary and forgery, Samuelson was charged with two counts of forcible rape against his sister. In addition, Sarah said that her husband repeatedly beat her and their three children over the course of their 10-year marriage. “He slapped us, kicked us, threw us across rooms, and locked us in rooms for hours at a time,” she wrote. “Seven weeks before I was to give birth to our oldest son Bruce beat me so badly that I was hospitalized,” she said in the sworn statement. The incident resulted in the premature birth of their son and the arrest of his father, according to the declaration. A probation officer’s report from the California Youth Authority in 1981 said that Samuelson had compiled “an extensive history of delinquent behavior dating back to 1972.”

A probation officer assigned to supervise Samuelson shortly after he testified against Morales recommended that he be put on informal rather than formal probation because he was a lost cause. “With recent budget cuts within the Probation Department and the resulting loss of staff, it is felt formal supervision should be afforded to individuals who have not already proven themselves to have the established pattern of criminality,” she wrote. Later in 1983, the same year he testified at Morales’ trial, the San Joaquin County Superior Court ordered Samuelson’s parole revoked and a bench warrant issued. In 1993, Samuelson was convicted of felony grand theft in Idaho and sentenced to 10 years’ probation, which he violated a year later when he was convicted of spousal abuse.

As additional exhibits to the clemency petition, Senior provided Schwarzenegger the professional informant’s criminal history and court records that also showed Samuelson left a trail of $1,000 in bounced checks when he later left Washington for California. In 1995, Samuelson returned to Idaho and convinced a court to reinstate his probation by claiming that he had graduated from Columbia University, majoring in microcomputer applications. “These were lies,” wrote Senior. Senior believes Samuelson is now back in Vancouver, Wash.

As he explained to the governor, Senior believes that most of what Samuelson testified to about the Morales case came from reports he’d read in the local paper or seen on television, or from legal documents in Morales’ cell that he reviewed while claiming to be helping Morales prepare his case. In one police report, Samuelson admitted that Morales had shown him the autopsy report, which showed diagrams of the victim’s stab wounds and head injuries.

Awaiting the ultimate punishment
The latest twist in the Morales case came on the day Morales’ heartbeat was expected to be flat-lined by the state of California.

In a separate federal-court proceeding, a judge in San Jose required that the Morales execution be carried out by medically trained personnel because of concerns that the lethal-injection process could cause excruciating pain if improperly administered. The state brought in anesthesiologists to carry out the procedure, but at the last minute, they balked, citing ethical concerns. As a result, the death warrant authorizing the execution of Morales expired, and a new one must be issued by the original trial judge, McGrath. The judge said he will follow the law and sign a new warrant despite his reservations about the case. “If you mean is there a conflict, as far as I’m concerned, no there isn’t,” he said. Further court hearings in the San Jose lethal-injection challenge are scheduled for May.

McGrath is clearly a reserved man not prone to exaggerated introspection. He is reluctant to say much more about his involvement in the Morales case or elaborate further on his clemency letter. “The letter kind of speaks for itself. I really don’t want to comment about this,” he said.

Senior, also a lifelong conservative Republican, does admit that the case has had a profound effect on him. The Los Angeles-based attorney is a partner in McBreen & Senior, a law firm that represents corporate clients defending claims for discrimination and harassment, commercial agreements and products liability litigation. Senior ended up being assigned the case in 1991 at a time when the federal courts were pressuring attorneys throughout the state to help with a backlog of death-penalty appeal cases. The experience of defending Morales, who lived on the streets after being estranged from his parents at age 15, was an eye-opening experience to the white-collar corporate counsel.

“The one thing I will say with absolute certainty as a white, 48-year-old Republican is when you’re forced to represent the interests of your clients in these [death penalty] cases, and you’re forced to get out from behind the dice table at your country club and head over to the other side of the tracks, it has a life-changing impact on you,” he said. “You see and appreciate things in a whole different light. There are a lot of people I know that were born on third base and think they hit a triple. I have a much better appreciation for how fortunate I am.”

Meanwhile, the criminal-court judge once known as one of the most rigid and strict arbiters in his county, and now more widely known as the only judge since the reinstatement of the death penalty in California to request clemency for a death-row inmate that he personally condemned to die, also seems to have had a conversion. Although he declines to say outright whether he still supports capital punishment, McGrath does confess that his once-stringent beliefs have evolved.

“I’m a little dubious about the efficacy of the death penalty,” he told SN&R. His dubiousness, however, actually appears to have started several years ago. When he retired in 1997, while reflecting back on his career, McGrath told a local reporter that sentencing someone to death was the hardest decision a judge could make. He also expressed doubts about the effectiveness and practicality of the death penalty. “The appeals are interminable. We could use our judicial resources in other ways. Nobody really argues anymore that it’s a deterrent,” he explained.

“I am beginning to feel it’s not worth all the trouble.”