Death penalty conviction for notorious L.A. gang killer overturned by state’s high court
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The California Supreme Court overturned the death penalty conviction of one of L.A.’s most notorious gang killers Thursday, saying a juror who likely would have spared Timothy McGhee from execution was wrongly dismissed.
“Because of the erroneous discharge of a juror during guilt phase deliberations, we must reverse McGhee’s conviction and sentence,” Justice Goodwin H. Liu wrote for the court.
McGhee, 51, was one of the country’s most wanted fugitives when he was nabbed in Bullhead City following a nationwide manhunt in 2003. The head of the Toonerville gang in Atwater Village, he was suspected in nine killings, charged with six, and convicted of three.
Those convictions, handed down with the death penalty in 2009, were reversed Thursday in the court’s sweeping decision.
Reputed to be ruthless and disciplined, McGhee cut a terrifying figure in L.A.’s gangland wars of the 1990s and early 2000s — his back and chest are emblazoned with the name of his crew and their turf, his shaved skull inked with the eagle and snake of the Mexican flag.
Michael Lerma, 68, was convicted of racketeering and murder in a trial that showed how he called the shots for gangs in his hometown of Pomona and took over his wing of a federal jail in downtown Los Angeles, overseeing drug sales, stabbings, and at least one killing.
A Los Angeles Police Department detective once compared him to Charles Manson.
The gang boss taunted law enforcement and organized a sophisticated ambush that ensnared two LAPD officers in a barrage of gunfire. Witnesses at his trial testified he waged a campaign of terror, hunting rivals and sometimes killing indiscriminately. He boasted in rap lyrics about the pleasure he felt in taking someone’s life.
“Here I come, last chance to run. Killer with a gun, out to have some fun,” McGhee wrote in a notebook of rap lyrics discovered in his girlfriend’s home. “In my dreams, I hear screams. Pleasure I feel is so obscene.”
Those lyrics helped convince the jury of McGhee’s guilt in the deaths of rival gang members Ronnie Martin, 25 and Ryan Gonzalez, 17, as well as 25-year-old Margie Mendoza, the girlfriend of another rival.
During the penalty phase of his trial, jurors heard he was involved in the execution-style killing of a friend, Christina Duran, who had told police about his role in Mendoza’s slaying.
But jurors deadlocked over whether he should face the death penalty. One juror told the times that two of her fellows insisted McGhee should receive some leniency because he grew up without a father.
“What would it take to tip the scales?” the juror said. “That’s the way most of us felt.”
A second jury convened for sentencing agreed he should be executed — but not before a “hardheaded” holdout was dismissed after two fellow jurors argued he was “not capable of making a fair decision in any of the counts against McGhee,” according to court records quoted in the decision.
“Juror Number Five is using speculation as facts and has no rational explanation as to why he feels the way he does other than saying every prosecution witness was coached and lying,” Jurors 9 and 11 wrote the court on the third day of deliberations. “Yet the defense witnesses are all telling the truth and believable.”
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The court first asked the foreperson to weigh in. He agreed with Jurors 9 and 11, arguing No.5 ‘s assertions were “not coming from what we heard.” Several other jurors polled by the court disagreed, saying the deliberations were going well.
Juror 5’s doubt appeared to hang on the gang members who served as witnesses against McGhee, some of whom had cut deals in exchange for their testimony, and others who testified police had prodded them into identifying him. None had initially come forward.
Those facts helped sway the high court that Juror 5’s concerns were genuine and his removal improper.
“Most of those witnesses testified at trial that they did not remember the events in question, and other witnesses admitted having lied to the police about what they knew,” Judge Liu wrote. “Among those who did cooperate on the witness stand, former Toonerville member Mark Gonzales testified under a grant of immunity, and there was evidence suggesting other witnesses had received a benefit in exchange for testifying.”
According to court papers, Juror 5 told his fellow jurors he felt their stories seemed rehearsed.
He cast doubt one witness, a mother of four, because she said she went outside to see what had happened after hearing gunshots.
The juror said he refused to believe another eye witness because “‘if I heard shots, I would fall onto the floor and try to protect myself’.”
The foreperson told the court Juror 5 claimed “gang members wouldn’t do certain things.”
Liu noted that belief could have been based on the prosecution’s gang expert’s testimony that “snitching was not allowed within gang culture, even if someone was snitching on a rival gang.”
Patrick Ford, McGhee’s attorney, said the court’s finding was justified based on the juror’s reasonable doubts.
“He was deliberating nobly, and he just reached a different conclusion than the other jurors,” Ford said. “It’s not an easy job in an 11-against-1 kind of a ‘Twelve Angry Men’ situation.”
Although his murder convictions were overturned, McGhee will likely remain at Kern Valley State Prison, where he is serving an additional life sentence earned under California’s decades-long three strikes law.
Delivering on a campaign promise, L.A. County Dist. Atty. Nathan Hochman says he will allow prosecutors to seek capital punishment in certain murder cases, undoing a policy of his predecessor, George Gascón.
While while awaiting trial at L.A.’s Men’s Central Jail, he incited jail riots and assaulted guards, court records show. In 2012, he was accused of slashing two prison guards with a shank while awaiting execution on death row at San Quentin.
Los Angeles District Attorney Nathan Hochman did not immediately say whether he would retry McGhee for the murders, nor whether he would again seek the death penalty, which his predecessor abjured.
Hochman said late last month he will seek the death penalty in some cases, reversing the previous moratorium.
Retrying the case nearly two decades after the original conviction would be expensive and difficult, Ford said.
“It’s a very serious matter, and it’s costly and there’s a lot of resources used by the state,” even though California has not executed a prisoner in years, Ford said. “You wonder, to what end? Is the money worth it?”
