Plea deal for killer of gay man
by Ed Walsh
The man who killed a gay man in 2002 and let the victim's body rot in a bathtub cut a deal with the San Francisco District Attorney's office for a six-year prison sentence. With credit for three years already served in county jail, James McKinnon, 40, will be free in two to three years.
McKinnon is now serving time in San Quentin State Prison. He was transferred there shortly after his sentencing on August 12 for killing Gary Lee Ober, 56. McKinnon will be eligible for parole in 2007 and must be released by 2008. McKinnon agreed to plead guilty to voluntary manslaughter in exchange for the six-year sentence.
Ober's two close friends, Stephanie Henry and Frank Franco, were first informed of the plea bargain by the Bay Area Reporter last Friday, November 11. They reacted with shock and outrage.
"I am just flabbergasted," Franco said. "This guy is a menace. I cannot believe this. It is beyond my comprehension. It wasn't manslaughter. It was full, outright, pointblank murder.
"I expected the son of bitch to go to jail for the rest of his life. What was this prosecutor thinking? It's unbelievable."
Franco was a former bartender at the Pendulum bar and was friends with both McKinnon and Ober. According to police, Ober met McKinnon at the bar.
Echoed Henry: "He basically got off scot-free. I cannot believe it. It was all swept under the rug. It's a ridiculously sad sentence. I am shocked. I am devastated in sadness. It is unbelievable. I cannot believe how justice did not prevail. It didn't even halfway prevail.
"If this is justice I would hate to see what is unjust," she later added.
Henry said she would pray over the news and ask God for help to understand it.
The DA's office said it stood by its decision to accept the plea-bargain, saying the case would have been difficult to bring before a jury.
As part of the plea-bargain, the San Francisco District Attorney's office also agreed to dismiss an elder abuse charge against McKinnon. In that case, a 68-year-old disabled man, Luther Chattman, alleged that McKinnon robbed, threatened, and tried to strangle him. Chattman's lawyer, Ron Foreman, was informed of the plea bargain by the B.A.R. on Monday, November 14. He said that Chattman's family would be outraged if they knew that McKinnon received only six years.
In exchange for the DA's office agreeing to drop charges in the Chattman case, McKinnon was required to pay restitution. Foreman said that McKinnon stole $8,000 from his client. In court, McKinnon's lawyer noted that he had no money. McKinnon could be required to pay restitution from the money he earns while working in prison but a spokesman for San Quentin State Prison told the B.A.R. that the most highly skilled prison worker makes, at most, $100 per month. The spokesman declined to say whether McKinnon is working as part of his sentence, or how much money he is making if he is working while in prison.
Foreman said that McKinnon forced Chattman to live in squalor and made him sleep in his wheelchair, which caused him to develop skin lesions. Ober was killed in August 2002. McKinnon worked for Chattman for about four months earlier that year.
In a jailhouse interview with the B.A.R. shortly after his arrest in September 2002, McKinnon confessed that he killed Ober but said that he had to do so to keep Ober from sexually assaulting him. McKinnon said he was too scared to go to police. McKinnon said he was vulnerable at the time because he was weak from pneumonia.
"That's ridiculous," countered Franco, who explained that Ober had a serious back problem and would not have presented any threat to McKinnon. "He murdered a person who was hardly able to stand up on his own two feet," Franco explained. "[Ober] could no more defend himself than a child."
Franco said he felt a sense of guilt over what happened because he introduced McKinnon and Ober. He also briefly let McKinnon live with him and believes that he could have just as easily been killed.
McKinnon was arrested on September 13, 2002, three days after police found Ober's badly decomposed body in the bathtub of his Glen Park apartment. Henry, his close friend and neighbor, said that she saw McKinnon coming and going from the apartment and he insisted that he was housesitting while Ober was away on a cruise. Henry eventually called police after noticing a bad smell and swarms of flies around the apartment.
The medical examiner's report said that Ober's body was "near skeletalization" and that he had two "sharp force injuries" to his left chest. The San Francisco medical examiner at the time, Dr. Boyd Stephens, said that the injuries were recent but it was impossible to know if those injuries caused Ober's death because of the extent of decomposition.
Franco said that McKinnon was flush with money in the days after Ober was killed. He said that McKinnon bought rounds of drinks for customers at the Pendulum and sold pain medication and jewelry belonging to Ober.Â
A backpack containing a loaded gun and Ober's checkbook was found in the Midnight Sun bar sometime in mid-August, after Ober was killed. The backpack was turned over to San Francisco Patrol Special Police Officer Jane Warner, who alerted San Francisco Police Homicide Inspector Holly Pera. Police say McKinnon used checks to steal money from Ober after he was killed.
McKinnon told the B.A.R. in his jailhouse interview that although he has spent time in bars in the Castro and is attracted to men, he doesn't consider
"I'm not gay," McKinnon said. "I'm not bi. I'm a people person. And I love people. I don't like peepholes. Do you know the difference between a peephole and a people? A peephole, you can see right through them."
DA's office responds
The assistant district attorney who worked on the McKinnon case, Linda Allen, told the B.A.R. this week that the plea-bargain was a good decision. She explained that if the case went to trial, a jury may have believed McKinnon's claim of self-defense and found him not guilty. She also noted that a knife was found in Ober's apartment with traces of blood on it that did not belong to McKinnon or Ober. Allen explained that the knife could be used as a red herring by the defense to blame the killing on someone else.
Inspector Pera echoed Allen's concerns that a jury could find McKinnon not guilty or could possibly end in a hung jury.
"I'm not disappointed in [the plea-bargain], given the totality of the case," Pera told the B.A.R. "It was going to be a very difficult case to prove."
But Pera said she agreed with Ober's friends in their belief that McKinnon would present a danger to society when he is released.
Although McKinnon was sentenced three months ago, the B.A.R. first learned about it two weeks ago while talking to Pera about an unrelated case. The B.A.R. held off on reporting the story for a week to give the DA's office ample time to respond.
Because of McKinnon's jailhouse confession to the B.A.R. , this reporter was forced by subpoena to testify during the preliminary hearing for McKinnon two years ago and had been subpoenaed to testify for McKinnon's trial. The case had been delayed several times. None of the witnesses, including this reporter, had been notified by the DA's office that the case had been settled.
The spokeswoman for the DA's office, Debbie Mesloh, told the B.A.R. in an e-mail that the DA's office "...ideally tries to inform witnesses in homicide trials about the outcome of the cases. Unfortunately, limited resources and the current caseload (we are still working to reduce the homicide backlog) sometimes do not afford us the opportunity to inform every witness in every homicide."
Chief Assistant District Attorney Russ Giuntini told the B.A.R. that it was his experience from prosecuting cases in Alameda County that witnesses are not routinely notified of the dispensation of cases.
Franco said he was convinced that the DA's office had other reasons for not informing him or Henry.
"It's a total slap in the face," Franco said. "There's a good reason for them to keep it quiet if they settled for manslaughter. What is wrong with the prosecutors in San Francisco? It's ridiculous."
Franco said the first prosecutor assigned to the case, Elliott Beckleman, assured him that the DA's office was seeking life without parole. Beckleman handled McKinnon's preliminary hearing. Mesloh said he was rotated off the homicide team for "a variety of reasons" and now works in the elder abuse unit. Beckleman was out of town this week and unavailable for comment.
The B.A.R. sent an e-mail to Mesloh asking whether San Francisco District Attorney Kamala Harris signed off on the disposition of the McKinnon case. The B.A.R . received no response by press time. The B.A.R. also requested to speak with Harris directly about the case, but received no response by press time.
Mesloh wrote in an earlier e-mail that "homicide dispositions are reviewed by a team of prosecutors as well as the chief of the criminal division and the chief assistant. This team of prosecutors or the chief of the criminal division or chief assistant may bring a case to the district attorney for her advice or review."
Franco has since left California. He said he is convinced that McKinnon will return to San Francisco after he is released to commit more crime.
"This guy is going to be out on the streets to find another innocent victim," he said.Â "To know this son of bitch is walking away after five years just kills me."
Henry echoed Franco's concerns about the risk to society when McKinnon gets out.Â Â She also said the case sends a clear message to would-be criminals in San Francisco.
"If you can get away with murder, why not do it? That's what I see from this outcome.Â It's sickening," she said.
Henry added that she is still shaken by Ober's death.
"I have not been able to take baths in my house," she said. "The whole thought of it is something that stays in my mind. And the smell is still in my mind."
In an interview with the B.A.R. shortly after McKinnon's arrest three years ago, Henry fondly recalled Ober's kind and generous nature. She said he used to make gifts for her nieces and nephews. Most of all, she remembered the time they spent together. She said they would sometimes keep their apartment doors open and amuse themselves by referring to the east and west wing, as if they lived in a mansion.
Said Franco last week, "I loved Lee Ober. He was genuinely a wonderful person."