It was seemingly a solid first-degree murder case. In 2002, a 37-year-old man killed a partially disabled 56-year-old gay man and left his body rotting in the bathtub of the victim's apartment in the Glen Park neighborhood of San Francisco. For weeks, as the victim's body was decomposing, police said he went in and out of the apartment pawning anything of value and used the victim's checkbook to steal money from his account.
In a jailhouse interview, James McKinnon confessed to the Bay Area Reporter that he killed Gary Lee Ober but said he acted in self-defense to fend off a sexual assault.
In a separate case, McKinnon was accused of abusing another man just a month before he killed Ober. In that case, he allegedly forced 68-year-old Luther Chattman to live in filth, stealing money from him and, in one instance, tried to strangle him. McKinnon had been employed as the man's caretaker.
McKinnon had a prior conviction for misdemeanor domestic violence, according to the San Francisco Chronicle. McKinnon told the B. A. R. that he was married twice and had a child with each wife. He said he "walked out" on both wives and his two children.
Then-district attorney Terence Hallinan was prosecuting McKinnon for murder. But McKinnon's fate would soon change very dramatically in his favor.
Kamala Harris, now the Democratic nominee for president, defeated Hallinan in a runoff election in 2003 and took office as San Francisco's DA in January 2004. Harris was elected with promises of being "smart on crime" and the support of powerful friends, including then-San Francisco mayor Willie Brown. Hallinan was stung by a San Francisco Chronicle investigation that found he had the lowest conviction rate in the state, and Harris was quick to remind voters of that record.
When she took office, Harris appeared to focus on improving her predecessor's record. But several law enforcement sources told the B.A.R. and other media outlets at the time that she inflated her record by holding a "fire sale" on backlogged homicide cases, pleading them out to manslaughter or even lesser charges.
Harris has also been accused of inflating her experience as a prosecutor. Last month, ABC News reported that in a 2003 campaign flyer she claimed she "tried hundreds of serious and violent felonies, including homicide, rape, and child sexual assault cases." But when confronted about it by opponent Bill Fazio in a 2003 debate on KGO Radio, Harris responded, "I've tried about 50 cases, Mr. Fazio, and it's about leadership."
Debbie Mesloh, spokesperson for Harris' 2003 campaign, dismissed the allegation, telling ABC News last month that it was "absurd to parse semantics when you are talking about securing justice for crime survivors."
Fazio told ABC News last month that he supports his former adversary for president. He recalled that Harris had been "exaggerating her record" during that campaign and said it was "puffery," which he said was common among politicians.
"I think we all tend to do that when people run for office. You'll get people who say that they graduated summa cum laude and they didn't, or graduated top of their class, and they didn't," Fazio said.
In a 2006 Chronicle article, San Francisco Police Captain Tim Hettrich credited Harris for tightening loopholes in bail and drug programs but said she routinely offered some defendants favorable plea deals and refused to prosecute others.
"What this is all about, with her, is conviction [rate] — the percentage of convictions compared to other district attorneys in the state of California," Hettrich said.
Echoed SFPD homicide division's Lieutenant John Hennessy in the 2006 story, in referring to Harris' downgrading of charges, "It's not like her predecessor accepted a bunch of junk. They were good cases when they were filed."
The Chronicle reported that Harris inherited a backlog of 73 homicide cases and took the unusual step of sending letters to defense attorneys inviting them to discuss plea deals. In 32 of those cases, Harris' office cut deals for manslaughter or lesser crimes, including assault or burglary.
One of those 32 cases was McKinnon's. The San Francisco DA's office said it was approached in 2005 by McKinnon's lawyer asking for a plea deal to have his charges reduced to manslaughter. The DA's office accepted and, as part of the deal, did not prosecute McKinnon for the previous elder abuse case. The attorney representing Chattman's family in the elder abuse case said in 2007 he learned about the plea-bargain from the B.A.R. and said that the evidence in that case was very strong, as shown by the lucrative settlement the family received from the company that employed McKinnon. The lawyer declined to state the amount of the settlement.
Ober's closest friends who were witnesses in the case learned from the B.A.R. of the plea deal months after it was made. A B.A.R. reporter was also a witness in the case because of the jailhouse confession but was never informed of the plea deal, and the DA's office never returned calls asking about the status of the case. The B.A.R. learned of the deal by pulling paperwork on the case at the Hall of Justice.
At the time, Ober's friends expressed outrage over the DA's decision to drop the murder charges that eventually resulted in him being paroled in 2007 after serving five years for both crimes. (While the DA's office agreed not to prosecute McKinnon in the Chattman case, it did order him to pay restitution, though his attorney said McKinnon had no money.)
"The community should be outraged," Ober's friend Frank Franco told the B.A.R in 2005. "I don't care what the excuses are, this guy should have been brought to trial."
Ober's friend and neighbor, Stephanie Henry, told the B.A.R. in 2005, "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."
In a 2005 interview with the B.A.R., Harris said she supported the plea-bargain because she had complete confidence in the assistant district attorneys who worked on the case, Elliot Beckelman and Linda Allen. When asked about the case in a 2006 interview with the legal newspaper, the San Francisco Recorder, Harris said, "The evidence supported [a manslaughter] charge, and not a murder charge."
The San Francisco medical examiner concluded that Ober died of cutting wounds to the chest. McKinnon told the B.A.R. that he did not use a knife but declined to say how he killed Ober, whose body was found in a "near skeletal" condition. The heat in the apartment had been turned up in an apparent attempt to accelerate Ober's decomposition.
Mesloh, Harris' then-spokesperson, reiterated to the Recorder the reasons why the case against McKinnon was weak. Mesloh said that blood was found on a knife in Ober's apartment but it didn't belong to McKinnon or Ober. Mesloh added that despite his confession, McKinnon claimed he acted in self-defense and that "psychiatric issues" had been introduced.
The relevance of the knife is unclear since neither the police nor McKinnon himself has suggested that a third person was involved in the killing. Henry, the neighbor, told the B.A.R. that the blood on the knife was likely from Ober's partner, who had AIDS and died by suicide months earlier by cutting his wrists.
The psychiatric issues apparently stemmed from McKinnon's videotaped interview with police. Allen, the assistant DA who had most recently worked on the case, told the B.A.R. in 2005 that McKinnon "rants and raves" on the tape and he appeared mentally disturbed.
Franco, Ober's friend, said that was all an act to confuse the issue. He noted that McKinnon did not act crazy before or after the killing with him or other witnesses.
Allen told the B.A.R. that although the plea-bargain may be difficult for a civilian to understand, it was a best choice and that if the case went to trial, there would be a serious risk that it could end in an acquittal.
Harris is making her record as a tough prosecutor a cornerstone of her campaign for president and frequently speaks about her support of LGBTQ rights. Political LGBTQ rights powerhouses, including the Human Rights Campaign and Equality California, have strongly endorsed Harris, as have San Francisco's Harvey Milk and Alice B. Toklas LGBTQ Democratic clubs.
"VP Kamala Harris and Gov. Tim Walz are fierce champions for the LGBTQ+ community, contrasting sharply with Trump's DANGEROUS policies," stated the HRC on its website, referring to Harris' vice presidential running mate.
Banning gay-panic defense
In January 2020, a year before she was sworn in as vice president, Harris, then California's junior U.S. senator, applauded New Jersey for becoming the ninth state to outlaw so-called gay panic defenses that effectively condones violence against LGBTQ+ people when an unwanted sexual advance is made toward them. She noted her work to outlaw that defense in California.
Harris wrote, "The 'gay/trans panic' defense has been used to justify horrific acts of violence against the LGBTQ+ community. I was proud to help make California the first state to outlaw it when I was San Francisco's District Attorney and am happy to hear New Jersey is following suit. Let's ban the 'gay/trans panic' defense everywhere."
Longtime LGBTQ ally Oprah Winfrey spoke last month before the Democratic convention with a message for voters, noting Harris' "passion for justice and freedom and the glorious fighting spirit necessary to pursue that passion."
In a profile of Harris in 2005, Winfrey noted that Harris was the first Black woman elected as a district attorney in California. Winfrey called her a "superstar prosecutor" with a 90% conviction rate.
In Harris' speech at the convention, the vice president spoke about fighting for victims, and justice. She used the word justice six times.
But justice is not a word that Ober's friends used to describe how the San Francisco District Attorney's office handled Ober's murder under Harris' direction.
"If this is justice I would hate to see what is unjust," Henry said in 2005 when informed by the B.A.R. of the plea bargain.
Harris' campaign office did not respond to the B.A.R.'s numerous requests for comment.
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