Jan. 24—Prosecutors often climb an uphill battle to create a bulletproof case against murder suspects, but it's a whole other ordeal with questioning witnesses who have a nearly 40-year lapse in their memory.
Kern County's top public defender and prosecutors encountered this exact challenge while retrying a decades-old case Tuesday as they struggled with an uncooperative witness and spotty recollections.
Jurors heard testimony from former prostitutes, dead individuals and former Kern County Sheriff's Office personnel in the retrial of ex-KCSO deputy David Keith Rogers, convicted in the shooting deaths of Janine Marie Benintende, 20, in 1986, and pregnant Tracie Clark, 15, a year later. Rogers' first- and second-degree murder convictions stand but, during a trial expected to last for weeks, jurors must consider either sentencing him to death or life without parole. A California Supreme Court ruling overturned Rogers' death penalty after a key witness reneged on her testimony in his original trial and the case was remanded to Kern County Superior Court.
Some witnesses couldn't quite remember minute details — such as clothing and times — but another vehemently denied ever saying what's been documented as testimony for decades in Rogers' case. A prosecutor, judge and witness reenacted motions done exactly in a 1980s trial.
Frank Bybee testified via Zoom he knew victim Benintende after meeting her at a Los Angeles County dance club and both wanted to travel east to leave California. He was one of the last people to see her alive and therefore a key witness for retracing Benintende's last steps.
Bybee and Benintende came to a motel in Bakersfield, he testified. But he had one response when asked what month they came to Bakersfield and the motel's street address.
"Absolutely not," Bybee said when asked if he remembers those details.
Prosecutor Eric Smith asked Bybee if he remembered testifying at the original 1988 trial that Benintende was wearing a rabbit-fur jacket, black pants and boots when he last saw her.
"No, I do not recall that," Bybee said.
Further problems arose when Chief Assistant Public Defender Tanya Richard asked him if he recalled testifying Benintende left their motel room to get money by working on Union Avenue.
"I never said that," Bybee vehemently said.
Richard attempted to show Bybee 1988 trial transcripts by using a camera to prove he did say Benintende went to work. But Bybee said he couldn't see anyone beside himself on Zoom. Smith also tried to show Bybee a picture of Benintende to establish he knew her, but Bybee also couldn't see the picture on Zoom.
"I did not say that, no," Bybee said again when asked a similar question by Richard. "No, I didn't say it then, and I am not saying it now."
Bybee continued to interrupt Richard's questioning, which led to Lua twice reminding him to only talk when answering a question posed to him.
Another instance of a memory lapse arose with the testimony of Joyce Murphy, who worked as a prostitute on Union Avenue in the early 1980s.
Murphy testified via Zoom from Arizona how she met a man identified only as David and went on dates with him several times as a sex worker on Union Avenue in the 1980s. She testified David was pictured in the newspaper when it printed a story about Benintende and Clarks' murders. A photo of that same man was shown to Murphy and her friends by KCSO detectives investigating Rogers, Murphy testified when questioned by Smith, the chief trial deputy.
But Richard attempted to poke holes in Murphy's testimony by implying Murphy's client named "David" may not be the man who sat in court Tuesday dressed in orange jail clothes. Murphy testified she didn't know David's last name or that he was in law enforcement while the two spent time together. Murphy said she thought she saw Rogers once at a donut shop in a deputy's uniform before going on dates with David but he convinced her it wasn't him and that he worked as a taxi driver.
"Back then, my life wasn't together, you know," Murphy said. "... You try to block all this out. Thirty-five years later, you get a phone call (to testify)."
Murphy couldn't remember exactly how old she was when involved in sex work when asked by Richard, and estimated it was between 28 to 34 years old.
"That's a big range, Ms. Murphy," Richard said, while trying to get her to be more specific.
Murphy said she understands but that she honestly couldn't remember. Richard nudged her again: "Were you over 30? That's sort of a mark in a woman's life."
But Murphy still couldn't remember: She testified if she could remember, she would say so.
When asked to describe body hair on David, Murphy testified he had some over his arms, legs and chest.
"I think," Murphy added as she finished. "I cannot be sure, it's been so long ago."
Some witnesses are dead now. That led Smith to call upon deputy district attorneys and investigators to read through testimony from the original 1988 trial. Smith read direct and cross examination by attorneys who tried the case at the time, with Smith's colleagues reading the answers back to him aloud.
During one such interaction, deputy district attorney David McKillob read aloud testimony from Jerry Roper, who was with the KCSO technical investigations department.
"Yes, ma'am," McKillob would respond when Smith asked questions, even though Smith is male. The reenactment was an effort to stay true to what happened in 1988 when a female deputy district attorney prosecuted the case.
McKillob testified that Roper didn't work the crime scene where Benintende was found, but went to the post-mortem examination of the 20-year-old. Two bullets were removed from Benintende's body.
Just like in 1988, McKillob took out bullets from it's box — exactly as Roper would have done, by wearing blue surgical gloves, and showed them to the jury. Lua read aloud statements the judge made when presiding over Rogers' original trial to explain Roper's actions for those reading in the future.
And, Smith read, defense attorney Eugene Lorenz had no questions to Roper's testimony.
Witness testimony is scheduled to continue Wednesday.
Ishani Desai can be reached at 661-395-7417. Follow her on Twitter: @_ishanidesai.