Criticism of judge in the killing of a Riverside County deputy not so clear, legal experts say – San Bernardino Sun

It’s every judge’s nightmare: San Bernardino County Superior Court Judge Cara D. Hutson reduced bail for a career criminal awaiting sentencing on a third strike, allowing him to secure his release and then go on to allegedly kill a sheriff’s deputy.

Riverside County Sheriff Chad Bianco lambasted Hutson after the Dec. 29 killing of Deputy Isaiah Cordero and called for the judge to resign. So, too, did Cordero’s mother, Rebecca, receiving thunderous applause at the fallen deputy’s memorial service on Friday.

“Judge Cara Hutson,” she said, “my family is devastated. My son was a good man. My family, Isaiah’s brothers and sisters and his community demand your resignation.”

Father Gilbert Cordero, left, and mother Rebecca Cordero, right, watch as the casket of their son, slain Riverside County Sheriff’s deputy Isaiah Cordero, is removed from a hearse prior to the deputy’s funeral service at Harvest Christian Fellowship in Riverside on Friday, Jan. 6, 2023. (Photo by Will Lester, Inland Valley Daily Bulletin/SCNG)

But an analysis of court documents and interviews with legal experts shows there’s more to the story.

Law experts say Hutson made a legally plausible decision to reduce bail, although probably not a practical one. And they don’t believe  Hutson should surrender her robes. They also found fault with the prosecution in the case.

‘Bad judgment call’

“It’s a bad judgment call, but not legally unreasonable,” said Rudy Loewenstein, a veteran Orange County defense lawyer and a former deputy district attorney.

Suspected gunman William Shae McKay, 44, was killed in a shootout with police after allegedly gunning down Cordero, 32, during a traffic stop in Jurupa Valley. Cordero received a hero’s funeral Friday while the public puzzled over why McKay was not behind bars under California’s “three strikes” law at the time of the shooting.

Acquitted of kidnapping

In November 2021, after a nonjury trial before Hutson, McKay was convicted of false imprisonment, making threats likely to result in great bodily injury, evading arrest and receiving stolen property, resulting in a third strike and leaving him susceptible to a sentence of 25 years to life. Hutson acquitted McKay of two more serious kidnapping charges and reduced his bail accordingly from $950,000 to $500,000 — which McKay told the judge he could not afford.

Asked by Hutson for her input, San Bernardino County Deputy District Attorney Tess Ponce offered this brief opposition: “Your Honor, I think given the change of circumstances and given — just given the stakes I was going to say no bail should be appropriate. I’ll submit to the court.”

McKay ended up making bail pending his sentencing and a motion for a new trial, but he failed to show up in October 2022 for a court date and a warrant was issued for his arrest. Before he failed to appear, McKay was arrested again by Fontana police on a drug charge, but was released after bailing out, authorities confirm. There is no law that would have prohibited McKay from being released on bond again.

$500,000 bail ‘significant’

Legal experts said the $500,000 bail set by Hutson was not inappropriate.

“The judge heard the testimony and adjusted the bail after finding (McKay) not guilty of the most serious charges, and $500,000 is a significant bail,” said Katherine Tinto, director of the criminal justice clinic at the UC Irvine Law School. “According to the transcript, the district attorney did not put up a strong objection to the $500,000 bail.”

Added Tinto: “There’s no indication the judge didn’t do what a judge is supposed to do: evaluate the facts, evaluate the criminal history and consider bail.”

Lawrence Rosenthal, a professor at Chapman University’s Fowler School of Law, also reviewed the transcript of the bail hearing, obtained by the Southern California News Group.

“All we get from the prosecution is a single sentence (opposing bail). There is nothing in the way of a coherent argument there,” said Rosenthal, a former federal prosecutor. “My overall reaction is that the prosecution’s handling of this matter was far from satisfactory. … I don’t think the judge’s handling of this was perfect, but the prosecution should have pushed the judge.”

Jacquelyn Rodriguez, a spokesperson for the San Bernardino County District Attorney’s Office, responded: “Regardless of criticism, the bottom line is we objected to the reduction of bail, we asked for no bail.”

Details of the case

According to the records, McKay was accused of kidnapping Lisa Little, an acquaintance who had bailed him out of jail previously and cooked for him occasionally.

In March 2021, Little told San Bernardino County sheriff’s deputies she was asked by McKay to house-sit and feed his dogs while he was in custody on an unrelated case.

The house was burglarized while she was briefly gone and McKay accused her of being involved. Prosecutors alleged McKay punched her in the face, took her purse, keys, credit cards and cellphone, and dragged her to his garage. He also took the car she was driving, which turned out to be stolen.

McKay tied her hands and feet with duct tape, in view of two accomplices, according to the prosecution’s presentencing report. The woman was taken to various parts of the house, while McKay and the others made purchases on her credit cards, records allege.

At times, duct tape was placed over the woman’s mouth and she was punched. She eventually broke free of her restraints and ran to a neighbor’s house, where she called police.

Later that month, the California Highway Patrol tried to pull McKay over for driving a stolen vehicle, but he led officers on a 20-mile pursuit. He and a passenger, Abrianna Valerie Gonzalez, abandoned the car when it became disabled and fled on foot, armed with knives. They were arrested after Gonzalez stabbed a police dog, which had to be airlifted to a hospital, the CHP said at the time.

Victim hands ‘not clean’

After McKay’s trial, the prosecutor disclosed that she had just discovered there was a federal indictment against the victim — allegedly for transporting fentanyl — an indictment that McKay could have used to impeach Little’s testimony. Before rendering her verdict, Hutson acknowledged that Little may not have been entirely credible.

“The Court knows that Ms. Little’s hands are not clean. I’ll just leave it that way. So she’s not an angel to this Court,” Hutson said. “That is going to be considered within the ruling and verdicts that I am going to give.”

Hutson dismissed two counts of kidnapping and kidnapping to commit rape or robbery, saying the victim was not moved a significant distance to qualify for the charges. But Hutson found McKay guilty of the other crimes.

“Here’s the problem which Mr. McKay has reiterated to the Court on more than one occasion. The way he lives his life is not necessarily the way of the legal system,” the judge said. “In this instance, the Court knows beyond a reasonable doubt that Mr. McKay decided to take matters into his own hands and dispense his brand of street justice.”

‘Not going nowhere’

McKay, acting as his own attorney, then asked the judge to reset his bail.

“I’ve learned a valuable lesson in all this. I’m not going nowhere,” McKay pleaded with the judge.

Hutson told McKay that the bail schedule for false imprisonment was $500,000.

“I will not release you (on your own recognizance) because the verdict is in and I have to always be mindful of the fact that you are still looking down the barrel of a life sentence,” Hutson told him. “And so I must keep bail at $500,000 now … because the verdict has changed, circumstances have changed and I have adjusted the bail to those circumstances.”

Hutson knew when she made her ruling that McKay had two prior strikes.

Prior strikes

The first strike was a 1999 felony conviction for assault with a firearm. He was sentenced to three years in state prison. In that crime, McKay was contacted by police during a traffic stop, but quickly accelerated to get away. He led police on a 100-mph chase, driving through a Caltrans work zone and sending crews scattering to get out of the path of his vehicle, records show.

When the car became disabled, McKay fled with a gun in his hand. After initially disobeying orders to drop the gun, McKay finally tossed it aside and surrendered to police, records show.

The second strike was related to a February 2005 attack — while he was still on parole from the first conviction. A couple was in their bed when McKay and an accomplice kicked down their door, turned on the light and began beating them with objects from the room, records state.

McKay had dated a woman who no longer lived with the couple at the residence. The attackers demanded the location of a home safe, from which they took $3,700.

McKay pleaded guilty to robbery and assault with intent to produce great bodily injury. He was sentenced to 13 years in state prison and paroled in April 2016.

Some legal experts said that, unlike Hutson, they would not have reduced bail. But the judge’s actions were legally defensible, they say.

“A half-million-dollar bail is a completely plausible bail under these circumstances,” said Stanley Goldman, a professor at Loyola Law School and a former Los Angeles County deputy public defender. “It certainly is not a cautious decision on her part, although it doesn’t sound to me like an outlandish one, although it resulted in a tragic result.”

Added Goldman: “I’m not crazy about the judge’s decision, but it doesn’t strike me as a career-ending decision.”

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