When Lenience Is Deadly

And now we know.

On July 2, after learning of this story about a robbery attempt in Newport Beach that ended in the death of a woman, I posted on X to speculate on how many prior convictions the suspects might have had, and to what degree any of them might have benefitted from Los Angeles County District Attorney George Gascón’s lenient policies.

To the surprise of no one, and I suspect to the consternation of Mr. Gascón, who is campaigning for re-election this year, it has been revealed that one of them, Leroy Ernest McCrary, has been a frequent guest at the L.A. County Jail, although, once again to no one’s surprise, not for the duration most sane people would find appropriate.

Prosecutors in Orange County, south of Los Angeles, allege that on the afternoon of July 2, McCrary, 26, and two other men, Malachi Eddward Darnell and Jaden Cunningham, both 18, drove a white Toyota Camry to the Fashion Island shopping mall in Newport Beach. Douglas and Patricia McKay, visiting from New Zealand, had finished shopping and were waiting for a ride when the Camry pulled up near them. Darnell and Cunningham, both wearing masks, jumped out and attacked Douglas, with one of them pointing a gun at him. The pair demanded Douglas’s watch, and when he refused to surrender it, they turned their attention to Patricia, who was holding several shopping bags.

Cunningham pulled Patricia into the street and threw her on the ground in front of the waiting Camry, in which McCrary had remained at the wheel. Douglas McKay attempted to protect his wife, at which time McCrary accelerated, knocking Douglas out of the way but running over Patricia and dragging her 65 feet, killing her. One of the suspects fired shots during the struggle but no one was hit. The suspects sped off in the Camry but were soon spotted by police, who pursued them into Los Angeles County and arrested all three.

The Los Angeles Times reports that McCrary was arrested in 2022 for robbing a man of his Rolex watch at gunpoint in Santa Monica. He was identified through DNA he left on the victim’s shirt, but for reasons I cannot fathom he was offered a plea deal that included a suspended prison sentence and 200 hours of community service. Even more remarkably, that sentence ran concurrently with another suspended felony sentence, this one for possessing a gun. The Orange County D.A.’s press release linked above says McCrary was also convicted of residential burglary in 2018 and of making criminal threats in 2020, both in Los Angeles County.

So here was a man with an abundantly clear criminal record indicating a trajectory toward extreme violence, yet the prison sentence he so manifestly deserved for the Santa Monica robbery was suspended, even as he served another suspended sentence for another felony.

And details about the Santa Monica case get even more curious. According to the L.A. Times story, McCrary’s plea deal was reached before the case had even reached the preliminary-hearing stage, something that would have been unthinkable during my years with the Los Angeles Police Department.

In California, a preliminary hearing is like a mini-trial before a judge, who must determine if a defendant should be held for trial. The standard of proof is lower than in a trial; prosecutors must merely prove there is probable cause that a crime was committed and that the defendant is culpable. Certain evidentiary rules are also relaxed. For example, police officers are allowed to offer hearsay testimony from victims and other witnesses, sparing them from repeated trips to the courthouse.

Gascón’s office offered the lamest of excuses for dealing case away. From the L.A. Times story:

A spokesperson in the district attorney’s office said an inability to identify the defendant in the surveillance video hampered the case. Two witnesses were unable to identify the suspects, the spokesperson said, noting that the robber’s face was not shown in the video because he was wearing a mask.

She also said that prosecutors were unable to identify the item in the suspect’s hands, and that a confirmatory DNA test was never conducted on the robbery victim’s shirt, which called into question its accuracy.

“As a result of these issues, the management team ... authorized a plea offer that allowed [him] to be placed on probation with a suspended state prison sentence,” the district attorney’s office said in a statement.

They had McCrary’s DNA, for God’s sake! As for the lack of a “confirmatory DNA test,” such tests are rarely if ever performed unless and until a case is headed to trial, this to spare resources at the crime lab. Had Gascón’s office been willing to prosecute the case as it should have been, the greenest attorney in the office could have won at trial with the evidence they had.

We have not been informed of the criminal records of McCrary’s two co-defendants. At age 18, it is unlikely their adult records are as opulent as his, but surely their juvenile records will contain some significant entries, that is if we’re allowed to see them. California law requires prosecutors to clear significant bureaucratic hurdles before presenting juvenile records in adult court, and deputy D.A.s working juvenile cases are not allowed to share information with their counterparts in adult court without permission from a juvenile court judge, a process requiring notification to affected parties and a hearing, all of which takes time and drags out an already burdensome process for victims and witnesses.

George Gascón is up for re-election in November. As election day approaches, we can be assured we’ll often hear the name of Patricia McKay, who as her husband looked on helplessly, suffered a horrifyingly gruesome death at the hands of a man who should have been locked away but wasn’t.