BAKERSFIELD, Calif. (KGET) — A lot has changed since former Kern County Deputy David Keith Rogers was convicted of two counts of murder.
In 1988, Ronald Reagan held the highest office in the country. The iPad only existed in the mind of Steve Jobs. Mass-produced electric cars still seemed to belong in the realm of science fiction.
And many who were alive back then have died — including multiple witnesses who testified at Rogers’ trial.
That poses an uncommon problem for attorneys now that Rogers, who was sentenced to death, is back in Kern County for a retrial on whether he will again be condemned or sentenced to life without parole.
On Monday, Judge John W. Lua granted in part a prosecution motion asking testimony of several deceased witnesses be read into evidence at the penalty phase retrial, which is expected to begin in January. Death certificates for those individuals were presented to the court.
There are others — including a forensic pathologist — who are dead but whose death certificates prosecutors have not yet received. Prosecutor Eric Smith, who is handling the retrial along with District Attorney Cynthia Zimmer, told the court they’re withholding a request to enter their testimony until receiving the certificates.
Rogers, 75, was convicted in the deaths of Janine Benintende, 20, and Tracie Clark, 15. Benintende was killed in early 1986 and Clark a year later. Both were shot multiple times.
They worked as prostitutes, which is how Rogers encountered them.
In 2019 the California Supreme Court overturned his death penalty after determining a prosecution witness falsely testified he had sexually assaulted her. The prosecution used the woman’s testimony during its closing argument in the penalty phase.
The murder convictions stand.
During Monday’s hearing, investigator David Hubbard testified to the efforts he took to find witnesses from the 1988 trial. He made use of law enforcement databases and contacted several counties, in California and elsewhere, for information or to request death certificates.
He testified he believes a woman who died in 1995 was a witness despite a slight difference in the spelling of her last name in the database. Another witness was listed as having died in 2005, and yet another as having died in Missouri.
An address in Santa Fe, N.M. was located for the man who found Benintende’s body in the Arvin-Edison canal. Hubbard testified there was no number listed but he sent a letter to the address. He hasn’t heard back.
Rogers’ attorney, Chief Assistant Public Defender Tanya Richard, criticized Hubbard’s efforts, noting there had been “ample enough time” to conduct a thorough search and do more than review databases and send letters. She’s seeking to have as many of the earlier witnesses as possible testify, allowing her the opportunity for cross-examination.
Under questioning by Richard, Hubbard testified his efforts to locate a witness who retired from the sheriff’s office did not include contacting relatives or checking to see if the person was collecting retirement benefits.
Hubbard testified he didn’t travel to Santa Fe to locate the witness who found the body, nor did he go in person to various Halls of Records for information on witness deaths, something Richard indicated could have sped up the process.
On Tuesday, jury questionnaires are expected to be completed, and a proposed trial schedule should be finished soon.
Rogers is being held at Lerdo Jail, providing Richard easier access to her client than if he was kept in a Kern County prison for the duration of the proceedings.