High Court Is Asked to Allow Testimony of Slain Woman’s Kin

Appealing directly to California’s highest court, prosecutors Thursday sought to overturn a Ventura County judge’s ruling that bans testimony from relatives of slain Westlake nurse Kellie O’Sullivan at her killer’s death-penalty trial.

In its emergency writ, hand-delivered to the state Supreme Court in San Francisco on Thursday afternoon, prosecutors asked that Superior Court Judge Charles R. McGrath be directed to change his ruling before jurors decide whether convicted murderer Mark Scott Thornton should live or die.

Last week, McGrath prohibited prosecutors from calling as witnesses O’Sullivan’s 6-year-old son, her mother and other family members and close friends. Her son, in particular, was expected to deliver powerful, heart-rending testimony.

The decision by the county’s most experienced judge outraged prosecutors, who argued that such victim-impact evidence has been routinely introduced at California death-penalty trials since 1992.

The 57-year-old judge abused his power and based his ruling on his “own personal philosophical views,” Dist. Atty. Michael D. Bradbury argues in the document.

McGrath, a judge for 21 years, declined through a spokeswoman to comment. The penalty hearing is scheduled to start Monday and is expected to last about five weeks.

Prosecutors said it is imperative that they be allowed to put the family members on the witness stand.

“This is a critical issue in a critical case,” emphasized Chief Deputy Dist. Atty. Ronald C. Janes.

Thornton’s legal team disagreed and predicted the Supreme Court justices will quickly dispatch the writ.

“We think they are way out on a limb on this,” Deputy Public Defender Bryan Villagran said of prosecutors.

He said McGrath was well within the boundaries of his judicial discretion when he chose to deny the request to allow relatives of O’Sullivan to testify at the death-penalty hearing. Villagran also noted that the judge has not shut the jury off from all personal information about the victim.

McGrath agreed to allow prosecutors to show the jury two photos of the victim, including one with her son, in the penalty hearing. During the seven-week guilt phase in which Thornton was convicted of first-degree murder, the judge allowed O’Sullivan’s fiance to testify that she was a parent, worked as a nurse and enjoyed scuba diving, marathon running and other outdoor activities.

Considering that testimony, McGrath is not guilty of excluding evidence about the victim’s background, as prosecutors are alleging, Villagran said. “But they want the whole enchilada,” he said.

Thornton kidnaped the 33-year-old nurse outside a Thousand Oaks pet store Sept. 14, 1993, and later shot her three times. Her badly decomposed body, still clad in a nurse’s uniform, was discovered in the Santa Monica Mountains 12 days later.

Several local lawyers said it is not clear if the Supreme Court will refer the matter to the lower 2nd District Court of Appeal, the venue where prosecutors would have normally gone to get a ruling overturned.

Wendy Lascher, a Ventura appellate attorney, criticized the district attorney’s office for circumventing the Ventura-based appeals court. “It’s a bit of a power play,” said Lascher, who practices criminal defense.

But prosecutors said the Supreme Court has jurisdiction over death-penalty cases--although Lascher said that is only true after a defendant has been sentenced to death.

“They ought to reread the Constitution,” she said.

Lascher and others said prosecutors might have avoided the three-justice appeals panel because it dismissed burglary charges against an Oxnard man last month after concluding that a prosecutor eavesdropped on him and his attorney.

Prosecutors have worked feverishly to prepare their writ since McGrath ruled against them Jan. 13. On Thursday, once the legal brief was completed, a district attorney’s investigator flew to San Francisco and personally filed it with the high court.

In the writ, prosecutors argue McGrath should have allowed them to put on the testimony of four O’Sullivan relatives and friends: Cliff O’Sullivan Jr., her son; Cliff O’Sullivan Sr., her former husband; Charlene Cunningham, her mother; and Kevin White, her fiance.

The boy’s testimony would appear to be the most dramatic.

According to the writ, he would recall learning of his mother’s death during a trip to an ice-cream store with his father. They both cried that day, he would testify.

He would also say that he fears Thornton will “go to heaven in order to hurt his mother a second time.”

And he would tell the jury about seeing a gunfight in the movie “Wyatt Earp.”

According to the writ, he turned to his father and asked: “That’s how Mommy died, isn’t it, Daddy?”