Twelve people began the difficult calculus Tuesday to determine if a former Kern County Sheriff’s deputy should be executed or spend the rest of his life behind bars for killing two prostitutes.
Three women and nine men must weigh heavy moral and legal issues at the heart of David Rogers’ case, passionately litigated by some of Kern’s top attorneys for roughly a month and a half. Prosecutors and public defenders painted the disgraced man in different lights Tuesday as their closing arguments ended.
Prosecutors saw Rogers as a man who’s a liar and is unremorseful — unworthy of anyone’s sympathy, mercy or compassion. But Rogers’ public defender staunchly refuted any characterization casting her client as someone who hasn’t paid for his crimes and who isn’t unaware of the devastating impact of his actions.
“I understand that it’s a heavy, heavy responsibility,” said Chief Deputy District Attorney Eric Smith, who prosecuted the case with Kern County District Attorney Cynthia Zimmer. “... But David Rogers crossed that line and he deserves the imposition of the death penalty.”
Rogers was sentenced to die in 1988 by late Kern County Superior Court Judge Gerald K. Davis for brutally shooting pregnant Tracie Clark, 15, in 1987 and Janine Benintende, 20, in 1986. A witness recanted her testimony used by Davis to sentence Rogers to death and the California Supreme Court remanded the case to Kern to be retried.
The first-degree murder conviction for killing Tracie Clark and the second-degree murder conviction for killing Janine Benintende stand. But jurors must decide if Rogers, 76, should die or spend his life in prison without the possibility of parole.
Chief assistant public defender Tanya Richard implored jurors to be fair in their decision-making and consider evidence presented before them. The circumstances of Benintende’s death are unknown, and it’s not clear if she endured suffering during her last moments of life, Richard said, so her pain and torture painted by prosecutors isn’t supported by evidence.
Rogers denied killing Benintende in the 1980s while interviewed by deputies, but has since said he doesn’t remember what happened. Richard told jurors Rogers still testified despite saying he doesn’t remember Benintende, and admitting that to the jury. Rogers knows it appears as if he’s evasive, but had to give his own defense, Richard said.
“He admitted to a lot,” Richard said. “And, laid his soul bare for you to see, for him to be cross-examined and for him to be asked hard questions.”
That’s because for 35 years, Rogers had the time to contemplate his actions and just think — that’s a longer time than Benintende and Clark lived on earth, Richard noted. He’s a changed man, she noted, while pointing out Rogers testified about how terrible his actions were.
“How do you punish someone who knows and acknowledges,” Richard said.
This man has never been caught with pornography or suggestive pictures while incarcerated — this is a man who’s acknowledged his failures and submitted to following the rules in prison, Richard said. He didn’t die by suicide — despite a therapist testifying he made three attempts — and instead atoned for his crimes, Richard said.
Trauma affected Rogers while growing up, Richard noted. His mother experienced domestic violence, his dad beat him with a belt for no reason and he was humiliated as a child.
What you see here is a “threadbare and resigned man who does not need to be broken,” Richard said. “... Because he already is.”
And, Rogers lives out his life in a cell so small he can lie down and touch the wall with his feet. He’s lost the chance to see his family grow up, respect and liberty, she said. Punishment is for a person to think about who they hurt and the families to get justice, she added.
The “defense asks you to appreciate that he has paid,” Richard said. “The shell that sits behind me that is known as David Rogers has paid.”
Smith, the prosecutor, laid out his case during rebuttal arguments why Rogers is the “worst of the worst” — Rogers hasn’t admitted to murdering Benintende.
Another prostitute, Ellen Martinez, accused Rogers of sexual battery and reported him, leading to his firing as a deputy. Rogers hasn’t assumed responsibility for this incident either, Smith said.
It’s actually regret Rogers has spewed, and not remorse, he added. There was no remorse in his voice when deputies interviewed him about killing Benintende, nor did his actions after killing Clark indicate Rogers felt guilty, Smith said.
“He was absolutely corrupt to the bone,” Smith added.
There is a time when adults must accept responsibility for what they did and everybody has instances in their childhood that affect them, he said. There’s no mental defect in Rogers and it’s his own actions that landed him behind bars for decades, Smith added.
Rogers shot Clark, the pregnant 15-year-old, six times and didn’t use his first aid training learned through his profession to help her, Smith said.
“He gave her not one bit of mercy as she lay dying on the ground,” Smith said. “Why does he deserve yours?”
And it’s a ridiculous defense contention that Rogers lives in “hell on earth,” he said. Rogers can have visits from his family, watch TV and listen to the radio. True suffering is the fear and terror Benintende and Clark faced in their last moments, or pain their families felt, Smith said.
“David Rogers showed them no mercy,” Smith said.
But, there is good in this man, said Richard, who addressed the jury last. She recalled how his former colleagues testified that Rogers mentored and taught them. Rogers hasn’t broken the law once while serving decades behind bars, she said.
Jurors voting for Rogers to die won’t bring back Benintende and Clark, Richard said.
Richard often projected her voice around the courtroom, gesturing to Rogers or a screen showing her PowerPoint presentation. She walked around the well of the courtroom gesturing while altering the cadence of her voice.
But right before jurors got the case, Richard stood before them and softly spoke.
“We humbly ask for your mercy,” she said, directly toward average citizens holding a man’s life in their hands.
Editor's note: This story has been updated to say the first-degree murder conviction for killing Tracie Clark and the second-degree murder conviction for killing Janine Benintende stand.
