Trial Judge No Stranger to Controversy : Courts: Some say Thornton jurist is courageous. Others say he lets emotions influence rulings.

For maybe 15 minutes, Superior Court Judge Charles McGrath listened as the deputy district attorney pleaded with him to let a 6-year-old boy testify about his mother’s murder.

McGrath listened as the prosecutor explained why the jury needs to hear from the young son of slain nurse Kellie O’Sullivan before it determines whether her killer should live or die. To hear how she used to take him to McDonald’s, put him to bed.

The jurors should hear how the boy cried upon learning of her death and how he has nightmares that her killer, Mark Scott Thornton, will now come to harm him, the judge was told. And how the child believes that Thornton will harm his mother a second time--in heaven.

But the 57-year-old judge was also listening to other arguments. The young boy’s testimony would inflame the jurors, defense lawyers argued. And it would make it impossible to give the baby-faced, 20-year-old defendant a fair hearing.

For his part, McGrath--presiding over the biggest case of his career--made it clear he was concerned with the risk of issuing a ruling that would create grounds for an appeal. He listened to all the arguments, then rejected the prosecutor’s request.

The result of that legal battle last week was an immediate appeal by prosecutors to the California Supreme Court--an appeal resolved in McGrath’s favor, just the latest of many controversies for the judge who has spent more than two decades on the Ventura County bench.

As he prepares for the start this week of the death-penalty hearing that will decide Thornton’s fate, McGrath is being praised by some attorneys as fair-minded and courageous and denounced by others as a jurist who too often lets his emotions dictate his rulings.

McGrath would not comment for this article because of the Thornton case. But backers say he is a judge with the backbone to make sure his decisions reflect his beliefs of right and wrong.

“I think that he is a very laid-back, un-egotistical human being who doesn’t always buy into people’s arguments,” said one of his few fans in the prosecutor’s office, Deputy Dist. Atty. Matthew J. Hardy. “Judges are going to make people unhappy. That’s part of being a judge. What they need to be is consistent. I think he is consistent.”

Some others were quick to agree.

“Chuck McGrath is his own man,” said James M. Farley, a criminal defense attorney. “You can rely upon the fact that what you get from McGrath comes from him and his own personal philosophy toward life. He’s not under anyone’s thumb.”

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But his detractors say he is too quick to inject his personal philosophy into judicial work. They also say he does not always fully comprehend the law.

“He’s not a legal scholar, so he will make decisions based on gut reaction,” said one defense attorney, who asked not to be identified. “When it’s a very technical case involving intricate legal issues, you want it out of his courtroom.”

“McGrath is guided a lot by his visceral reaction to things,” said the lead prosecutor in the Thornton case, Deputy Dist. Atty. Peter D. Kossoris. “And once he makes a decision, he’s very inclined not to change it.”

The Thornton case is not McGrath’s first death-penalty trial. In the early 1980s, he conducted trials in two separate capital cases moved here from other counties, court officials said. In one, the jury sentenced the defendant to life in prison. In the other, McGrath upheld the jury’s death sentence.

But unlike those cases, the Thornton trial carries with it intense local interest. And while it will be up to the jury to recommend whether Thornton should die, it would be McGrath’s decision to impose the death penalty or not.

Thornton kidnaped Kellie O’Sullivan Sept. 14, 1993, as she left a Thousand Oaks pet store, according to testimony. He drove her to the Santa Monica Mountains and shot the woman three times after ordering her to her knees, prosecutors have theorized.

For 12 agonizing days, several hundred civilians and law officers searched the area for O’Sullivan before they found her body amid trees that formed a kind of grotto. She was still wearing her nurse’s uniform.

With defense lawyers already suggesting that publicity about the killing should dictate a change of venue in the case, McGrath was picked at random in a lottery in December, 1993, to preside over the case. It has consumed much of his time since then.

As with any death-penalty case, the judge has been confronted with a series of thorny pretrial issues to decide:

* Should the public and media be allowed to view key documents relating to evidence against Thornton, such as the transcript of the grand jury hearing in which Thornton was indicted?

No, McGrath ruled.

* Should the trial be moved to another county because of the substantial publicity?

McGrath ruled that it should not be.

* Should the jury be permitted to view four gruesome photographs of O’Sullivan’s decomposed body during the trial?

McGrath ruled against showing three of the four crime-scene photos. He ordered prosecutors to “touch up” the one picture that he allowed.

Prosecutors were generally pleased with McGrath’s rulings through the end of the guilt phase of the trial.

“I thought that during the guilt phase, on evidentiary issues, we got our fair share,” Kossoris said. “He made some calls that I didn’t like, and he made some that I did like.”

But that all changed as soon as the judge decided to exclude the victim’s relatives from testifying.

“I think that’s typical of Judge McGrath: He calls them viscerally, the way he feels,” Kossoris said.

Officials of the 2nd District Court of Appeal said they do not keep statistics on how often decisions by judges are appealed. And Wendy Lascher, a local appellate attorney, said she does not believe that McGrath’s rulings are appealed any more than those of other judges.

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A search by The Times of major rulings by the 2nd District since McGrath became a judge produced 33 published opinions on a range of controversial cases, 12 of them reversing McGrath either completely or in part. That reversal total in those cases is 36%, compared to an overall rate of 13% for state judges in 1993, the latest year for which figures are available.

Some of those cases have brought McGrath into and out of the legal spotlight over the years, including one celebrated child custody case that made him a target of women’s rights groups and led to a 1990 reversal accusing him of abusing his powers as a judge.

After a Ventura woman had received primary custody of her son in a divorce and moved to San Francisco, McGrath ordered her and the child to come back to Ventura County so the boy could be closer to his father. The judge felt that both parents needed to live in one area for the benefit of the boy, then 6.

In reversing McGrath, the 2nd District said he had no right to order Pamela Besser Theroux where to live.

“It’s unforgivable that a judge would do something that was a violation of law,” Theroux said in a recent interview. “He actually broke the law.”

Another McGrath decision that attracted heavy local attention came in 1985, when the judge signed an order that allowed lawyers for a murder defendant to conduct a property search. Search warrants usually are the exclusive province of the police--and officials around the state said that no other California judge had ever signed such an order.

McGrath also drew criticism from prosecutors in 1984 for what they considered an unusual flip-flop in the aftermath of a particularly brutal murder.

In 1984, he wrote a letter asking state parole officials to grant early release to a Simi Valley man he had sentenced to life in prison for an execution-style murder--a request prosecutors denounced as highly unusual.

“I’ve been to over 100 parole hearings, and that’s the only case I recall where a judge wrote in favor of parole,” said Deputy Dist. Atty. Richard E. Holmes, who successfully opposed the inmate’s parole bid.

A member of one of the county’s oldest and most influential farming dynasties, McGrath captured a seat on the Superior Court in 1979, five years after joining the lower municipal bench as a Republican appointee of Gov. Ronald Reagan.

Although he inherited a 225-acre farm in Oxnard, McGrath decided to go into law instead of farming.

His strengths as a judge include his decisive manner and pleasant personality, attorneys say. They describe him as almost always polite and non-confrontational.

During the seven-week guilt phase of the Thornton trial, the judge frequently laughed and joked with attorneys. Once, as prosecutor Kossoris and public defender Asher engaged in a brief argument, McGrath asked them if they might be nice enough to give him a chance at deciding the issue--drawing chuckles from the jury.

“He doesn’t blow up at some things, and that can be important because a lot of jurors think judges are perfect,” observed prosecutor Holmes.

After earning his law degree in 1964 from Loyola University in Los Angeles, McGrath finished a six-year stint in the Marine Corps Reserve and worked as an insurance adjuster before returning to Oxnard, where he went into law practice.

In 1991, McGrath told The Times that he got into law by mistake.

“My father said, ‘I don’t know if you’re going into farming or not, but you ought to have a profession to fall back on.’ ”

He and wife Beverlee, an animal lover and former Las Vegas nightclub singer, have four children. Beverlee McGrath is also a former membership chairwoman of the Republican Party in Ventura County.

Some of McGrath’s supporters say the fact that he tinges his decisions with a touch of common sense is a credit, not a drawback.

They also say he is an important force on the Ventura County bench because he is more than willing to let the county’s powerful law enforcement establishment know when it has gone too far in gathering evidence or has fallen short in proving its case.

That was the situation this month when McGrath acquitted the main defendant accused of shooting two Westlake High School football players during an after-school melee last year. He ruled prosecutors did not prove their case.

McGrath’s decision shocked the victims and their parents.

“If this is an example of justice in Ventura County, we are all in big trouble,” lamented Kathy Behling, whose teen-age son is still recovering from being shot in the back of the head.

“When this guy comes up for reelection, I hope the voters take that into consideration.”

Supporters, however, say McGrath is not in the least bothered about a possible political fallout from his rulings.

“He doesn’t feel he is beholden to anyone as a judge, and I like that independence,” said veteran defense attorney Farley. “I mean, what can you do to him anyway? If he loses his job, he will live.”

Profile of Charles R. McGrath

Born: July 6, 1937

Residence: Oxnard

Education: law degree, 1963, Loyola University Law School; bachelor’s degree, 1959, Loyola University.

Career Highlights: Claims adjuster, Farmers Group Insurance (1961 to ‘64); U.S. Marine Corps Reserve (1959 to ‘65); admitted to California Bar (1964); private practice law (1964 to ‘74); appointed to Municipal Court judgeship (1974); elected to Superior Court judgeship (1978, 1984, 1990).

Interest: horses, tennis and volleyball.

Family: married Beverlee Ellen Reed; four children, ages 22 to 30.