Man remains in jail 6 years without conviction

Warren McClinton has been behind bars for six years without being convicted of a crime.

Back in 2009, a judge threw out an indictment against him because prosecutors failed to introduce certain evidence to a grand jury in a sexual assault case.

What they didn’t reveal: DNA from two other males was found on the victim’s bedsheets in her North Las Vegas home, where the crime was alleged to have occurred.

The 14-year-old girl was the only person who initially testified before the grand jury. When prosecutors went to the same grand jury a second time, they called the victim, her mother and a detective to testify. McClinton also decided to take the stand.

The panel, which also heard the DNA evidence, deliberated for 30 minutes and refused to indict him.

He was briefly released from jail, but prosecutors quickly presented new charges to a judge who decided that there was enough evidence to take the case to trial.

McClinton was charged with four counts of sexual assault with a minor younger than 16, three counts of open or gross lewdness and one count of battery with intent to commit sexual assault.

He sat in jail while his case worked its way through the system. Over the years, he has fired nine lawyers, which is part of the reason his case has lingered so long.

Prosecutors objected when defense lawyers said they wanted to present the DNA evidence at McClinton’s trial late last month.

“The only conceivable reason to present such evidence would be to make the victim look bad in the eyes of the jury,” prosecutor Jim Sweetin wrote. “This is the very thing rape shield laws have been established to prevent.”

Rape shield laws limit the ability of defendants to introduce evidence of victims’ sexual history.

District Judge Eric Johnson ruled that the jury would not hear the DNA evidence.

Yet after more than a week of testimony and 2½ days of deliberation, jurors acquitted McClinton on one of the sexual assault charges and said they were deadlocked on seven other counts.

The judge refused to release McClinton, now 48, from custody. He must remain behind bars, as prosecutors are expected to let the judge know this week that they will continue pursuing the seven counts on which the jury could not agree.

McClinton’s latest defense lawyer, Ozzie Fumo, said the sexual assault simply did not happen. There was no physical evidence of a struggle, he said. The teenage victim concocted the attack to get McClinton, who was engaged to her mother, kicked out of her house, according to the defense attorney.

Prosecutors argued that McClinton’s DNA was found on the victim’s underwear, but Fumo said skin cells could have been transferred from a phone or onto clothes washed together.

Prosecutors said the girl’s details about what happened on Aug. 1, 2008, have stayed consistent since she first told her mother.

Fumo disagreed, and said the one incident is the only time the girl accused McClinton of touching her.

McClinton treated the girl like his own daughter, his lawyer said, and became upset when he learned she was having sex with an older teen. When McClinton threatened to call police on her boyfriend, the girl turned the tables, according to Fumo.

“The truth exists, but lies are invested,” Fumo said. “And this girl is vested in her lies. She can’t change her story now.”

In multiple attempts, through several different attorneys, to get a judge to reduce his $130,000 bail, McClinton pointed to the grand jury that refused to indict him.

Prosecutors argue that McClinton, who uses multiple aliases, including Warren Mack and Ronney Gill, four Social Security numbers and three dates of birth, is a flight risk. He’s been charged in Nevada, Illinois and Virginia with various crimes, such as domestic battery, driving under the influence of alcohol and unlawful possession of a firearm. He’s failed to appear in court 39 times, prosecutors said.

Defense lawyers and prosecutors disagree on whether a Virginia conviction against McClinton more than 25 years ago was a misdemeanor or a felony.

For a few months in early 2009, after his family posted $87,000 bail, McClinton was out of jail. But he missed a court appearance, then showed up late for the next, and a judge ordered a higher bail.

Later that year, after the grand jury declined to indict him in the sexual assault case, prosecutors alleged that McClinton locked a woman out of her room at O’Sheas and stole $5,500, but the case was later dismissed when prosecutors said they would have trouble reaching the woman for a preliminary hearing.

McClinton said he could not have committed the crime because he was in the Clark County Detention Center at the time, awaiting trial.

Asked whether the judicial system has failed McClinton, Fumo replied, “Absolutely.”

“He’s not just not guilty,” the lawyer said. “He’s innocent.”

Around the same time as the alleged incident at O’Sheas, McClinton’s lawyer told a judge that the defendant had been “under the state’s prosecutorial thumb throughout three attempts at the justice system” and that continuing to prosecute him “flies in the face of justice.”

In the nearly six years since, prosecutors have offered McClinton several deals, one of which meant he would serve five years to life in prison. After jurors said they were deadlocked at trial late last month, prosecutors came back with a new offer: Plead guilty to two counts and receive two to 20 years in prison.

McClinton declined.

Fumo said his client is “extremely frustrated.”

Before he was locked up, McClinton worked as a singer in downtown casinos and helped a friend lay carpet and paint. If offered a chance at release, he might stay with family but is unclear what he would do for work.

McClinton was perplexed in 2013 when the Nevada Supreme Court dismissed his request to throw out the charges. The court said the case was not “ripe” because the evidence had not been presented at a trial, Fumo said.

“In his mind, the case has been dismissed now three times,” Fumo said. “For him it is ripe. It’s his life. It’s his liberty.”

Contact reporter David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Find him on Twitter: @randompoker