After more than a decade in prison, a death row inmate is getting a second chance to defend himself. Timothy McKinney was convicted of killing a Memphis Police officer on Christmas in 1997. Wednesday, that conviction was overturned.
Nearly twelve years ago, Don Williams was a respected veteran of the Memphis Police Department and a faith-based, hard working father of three taking an off-duty security job at a Frayser nightclub.
His sister-in-law sadly reflected, "It's a sign of the times. He was trying to take care of his family."
Then, at age 23, with a juvenile rap sheet and a previous conviction on an aggravated robbery charge, Timothy McKinney was himself a troubling sign of the times. One who prosecutors at his murder trial, alleged was ordered by Williams to leave Crumpy's Comedy Club only to return minutes later armed and ready for a fatal round of retribution.
On the stand in 1998, a seething prosecutor sarcastically asked McKinney, "You're not the one that snuck up behind him and pulled the trigger five inches from his face? No, Sir!"
However, after twenty-one months of consideration, a procedural ruling issued this week by the Tennessee Court of Criminal Appeals has taken a case, thought to be dormant with McKinney's conviction and sentencing to Death Row on a first degree murder charge and given it possible new life in the court system and the public eye.
The three judge panel decided to not only reverse a post-conviction court decision, but also vacate McKinney's conviction and remand the trial court for a new trial for the alleged shooting of Williams. The judges based the stunning turnaround on alleged "errors" committed by McKinney's trial counsel, first exposed by investigators hired to work with them to mount a defense for McKinney.
The case is now being spearheaded by the powerful New York law firm of Davis-Polk and Wardwell, who contend the "key" eyewitness testimony of one witness should have been, but wasn't challenged on the stand.
Tom Noon, the executive with the law firm explained, "The court found that their cross-examinations of Frank Levy, the only witness to identify Tim McKinney, was constitutionally deficient. He substantively gave different descriptions of the shooter. Some of this information was available to them and known to the trial attorneys."
Noon concluded, "[McKinney's lawyers] didn't use the information they had available to them and they didn't aggressively and zealously pursue the information that ultimately was there."
Courtney Howard, who also worked on the case, asserted, "A lot of information that was available and that they should request from the prosecution. They, meaning the trial counsel. That trial counsel did not request."
But, Shelby County Assistant District Attorney Tom Henderson says the Appeals' Court ruling doesn't necessarily ensure a new trial for McKinney.
Henderson noted, "There's still a possible appeal to the Tennessee Supreme Court. We'll be consulting with the Appellate Division in the State Attorney General's Office concerning that."
Henderson concluded, "One of the saddest things about these things is that it does reopen all the wounds for the survivors of these homicides. And it's difficult to explain to them, other than tell them, we'll always be here and we'll always be behind them."