Are Memphis Prosecutors Trying to Send an Innocent Man Back to Death Row?
On Christmas night, 1997, Crumpy’s Comedy Club in North Memphis hosted a party sponsored by a local barbershop, Magic Clippers. The club had opened that spring, attracting popular black comedians like Bruce Bruce, D.L. Hughley and Earthquake. That night, hundreds of revelers came for jazz, blues and stand-up, and the celebration went long past midnight.
But it would end in tragedy. By dawn, a Memphis police officer lay in critical condition, paralyzed by a bullet fired into his neck. Donald Williams, an African-American father of two, was assigned to area schools; that night he was off duty and working as a security guard, when at 2:30 am he was shot at close range in front of the club. Doctors said he would never walk again; community members pitched in to cover his hospital bills, and “one business planned to refurbish his home to accommodate a wheelchair,” according to The Commercial Appeal. But just over a month later, on January 29, Williams died of pneumonia due to complications from his wound. He was 38 years old.
Williams’s death shook the community, particularly Donald Crump, the owner of Crumpy’s. Crump, who also owned a hot wings chain, collected donations at his restaurants and sent food to Williams’s family. “He wasn’t just a guy doing security for me,” he said. “He was a personal friend of mine.”
Around 1 am on the night of the shooting, Crump had ordered a drunken man out of the club. Williams wanted to have him arrested, but in the Christmas spirit, Crump said, he convinced Williams to let him go. Later, Crump was told that this was the man who’d shot Williams. “And I said, ‘If I had just left him alone, stayed my butt out of it, Officer Don would still be alive.’”
Williams was still alive on December 27, when Crump received word that police were arresting the shooter near the South Memphis restaurant where he was working. “I said, ‘Well, I’m on my way.’” A SWAT team had an apartment complex surrounded, and reporters were on the scene. But when he saw the man being taken out in handcuffs, Crump didn’t recognize him. Concerned, he told a police officer this wasn’t the man he had thrown out that night.
Fifteen years later, it still nags at him. “I don’t know who fired the shot,” Crump says, wearing a faded Crumpy’s Hot Wings T-shirt and a weary expression. “But I put one person out of that club. And they said the person I put out of the club was the one that shot and killed Officer Don. But when they brought [the man] out of the house, he wasn’t the guy.”
Crump was never interviewed by police. He still doesn’t know why. But “when it’s a police officer killed here in Memphis, you know, they quick to nail somebody.”
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The man in handcuffs was 23-year-old Timothy Terrell McKinney, on parole for armed robbery, who’d had a hostile exchange with Williams that night. McKinney couldn’t find his car and became convinced that it had been stolen or towed. (In fact, a friend had moved it.) Enraged, he threatened to “blow up” the club, according to Williams’s partner, but eventually he found his car, apologized and was told to leave. Later, he returned. Another police officer, Ronald Marshall, was on duty and was called to the scene. He put McKinney in his squad car, taking his name, address and date of birth before letting him go. A slip of paper with that information was later retrieved from Williams’s bloody jacket.
Police put out a call for McKinney, describing him as an armed black man with a medium to dark complexion and driving an Oldsmobile, which “may possibly have bullet holes.” The car would later be found‚ without bullet holes but with the license plates removed, heightening suspicion of his guilt.
McKinney was tried in 1999. He refused to plead guilty to avoid the death penalty. Jurors deliberated for just over two hours before convicting him. “I would ask the jury to spare my life so I would be able to prove my innocence,” he said before they condemned him to die. Shelby County Assistant District Attorney Jerry Harris said that McKinney “would squeeze off a round into Mother Teresa.”
But in the years that followed, proof emerged that Harris had suppressed evidence that would have cast doubt on McKinney’s guilt—and he’d done so with the complicity of McKinney’s own defense attorney. After ten years on death row, with the help of New York law firm Davis, Polk & Wardwell, McKinney saw his conviction overturned on the grounds that he had had inadequate defense counsel. The appeals court found that the proof against him at trial “was not overwhelming,” and that his attorneys’ failures had “rendered the entire proceeding fundamentally unfair.”
But no sooner had McKinney been ordered off death row than the Shelby County DA’s office announced its intention to send him back. It was a dramatic move: of thirty-eight Tennessee death sentences overturned on the same grounds, most have been settled with a lesser sentence. But Shelby County prosecutors have a record of resisting such settlements. Indeed, veteran Shelby County prosecutor Thomas Henderson re-convicted a man named Richard Austin in 2001, resulting in a second death sentence. (Austin died of natural causes at 68, the oldest man on Tennessee’s death row.)
Today, Henderson is prosecuting McKinney. His first attempt to re-convict him, last April, ended in a hung jury. This April, Henderson will try again.
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A white-haired firebrand of a lawyer, Henderson comes from the same generation of prosecutors as Jerry Harris, who sent McKinney to death row. In a fawning 2003 profile in The Commercial Appeal titled “Best in the Business,” Henderson is depicted as a swashbuckling crusader for justice who “wears his tough-guy image like a badge.” Harris, who worked with Henderson for decades, called him “relentless,” saying: “He once tried a weeklong case over an $8 credit-card fraud…like a murder case.” Twice, the profile marveled, he won murder trials in cases where no victim’s body was found.
In at least one of these cases, Henderson has been caught suppressing evidence, as Harris did in McKinney’s first trial. Last fall, a judge found that Henderson made “blatantly false” statements denying the existence of exculpatory evidence in the case of death row inmate Michael Rimmer, according to USA Today reporter Brad Heath. (Such lies are “typical” of Memphis prosecutors, a federal judge said in 2008.) In a pending bar complaint obtained by The Nation, Rimmer’s post-conviction attorney, Kelly Gleason, identifies other capital cases in which Henderson has hidden such evidence. Shelby County, which is responsible for more than a third of the state’s death sentences, has “vigorously defended the misconduct and continued to permit [him] to try capital cases,” she writes.
Like Rimmer’s case, McKinney’s lacks key physical evidence. No gun was ever found. No blood was discovered on McKinney’s clothes. His car was sold at police auction two months after the crime, before it could undergo forensic testing.
The case against McKinney hinges on eyewitness testimony—evidence whose extreme fallibility has become well-known since he was first convicted. Last year, Supreme Court Justice Sonia Sotomayor called it “staggering” that eyewitness misidentification was responsible for 76 percent of the first 250 wrongful convictions overturned through DNA.
As McKinney goes on trial for a third time, the most pressing question apart from his guilt may be whether, in Shelby County, innocence matters. Says Gleason, “It’s very easy in Memphis for an innocent person to get convicted and not get released.”
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Timothy McKinney’s family says he was in good spirits on Christmas Day, 1997. It was his first holiday after four years in prison, and he had vowed never to return. His older sister, Marie, says he “kissed the ground” after coming home. He found a job with a fencing company, bought a car and got an apartment. “He was a totally different person,” she said. McKinney had celebrated Christmas at her house before heading out to the party at Crumpy’s.
A Polaroid taken at Crumpy’s shows a smiling McKinney wearing dark pants, a black fedora, a gold/brown vest, and a loud patterned sweater with red, gold, black and white stripes. Along with his car, the sweater, vest and hat would later be found at the home of Debra Kimble, a woman he was dating. McKinney says he was there, four miles from Crumpy’s, when Williams was shot. He and Kimble were supposed to meet that night, but he didn’t arrive at her home until 2:15 or 2:20 am, according to Kimble’s early statements to police. Before the 1999 trial, Kimble told defense investigators that she woke up, went to the door and argued with McKinney for about twenty minutes, sending him to sleep on the couch. This account alone could have provided McKinney with an alibi, since Williams was shot at 2:30. But there’s reason to believe that McKinney arrived at Kimble’s even later than she estimated. Police logs show that Marshall, the officer who put McKinney in his squad car, got to Crumpy’s after 2:01—making it impossible to believe that he was detained and questioned, then drove to Kimble’s, argued with her and returned to Crumpy’s to shoot Williams by 2:30.
But prosecutor Jerry Harris never turned over the police logs to McKinney’s original defense team, allowing the state to present a manipulated timeline of events at trial. The time of the shooting was pushed later, and Marshall claimed to have detained McKinney much earlier. Most devastating for McKinney, Kimble became a witness for the prosecution, abandoning her twenty-minute estimate and testifying that she’d “fussed” at McKinney for “a couple of minutes, maybe.” A police officer testified that he’d driven from her address to Crumpy’s in just four and a half minutes. The resulting timeline was still a stretch, but it was not physically impossible.
The prosecution’s case turned, however, on two eyewitnesses. One was a woman named Joyce Jeltz, who saw the shooting as she left Crumpy’s. The other was Don Williams’s partner, Frank Lee, also an off-duty officer, who said he saw McKinney “eye to eye” before chasing him into an alley and exchanging gunfire with him before he drove off.
At the police station at 5:10 am, Jeltz said the shooter wore brown pants and a “dark color knit turtle neck sweater pulled over his nose and mouth.” After seeing a photo spread later that morning that included McKinney, she stated: “I cannot identify the suspect at this time.” The next day, she did not identify anyone but picked photos of McKinney and another man as looking like the shooter. She said she recognized McKinney because she’d seen him on TV.
A year and a half later, at the 1999 trial, Jeltz’s description changed. She was uncertain about the turtleneck and introduced a new item: a brown vest that matched the one McKinney wore that night. Jeltz had previously denied the shooter wore a vest; on the stand, she admitted that prosecutors had shown it to her that morning. The vest became critical, with a forensics expert testifying that it was found to contain particles consistent with gunshot residue.
Frank Lee’s description also changed between the shooting and the first trial. At 2:36, moments after pursuing him, he radioed in a description of the shooter as wearing a white cap, black shirt and black pants. But soon thereafter, he insisted the shooter was the man who had been ranting about his car. On the stand, Lee said he wore the “same sweater” he had seen on McKinney earlier that night, along with an “orange bandana around his mouth.”
Jurors at the 1999 trial never heard Lee’s first description of the shooter. Nor did they know about Jeltz’s and other witnesses’ failure to identify McKinney in photo arrays. Prosecutors concealed these, along with other statements, including wildly disparate descriptions of the shooter’s outfit, ranging from a black turtleneck and a long, white coat to a blue shirt and jeans.
In his closing statements, Jerry Harris emphasized Frank Lee’s claim that only McKinney had a motive for harming Williams, since there hadn’t been “a single other altercation” that night. But this wasn’t true, as Donald Crump had tried to tell police. What’s more, one week after the shooting, a woman named Angela Tucker told police that she’d heard about another man “bragging…that he shot Officer Williams.” This man was Patrick Johnson, from the same neighborhood as McKinney, with a history of violence, and who had just left prison.
Police made some attempts to contact Johnson but never followed up, even as rumors persisted that Johnson had boasted about “the cop getting what he deserved,” as a woman named LaQuita Williams told a defense investigator in the summer of 1998. At a post-conviction hearing in 2006, numerous people implicated Johnson, including a man who testified that two days after the shooting, Johnson “said Tim didn’t do it…and then he said he did it and just laughed like it was a joke.”
But the state could not have railroaded McKinney without his own lawyers, particularly lead attorney Jim Ball. Internal memos from 1998 and 1999, produced by Inquisitor Inc., the investigative firm assigned to aid the defense, reveal growing alarm at Ball’s lack of preparation as McKinney’s trial approached.
The president of Inquisitor is Ronald Lax, a veteran investigator best known for helping free the West Memphis Three. (Lax will be played by Colin Firth in an upcoming film about the case.) As his firm chased down exculpatory leads in advance of the 1999 trial, Lax repeatedly urged Ball to obtain police logs and witness statements from the prosecutors. Ball responded that he “believed in ‘picking (his) fights’” and that Jerry Harris would not withhold exculpatory evidence, since the two were “very good friends.”
In fact, unbeknownst to Lax, four months before trial, Ball and Harris had struck a highly unorthodox deal. In a consent order signed January 4, 1999, Ball agreed not to pursue evidence Harris claimed had no exculpatory value, including witness statements and “police reports, call sheets and log reports regarding the activities of the officers on the night of the murder.”
The consent order was the nail in the coffin for McKinney. As his trial began, Lax tried in vain to convince Ball to call witnesses for the defense. On July 15, two days after his twenty-fifth birthday, McKinney was convicted of first-degree murder. Harris implored the jury to sentence him to death. The judge set an execution date the next day, telling McKinney that on New Year’s Day, he would be “shocked by a sufficient current of electricity until you are dead and may God have mercy on your soul.”
McKinney was given two more execution dates, in 2002 and 2003, before his conviction was overturned in 2010. He has been at Shelby County Jail ever since.
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I visited Memphis this past February, two months before his third trial was scheduled to start, and drove to the Skylake Shopping Center, where Crumpy’s once stood. Donald Crump closed the club after the shooting—“I just couldn’t go there and laugh”—and today it’s a laundromat called Paradise Cleaners. It was Super Bowl Sunday, and the roads were empty; I entered Debra Kimble’s address into my GPS and took the fastest route, driving above the speed limit. It took six minutes and forty-five seconds. The way back took just over six minutes. Investigators at Inquisitor say they have done the drive in six to seven minutes. Five minutes would be “breaking all kinds of laws,” one investigator told me. Four and a half? “Impossible.”
I met McKinney at Shelby County Jail, just as the Super Bowl was getting under way. We spoke via fourteen-inch video monitors behind a dirty glass screen. Visitors sit on metal stools nailed to the floor, in numbered booths carved with graffiti. After thirty minutes, the screen goes dark.
McKinney is bald, with a mustache and an easy smile. He was polite and affable, often turning to greet the men on his side of the glass. At 38, McKinney is considered an “old-timer.” “They call me ‘Unc,’ for ‘uncle,’” he explains. “Or ‘Old School.’”
The past fifteen years have been an “emotional roller coaster,” he says—for him and the Williams family, too, he always adds. While he was on death row, Tennessee executed six people, one in the electric chair. That’s when “reality sets in that they are murdering another human being under the pretext of justice…and you could be next,” he says. As a form of “meditation,” he would paint luminous acrylics on canvas panels, some of which I saw at the Virginia home of his longtime pen pal, Katharine Smith, one of numerous advocates who believe he’s innocent. A portrait of Barack Obama deftly renders his features; a fiery sunset painted for Smith’s birthday in 2005 shows waves crashing ashore. But at Shelby County Jail, painting is forbidden. So McKinney spends a lot of time worrying about his case. He’s aware of Henderson’s “antics” and believes the judge, who is black, is biased against him: “He’s a former prosecutor himself.”
“I’ve got nothing to hide,” McKinney tells me. He says he was still at Kimble’s on December 26 when several people paged him to say they had seen reports about him on TV. His mother said police came and told her she’d better hope he would turn himself in before they found him on the street. “I was scared as hell,” he says. “Everybody in the streets know the police don’t play fair.” He took the plates off his car and started looking for a lawyer. He says Kimble drove him around, helping him evade police. After he was arrested, she too was handcuffed and brought to the station. McKinney doesn’t know why she turned state’s witness, but believes she wanted to disassociate herself from him.
McKinney offered to turn himself in but never followed through. He was at his cousin’s apartment the day police found him, refusing to open the door until his father knocked. McKinney says he told his family he wanted the media there to make sure there were plenty of people watching the arrest.
News reports from that year suggest he had reason to be afraid. In July 1997, months before McKinney was arrested, an unarmed black teenager named Rodie Dale Gossett was shot in the back of the head by a white police officer not far from Crumpy’s. The killing sparked outrage, and the local NAACP called for a federal investigation, citing other police shootings. Months before McKinney’s trial, the officer who shot Gossett was tried in Shelby County. Representing the state were Jerry Harris, the same prosecutor who would soon send McKinney to death row, and Assistant DA Lee Coffee. Coffee was later elected as a Shelby County Criminal Court judge. He presided over McKinney’s trial last year and is poised to do so again this spring.
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In April 2012, McKinney went on trial for the second time. Thomas Henderson represented the state, along with prosecutor Alanda Dwyer. Thirteen years after the first trial, the prosecution’s key witnesses changed numerous details of their testimony. Joyce Jeltz said she looked the shooter “in his eyes” and, despite having long insisted he wore a dark top, described him in a “multi-colored sweater.” Frank Lee, retired from the police force, said the shooter wore a black T-shirt. Of his previous description of a colorful sweater, he said, “I don’t know if I made a mistake or they typed it wrong.”
On April 13, the defense called a surprise witness: Lester Bibbs, a comedian who remembered McKinney from Crumpy’s. He had mocked his “ugly sweater” onstage, making him laugh. Bibbs also remembered another man, a belligerent drunk wearing a dark sweater and dark pants, who got in his face, threatening him. “He said, ‘I will eff you up,’ basically,” Bibbs said. Officer Williams and others forced the man outside. According to Bibbs, the man said, “Ya’ll got me effed up. I’ll be right back.”
Later, Bibbs was in a car outside when he saw someone who resembled the drunken patron approaching Williams. “As a matter of fact,” Bibbs recalled telling his companions, “that is the MF that they threw out.” Bibbs said he heard a “pop,” then saw the man running away. He left quickly to catch a 6 am flight back home to Los Angeles. Later, he heard the shooter had been caught. “I didn’t follow up,” Bibbs said.
Cross-examining Bibbs, Dwyer seized on inconsistencies in his statements to defense investigators as well as the fact that Bibbs had been smoking marijuana. Checking Twitter the next day, Bibbs saw a reporter tweet from court: “Prosecutor Henderson says testimony about seeing another shooter is from a drunk/high witness.” Bibbs fired off tweets in his own defense, adding: “I know WTF I saw & its not who they say it is.”
On April 16, 2012, Judge Lee Coffee declared a mistrial. Word spread that one person hung the jury; everyone else had wanted to convict McKinney.
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I met one of the jurors who wanted to convict at a Starbucks in the affluent suburb of Collierville, which is 80 percent white. It is a sharp contrast to Memphis, which is predominantly black. Other aspects of the racial divide in the city are similarly jarring. That week, the City Council voted to rename three public parks, one of which had been named after the first grand wizard of the Ku Klux Klan.
The juror wore a cashmere cardigan and fine jewelry. She had agreed to meet on condition of anonymity and remained upset about the mistrial. In her opinion, “the lone person that hung the jury felt like it was a race thing,” which she found “maddening.” “It was a black judge,” she said, adding that the state’s “star witness,” Frank Lee, was also African-American.
The juror, whose father had been a Shelby County sheriff’s officer, acknowledged that police “look after their own.” She said the cops had done “stupid things with the evidence,” like tossing McKinney’s clothes on the floor at the precinct, where they could have picked up gunshot residue. “I think it’s possible that the police skewed things,” she admitted. Nevertheless, “I kept coming back to the fact that Officer Lee identified Mr. McKinney as the person that shot his partner.” As for comedian Lester Bibbs, he was “a dope addict who was higher than a kite,” she said. “Like I’m gonna believe him over the police officer? I don’t think so.”
She also noted something “interesting” about Judge Coffee, who met with jurors after the trial. “My question to him was, ‘Are eleven of us wrong?’” In response, “He said, ‘No. If I had been in the jury room, I would have felt like Mr. McKinney was guilty.’ So I don’t even know if the same judge is gonna try the case again. Obviously, he could not say that from the bench.” Another juror I spoke with, who also wanted to convict, came away from that meeting believing “even if we had found [McKinney] not guilty, the judge would have overturned it” (something a judge cannot do). He added, “I don’t know if he wants this known or not.”
In an e-mail to The Nation, Coffee said, “I never comment about the propriety of a jury’s verdict.” Doing so would violate the Tennessee Code of Judicial Conduct, which states: “A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion.” If meeting with jurors after a trial, judges “should be careful not to discuss the merits of the case.” If Coffee did make such remarks, Vanderbilt law professor Terry Maroney believes they may be grounds for recusal in McKinney’s case. “The judge has affirmatively broadcast his view of guilt even though the jury split,” she explained.
Just over a month before McKinney’s third trial was set to start, I spoke with two more jurors. The first, who served on the second trial, said that, in fact, two people had been unconvinced about McKinney’s guilt. “I was one of those people,” she said.
Under pressure, the other person capitulated, but this juror refused. Other jurors pointed to the fact that McKinney hid from police, but she said she found the conflicting witness statements and Lester Bibbs’s testimony more compelling. After all, she said, in some black communities, people don’t trust the police. “I know a guy whose brother was shot and killed by police,” she said. McKinney probably “feared for his life.”
“I’m sorry for the policeman,” she said, adding that she would not have had a problem imposing a death sentence if she believed McKinney was guilty. “It just wasn’t proven to me. And I don’t want to say somebody did something like that when I have to go home and sleep at night. I can’t if there’s any doubt about it.”
The second juror served on McKinney’s original trial in 1999. She knew about the retrial and did not wish to revisit it. She said she’d done her best and had made her peace with God. But she said, “If he truly is innocent, I hope that justice will prevail.”