Conviction vanishes along with transcript

AJC Investigation: Convicted ATL murderer to get new trial due to court recorder's error

Roy Lewis McKinney shouted “I didn’t do it” when he was convicted five years ago of murdering his wife and led off to a lifetime in prison.

His lawyers never thought he got a fair shake -- the case against him was circumstantial -- but his wife’s family and a jury concluded he was guilty.

“That was the most unusual murder case I’ve ever tried,” said Tony Axam, one of McKinney’s lawyers. “There was no eyewitness and there was no physical evidence tying Roy to the death. It was only that he was the prime suspect.”

Now, the 37-year-old McKinney has the chance to persuade a new jury to see things his way. Superior Court Judge Michael Johnson vacated his conviction just before Thanksgiving and ruled he is entitled to a new trial.

It wasn’t because prosecutors or police trampled on his rights; it wasn’t because of a judicial error; it wasn’t because of new evidence.

McKinney is getting a new trial because there is no record from the first one that he would need to appeal the conviction. The court reporter never produced an official transcript of the case and her record of the trial has been lost. Worse for prosecutors, critical physical evidence -- such as cell phone records and a video of McKinney’s interview by police -- was lost, too.

“Somebody dropped the ball and whoever dropped it is who I’m angry at,” said David Cooke, who prosecuted the case in 2005. “This man did it and (Atlanta Police Detective) Vince Velazquez and I worked very hard to uncover the truth and present it to the jury. We really had a fight on our hands.”

Fulton County District Attorney Paul Howard on Friday told The Atlanta Journal-Constitution, which first reported on the missing transcript last June, that his office plans to retry McKinney.

“It is obviously a tough case that has gotten tougher because of all the time that has passed and the court reporter losing all the critical evidence,” Howard said. “Under the circumstances we would listen to a reasonable plea offer from him, but we’re not talking about time served. We aren’t going to award him a prize because the court reporter lost the transcript and the evidence of the case.”

McKinney remains jailed and is being held without bond on murder charges.

The court reporter, Peggy Malcolm, who retired a month after the case, contends she left left the trial record and the evidence in her locker at the courthouse.

Malcolm, who declined to be interviewed for this story, contends she never was asked to produce the transcript and that someone else lost the record and evidence, possibly after it was moved to a new locker, said her lawyer, Lee Sexton.

The lack of a transcript became an issue in 2007 when his lawyers requested one for an appeal.

Howard tried to have Malcolm jailed for contempt of court, contending she had a duty to produce the transcript. Sexton contended Malcolm, who had married a federal judge, wasn’t required to produce the transcript until either the District Attorney or defense lawyers requested it -- which didn’t happen until 2007 when McKinney’s new public defender requested one.

Last August, Superior Court Judge Constance Russell ruled in her favor. “She didn’t lose anything, she had been retired for years,” Sexton said. “The judge found others had the responsibility.”

Cooke, now head of the special victims unit for the Houston County District Attorney, conceded the evidence in the first trial was thin, but he said McKinney had a strong motive: his wife, Shaquilla Weatherspoon, a guard with the Fulton Sheriff Office, was having an affair and planned to divorce him.

McKinney reported Weatherspoon, 29, missing in 2002. Five days later her decomposing body was found in woods off Greenbriar Parkway. The medical examiner could not determine a cause of death.

Cooke contended there was a pattern of abuse and presented evidence that McKinney, on at least one occasion, had slammed his wife’s head into a wall. The critical evidence: cell phone records that showed McKinney had regularly called his wife, but his calls dropped off after he reported her missing; and a neighbor who said he saw Weatherspoon in a car with McKinney and she appeared to be “sleeping” near the time of her disappearance.

But two detention officers who worked with and knew Weatherspoon testified she never complained that McKinney was physically abusive. Instead, they said, she complained that he constantly monitored her by calling her when she was out with them at clubs and by secretly recording her conversations at their house, according to excerpts of testimony that were not lost because lawyers had asked for them during the trial.

The friends testified they never saw bruises on her. One said Weatherspoon was having an affair with a married sheriff’s deputy and that she complained her lover was “real jealous.” Johnson, the judge, refused to allow the jury to hear testimony about Weatherspoon’s affairs, calling it character assassination, because defense lawyers had no evidence against any lover.

Howard thinks he can still overcome any reasonable doubt if forced to retry the case despite the missing evidence. The district attorney said he is optimistic the phone company retained a hard-copy record of the cell phone calls it created for the trial. Cooke said they were critical to the conviction.

“He called her dozens of times for her to come home and they dropped off after she disappeared,” Cooke said. “I will never forget the effect on the jury when I asked Vince Velazquez when the last phone call was. It was obvious to everyone that he had stopped calling because she was dead."