Fulton County prosecutors want to convict Roy McKinney of murder -- again -- and they want him to help them do it.
McKinney wants the state Supreme Court to rule he doesn't have to provide the prosecution with a key piece of evidence that ended up in his lawyers' hands.
McKinney, 39, was convicted in 2005 of murdering his wife, Shaquilla Weatherspoon, in what prosecutors contended was a jealous rage.
But his conviction was thrown out because the court staff lost the transcript of his trial, which made it impossible for him to appeal the highly circumstantial case. The staff also lost a videotape in which his then very young daughter described a fight between her mom and dad where McKinney allegedly got physical.
"The defense has an accurate copy of this tape," prosecutor Brett Pinion said. "The defense has no right to hide this evidence."
Prosecutors need the videotape to show McKinney could be violent against his wife, especially since two co-workers with whom she was friendly testified in 2005 that she complained about her husband a lot but never claimed he hit her. Weatherspoon was a guard for the Fulton County Sheriff's Office.
"It is an important piece of evidence," said David Cooke, who prosecuted McKinney in 2005 and now is a prosecutor in Houston County. "If the tape doesn't come in, he could take the stand and say, ‘I never laid a hand on her.'"
On Monday, Superior Court Judge Michael Johnson ordered McKinney to hand over the tape but the defense refused, a district attorney's spokeswoman said. Defense lawyer Elizabeth Markowitz is appealing the order to the Georgia Supreme Court.
"All I can say is that the tape supports our belief that the victim was a victim of domestic violence," prosecutor Pinion said.
Attempts to reach Markowitz for comment were unsuccessful.
Tony Axam, one of McKinney's defense lawyers in 2005, said the Supreme Court probably will order the videotape into evidence but the defense might get a break. In the last trial, the tape was played under an exception to the hearsay prohibition that allowed a taped interview of a child about violence in the home.
Axam noted the daughter is now a teenager and, although her memory is likely hazy, could testify.
"We have to be able to cross-examine the witness,” he said. “If I’m the Supreme Court, I’m very reluctant to have a nine-year-old video be the basis for the conviction against somebody in a case that is already extremely circumstantial.”
In 2005, Cooke contended McKinney murdered the 29-year-old Weatherspoon, his high school sweetheart, because she was unfaithful and was preparing to leave him.
Cooke argued cellphone records proved McKinney knew his wife was dead when he reported her missing on June 2, 2002, because the records showed he called her incessantly but stopped after that date. Her body was found five days later.
Axam argued one of Weatherspoon's boyfriends was just as likely the killer. A detention officer testified that Weatherspoon complained one lover, a married sheriff's deputy, was "real jealous."
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