For Roy Lewis McKinney, it was like his murder trial never happened, even after spending six years in prison.
McKinney, 39, goes on trial againMonday in Fulton County Superior Court on charges of murdering his wife. He was convicted of the crime in 2005, but his trial transcript subsequently was lost. Since he needed the record to challenge his conviction, an appellate court ordered a new trial.
That could bode poorly for the prosecution because there was little evidence that tied McKinney to the crime, and some of it disappeared with the transcript.
"It is a tough set of circumstances," District Attorney Paul Howard said. "It was a tough trial the first time, and it will be a tougher trial now."
In 2005, the prosecution contended that McKinney murdered his wife, Shaquilla Weatherspoon, 29, who was a guard with the Fulton County Sheriff's Office, because she was unfaithful. The most damning evidence before were cell phone records that showed he stopped calling her incessantly after reporting her missing on June 2, 2002, which prosecutors said indicated he knew she was dead. Her body was found five days later.
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The phone records and a video of McKinney's police interview were lost. Prosecutor Brett Pinion said he has replaced the phone records, but he and Howard wouldn't disclose what evidence was still missing.
Lynn Whatley, a prior McKinney attorney, said one of Weatherspoon's boyfriends was just as likely a suspect.. Two detention officers who knew Weatherspoon testified previously that she never said McKinney was physically abusive in her complaints about him. One officer testified Weatherspoon complained that one man she was seeing, a married sheriff deputy, was "real jealous."
"It is all circumstantial and the witnesses are not strong," Whatley said. "Personally I think it is unjust to retry him. How about if people change their testimony and now you don't have a transcript to use in questioning them about what they said the first time? You wonder if justice can be done."
The Fulton County Public Defender's office, which now represents McKinney, discovered the transcript was missing. The court reporter, Peggy Malcolm,was required by law to file a copy with the Superior Court Clerk and the state Attorney General, but neither office could produce a copy. Malcolm retired a month after the trial.
In court documents, Malcolm said she left the transcript and evidence in her Superior Court evidence locker. Her lawyer said co-workers later moved the locker contents to new storage. Howard contends she kept the transcript and lost it during the delay in appeal.
Howard tried to have Malcolm jailed for contempt of court, but a judge ruled in her favor in 2009.
For McKinney, it is a second chance. He trembled and shouted, "I didn't do it," when sentenced to life in prison in 2005.
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