So Persuasive--and So Tragically Wrong

After Dwayne McKinney’s recent prison release--after proof he had been wrongfully convicted of murder 18 years ago--a colleague pumped me for details about his trial, which I’d covered as a reporter. I had trouble remembering much; it was all so long ago.

But the line in closing arguments that got McKinney convicted, that one is embedded in my memory bank as if it were just last week. I’ve repeated it many times to both friends and readers.

Now that we know McKinney was almost certainly innocent, that line will haunt me the rest of my days as a working journalist. It’s never easy to admit when you’re wrong, but you can learn from it. I, like the jury, swallowed that line whole. . . .

McKinney, 19, black, a gang associate, unemployed and living in Ontario, was brought to trial in Orange County Superior Court accused of the Dec. 11, 1980, murder of Walter Bell, a Burger King manager in Orange, during a robbery there.

Three eyewitnesses to the shooting identified McKinney, both in a line-up and in court. A fourth identified him in court.

McKinney had a superb lawyer, Deputy Public Defender Christopher Strople, who is now a Superior Court judge. Strople did everything a lawyer could to at least show reasonable doubt. He had alibi witnesses who testified McKinney wasn’t even in Orange County at the time of the murder. And just as important, Strople brought home to jurors with a sledgehammer that the eyewitnesses’ statements to police were fraught with huge holes.

They all said the shooter was over 6 feet tall. One said the shooter could have been 6-3. McKinney was of slight build, and stood at 5 feet 9 inches.

Refuting the Witnesses

How could the shooter have been McKinney, with that kind of discrepancy in the eyewitness statements?

McKinney’s prosecutor, Tony Rackauckas, convinced the jurors, and practically everybody else in the courtroom, that his own witnesses were wrong about the height issue.

Without the trial transcript in front of me, I won’t try to quote him directly. But Rackauckas suggested in closing arguments to the jury: When someone’s sticking a loaded gun in your face, don’t they just look bigger? Don’t they?

Smack.

There went Strople’s case.

You almost had to be there to feel the impact it had.

Rackauckas, who is now the county’s district attorney, is almost unlike any other prosecutor you’ll ever see in a courtroom. He never raises his voice; he doesn’t try to perfect a slick delivery. He talks to jurors as if he were sitting down with them individually over a cup of coffee at their own kitchen table. It is brilliantly effective.

I recently read a comment from another reporter at the trial that he knew it would be a close call, that the verdict could have gone either way. Baloney.

McKinney was sunk the moment Rackauckas threw the jurors that lifeline about the height issue, to let them sidestep that gargantuan gap in the eyewitness statements.

My colleague Scott Gold recently interviewed one of the jurors who said she was the last holdout before joining the others in voting guilty. It was the height issue that bothered her most. And it was Rackauckas’ line about the gun that other jurors used on her to try to persuade her to change her vote. She eventually did, and now regrets it.

Strople has declined to discuss the McKinney case now, convinced it would be unethical because he’s still sitting on the bench. That’s too bad, because I’d very much like to know what’s going through his mind. I hope he doesn’t feel that he let McKinney down. He was a tremendous advocate for his client.

In contrast to Rackauckas’ low-key approach, Strople expressed himself to jurors with indignation.

McKinney’s alibi witnesses were adamant that he was in Ontario the night of the Burger King shooting. But some of them had their own troubles with law enforcement. The defense countered that when you are poor and black, your neighborhood witnesses aren’t going to be, as Strople put it in court, “living at Disneyland.”

One of Strople’s statements to jurors ought to be embedded in law school books across the country. Doubting the credibility of a defendant’s alibi witnesses because of his environment, he said, “is one reason why innocent, young black kids get convicted.”

Looking back on news stories from that time, including my own, it seems we all covered it pretty straight. Maybe that was the problem.

Yes, you might look a little taller with a loaded gun in your hand. But do you look that much taller? Strople, who was about McKinney’s height, told jurors: “I could come at you with a bazooka and you wouldn’t consider me 6-foot-3.”

I cannot explain why, but Strople’s line, which made a lot more sense than the prosecutors’, didn’t have the same impact with jurors. Or with any of us spectators.

I’ve repeated the Rackauckas line often as an example of courtroom brilliance. I hope it will haunt me now in a positive way, as a reminder you have to be skeptical about almost everything you hear.

It was Rackauckas, as district attorney, who launched his own investigation last year after confronted with new evidence uncovered by the public defender’s office; it pointed to someone else as the Burger King killer. He deserves credit for keeping an open mind.

Rackauckas has called all this a bitter pill to swallow. He owes no apology, of course, for doing his best in the courtroom. What else was he supposed to do? His eyewitnesses appeared so very convincing. No one can doubt Rackauckas thought at the time he had the right defendant.

Looking back, Strople’s courtroom style bordered on outrage that McKinney had even been brought to trial. It took the system 18 years to figure out that Strople was right.

Jerry Hicks’ column appears Monday and Thursday. Readers may reach Hicks by calling (714) 966-7789 or e-mail to jerry.hicks@latimes.com