O.C. Spurns Suit by Man Wrongfully Convicted

Though two branches of county government say DeWayne McKinney was wrongly convicted of murder 20 years ago, attorneys defending Orange County against McKinney’s civil lawsuit are once again opening the case.

County attorneys are trying to get a judge to throw out McKinney’s lawsuit by presenting evidence that his original attorneys might have had reason to believe at the time that he was guilty.

McKinney filed suit against the public defender’s office after his release in 2000, contending his lawyers sat on evidence of his innocence for more than 15 years. He is also suing the Orange Police Department, claiming a detective lied to witnesses about evidence in the case.

The public defender’s office reopened the case in 1998 and found evidence of McKinney’s innocence. The district attorney conducted a separate investigation and asked that the case be thrown out, saying prosecutors in that office believed another man probably committed the murder.

McKinney, seeking $10 million in damages, claims his attorneys didn’t properly act on the statements of two prisoners who said another man killed the manager of a Burger King during a 1980 robbery.

The county, however, said the prisoners lacked credibility and that McKinney’s attorneys had good reason not to pursue the case further. They say he failed a polygraph test shortly after his conviction. The polygraph examiner concluded that some of his answers showed “clear evidence of deception,” county lawyers allege in court documents.

The lawsuit has placed Public Defender Carl Holmes in an awkward position. In a deposition as part of the suit, Holmes testified that he remains convinced of McKinney’s innocence. But Holmes’ lawyers are trying to prove lawyers in the office had reason to believe McKinney was guilty.

Holmes declined to comment further. McKinney’s lawyers contend in court documents that the polygraph test was unreliable. They hired a polygraph expert who said the 1982 tests show no deception by McKinney.

U.S. District Judge Gary Taylor is scheduled to consider the county’s motion to dismiss the lawsuit this month.

The hearing will focus on whether the public defender had a duty to defend McKinney after his conviction.