A unanimous panel of the Tennessee Court of Criminal Appeals has vacated a capital murder conviction against Timothy T. McKinney, a pro bono client on death row in Tennessee, and ordered a new trial.

In July 1999, Mr. McKinney was convicted of murdering of an off-duty police officer and sentenced to death. The prosecution’s case depended on testimony by two eyewitnesses, only one of whom could affirmatively identify Mr. McKinney as the shooter. There was no forensic evidence linking Mr. McKinney to the crime, and Mr. McKinney has continuously maintained his innocence since his arrest.

Years later, it was discovered that the eyewitness who identified Mr. McKinney at trial had provided multiple descriptions of the shooter to police within minutes and hours of the shooting, and that these contemporaneous descriptions were materially different from his trial testimony. Similarly damaging evidence was discovered regarding the testimony of the second (non-identifying) eyewitness.

In 2007, Davis Polk agreed to represent Mr. McKinney on appeal from a post-conviction hearing, which is essentially a state habeas corpus proceeding. Among the arguments presented were (1) trial counsel failed to seek out and use contradictory statements to impeach the state’s star witness; and (2) prosecutors refused to disclose exculpatory evidence to trial counsel and falsely represented that certain evidence were either not exculpatory or not available.

Oral argument was held in June 2008 and, earlier this month, the Tennessee Court of Criminal Appeals held that trial counsel had provided ineffective assistance of counsel in violation of the Sixth Amendment. Weighing trial counsel’s numerous errors against the evidence at trial—which the court characterized as “not overwhelming”—the court concluded that that jury was never able to consider critical evidence that would have created reasonable doubt. Consequently, the verdict was unreliable. McKinney v. State of Tennessee, No. W2006-02132-CCA-R3-PD, slip op. at 45-47 (Tenn. Ct. Crim. App. Mar. 9, 2010).

This is the only the fourth time since 1977 that a Tennessee court has vacated a conviction and ordered a new trial in a capital murder case based on ineffective assistance of counsel. The State of Tennessee may appeal to the Tennessee Supreme Court.

The Davis Polk team included senior counsel James W.B. Benkard, associates Courtney A. Howard, Thomas M. Noone, Gina Castellano, Andrew J. Bruck, and Lauren E. Sasser (not yet admitted); former associates Benjamin Allee, Alexandra P. Parra, Brooke Tucker, Deepika Bains, Sachin Bansal, Martin Hewett, and Rachel Steinback; summer associates Douglas Zolkind and Cecil VanDevender; legal assistants Michael E. Martin and Ethan Anderson; former legal assistants Ellen Bandel and Michael Thaler; litigation services manager Laura Healy and former litigation services manager Michael Bunyi. All members of the Davis Polk team are based in the New York office.