Davis Polk has a long and distinguished history of providing pro bono legal representation to individuals on death row. That history includes Davis Polk’s representation of Joseph James in the 1977 case in which the New York Court of Appeals held the New York death penalty statute unconstitutional.

Recently, we succeeded in vacating the conviction of a man on death row and having the case remanded for a new trial. In July 1999, Timothy McKinney was convicted of murdering an off-duty police officer and sentenced to death. The prosecution’s case relied on the testimony of 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 he has continuously maintained his innocence.

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. Among the arguments presented were that (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 was either not exculpatory or not available.

Oral argument was held in June 2008 and, in March 2010, 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 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. Currently, we are working with Mr. McKinney and local counsel to prepare for the new trial.

Davis Polk has also successfully appealed the death sentences of several inmates from Alabama and Georgia, and recently took on another eyewitness case from Louisiana, in which our client received ineffective assistance of counsel at trial.