By Steve Visser
The Atlanta Journal-Constitution
GLENNVILLE, Ga. — A convicted murderer may go free because a Fulton County court reporter failed to file the trial transcript with the court that the man needs to challenge his life sentence.
Roy Lewis McKinney was convicted in 2005 of murdering his wife on what his chief prosecutor called thin but compelling evidence, but the 37-year-old prisoner’s appeal has been held up for nearly two years because the transcript and backup tapes from his trial are missing.
“He’ll get a new trial,” said Assistant District Attorney Christopher Quinn said. “He’s entitled to appeal the conviction and he needs the transcript to do that.”
McKinney’s lawyer, assistant public defender Steve Phillips, said in court documents that he had been trying to get a copy of the transcript since at least 2007. Peggy Malcolm, the court reporter, who retired a month after McKinney’s conviction, was required by law to file a copy with the Superior Court Clerk and the state Attorney General but neither office has a copy.
Phillips said Malcolm refused to return his calls when he first left her voicemail messages seeking her help in getting the transcript, according to the court documents. E-mails attached to the court documents said she also did not respond to certified letters from Court Administrator Judy Cramer’s office and calls from court reporters.
Malcolm maintained in court documents that she left the trial record in her evidence locker at the Superior Court when she retired in March 2005. She declined to be interviewed
Quinn was skeptical. “I have never had the clerk’s office in this county fail to provide me with a transcript in any of the appeals I’ve had in 10 years,” he said. “We have to move forward with the assumption it was never filed and Ms. Malcolm is unable to find her notes.”
David Cooke, the former Fulton County prosecutor who tried the McKinney case, said that a new trial would be a dicey case for prosecutors. McKinney was accused of murdering his wife, Shaquilla Weatherspoon, after her decomposed body was found in an abandoned airline facility off Greenbriar Parkway, five days after he had reported her missing on June 2, 2002.
But the evidence against him was thin. Cooke, now the chief of the special victims unit in Perry County, contended McKinney killed his wife, who had been unfaithful, in a jealous rage because she was planning to leave him.
“I knew he did it, but it was hard to prove it --- we didn’t have a lot,” Cooke said.
The key evidence against McKinney were cellphone records that showed he had a pattern of obsessively calling the 29-year-old Weatherspoon, but those calls dropped off after he reported her missing, suggesting he knew she was dead, Cooke said. A witness also said that Weatherspoon appeared to be sleeping when he saw her in a car near the time of her disappearance.
The physical evidence, including the cellphone records, has also disappeared. Malcolm was also by law in charge of the evidence.
“Sometimes justice works in mysterious ways,” said Lynn Whatley, the private lawyer who defended McKinney at trial. “I truly believed he was entitled to a new trial because I truly believed he didn’t get a fair shake.”
The episode has infuriated Quinn largely because for at least two years Malcolm refused to come to the courthouse to help her fellow court reporters search for her transcript that the prosecutor says she lost.
He filed a criminal contempt-of-court motion against Malcolm --- which carries a maximum penalty of 20 days in jail ---and last month Superior Court Judge Michael Johnson gave Malcolm 10 days to produce the transcript --- which she was unable to do.
“It took a subpoena to get her to the courthouse,” Quinn said. “I have never talked to her when she was apologetic or showed any remorse for the situation we’re in.”
Johnson recused himself from the cases last week just before a scheduled hearing to decide whether Malcolm should go to jail. The judge declined to be interviewed to explain why he thought he should recuse himself, an act that will further delay the case.
Malcolm’s lawyer, Lee Sexton, said there is no evidence that his client lost the transcript. And while she was obligated to file the copies, court reporters often wait to file the transcript until the appellate lawyer requests one, Sexton said.
Court reporters --- who make a big portion of their income by selling transcript copies to appellate lawyers for $3.78 a page --- said they are supposed to get the transcript to the clerk within 30 days of a guilty verdict.
Malcolm denied taking the tapes and discs with her when she retired so she would have them available to produce a transcript for appellate lawyers when they requested one, Sexton said.
He said his client was a victim of the slow pace of the McKinney appeal. Whatley, who filed the notice of appeal three weeks after the Feb. 11, 2005, conviction, never sought a transcript and later he dropped the case. The case was assigned to the short-staffed public defender’s office in August 2005.
In June 2007, from his cell at Smith State Prison in Glennville, McKinney petitioned Johnson to order the state to provide him with a transcript so he could appeal. The judge refused.
If the appeal had been filed in a timely manner, the transcript may never have been lost, Sexton said. As it is, Malcolm contends that evidence may have been lost when the court administrator moved it to the main evidence room, Sexton said.
Copyright 2009 The Atlanta Journal-Constitution