Tim comes home

ON THE Sunday after he walked out of Shelby County Jail, Timothy McKinney was strolling through the Memphis Botanical Gardens, when he stopped to look at the ducks. They were Mallards, two males and one female, and a handful of ducklings, splashing around a fountain, their feathers shimmering in the sunlight.

"It's beautiful," he said, watching the mother. "So much detail. The brown, the light brown." He said he'd like to paint a picture of one, thought it might take him a week to get it right. I pointed out the iridescent patch on the wing, deep blue and visible when it caught the light. "It's changing--on the little fin!" he exclaimed. "Wow."

Tim wore a white T-shirt, shorts and brand new white sneakers. It was hot and sunny, the last weekend in May, and spring had turned to summer. "My senses are so open to everything," he said, motioning as we walked. "Hear the birds chirping. Music to my ears." Outside his aunt's house the other day, he'd felt grass for the first time in more than 15 years.

JUST FIVE days earlier, Tim had finally won his freedom after pleading guilty to a crime he always has said he did not commit.

Convicted and sent to death row in 1999 for the killing of an off-duty police officer, Tim's conviction was overturned in 2010, with a judge concluding that his trial had been "fundamentally unfair." Not only had prosecutors concealed exculpatory evidence, they did so with the complicity of his own defense attorney. No physical evidence linked him to the crime and the eyewitness descriptions were wildly contradictory. Numerous people had even pointed at another man as the real killer.

Yet the Shelby County DA's office remained hell-bent on sending Tim back to death row. Incredibly, one of the prosecutors assigned to his case, Tom Henderson, like his predecessor, had a history of hiding evidence in death penalty trials--a fact revealed in a major exposé in USA Today.

Tim's second trial in 2012 ended in a hung jury, with a lone juror refusing to convict. Exactly one year later, on April 16, 2013, a third jury also failed to reach a unanimous verdict. As one juror would tell me this summer, "If there is any reason to doubt, you cannot convict the person." When it came to the eyewitness testimony at the center of the state's case, "There were just so many inconsistencies....I could not convict him based on that information alone."

But four other jurors disagreed, so another mistrial was declared. I was in the courtroom that day, along with members of Tim's family, and Katherine Smith, his longtime friend, who met Tim through the CEDP's pen pal program. Longtime CEDP board member Lee Wengraf, who first introduced me to Tim's case, came to Memphis for the trial as well, but had to fly back home before the jury began deliberating.

After a decade and a half, many of Tim's loved ones were in tears at the prospect of yet another trial--an unthinkable scenario to anyone who might assume that our criminal justice system does not allow the state to vindictively try people over and over again just to win a conviction.

But this was Shelby County. No way would Attorney General Amy Weirich drop the charges against an accused cop killer. She faces reelection next year. As for any kind of a plea deal, "They don't make reasonable offers," one lawyer told me bluntly. To the judge, the media and everyone else, a fourth trial was a forgone conclusion.

But in the weeks that followed, something changed. Maybe it was news of the jury split this time--eight to four in favor of the defense. Maybe it was the continued media attention, including news that the original medical examiner in the case was speaking out against a fourth trial.

My own reporting for The Nation had addressed missteps and misconduct, first documented by investigators and attorneys years before, and uncovered some troubling new facts. Two 2012 jurors, one of them the daughter of a Memphis cop, told me that following the mistrial, the presiding judge had made it clear he believed Tim was guilty--even as he prepared to preside over a third trial. (In an e-mail, the judge denied doing any such thing.)

And then there was the online petition circulated on Tim's behalf by his family and supporters, including the CEDP, calling on Weirich not to seek a new trial. The petition attracted hundreds of signatures; every new one prompted an e-mail notification to Weirich's inbox, reminding her that people were still watching. "Enough is enough," the petition read. "It is time for Shelby County to admit what two juries have concluded in the past year: there is too much doubt in Timothy McKinney's case."

"I believe the ongoing coverage of Tim's case helped keep the judge and prosecution in check during Tim's third trial," one investigator wrote to me later on, "and contributed to the state's unprecedented decision to settle this case and grant Tim his freedom."

Indeed, following a meeting between the state and the defense, on May 21, Tim pled guilty to second-degree murder in exchange for time served. After a last night in jail, Tim walked out a free man, to a sea of family friends and press. The local barbershop put a banner out front welcoming him home.

It's hard to overstate the significance of the outcome. "It's only happened less than a handful of times in Tennessee judicial history," a local Fox affiliate announced. "A prisoner on death row ends up being a free man." One of Tim's attorneys called it "truly rare."

DRIVING AROUND town with me, Tim described how overwhelming his homecoming was at first. "So many phone calls, so many cell phones. Big cell phones, little cell phones." He recently got a flip phone of his own, which he's still trying to figure out. His younger sister Lillian has helped him set up an e-mail address--he is still figuring that out, too-- and a Facebook page, currently filled with smiling photos of him and his family. On the day he got out, he was stunned to discover DVR technology when a segment about his release appeared on TV. "I said, 'You can rewind the news?'"

We stopped at an art store to kill time before a gathering at his sister's home in East Memphis. Walking the aisles, he studied the paints and brushes, pointing out the ones he used to order from a catalog while living on death row. Tim learned to paint thanks in part to a fellow prisoner named Ndume Olatushani. Also convicted in Shelby County, Olatushani spent 27 years behind bars for a crime he did not commit before his release in 2012. Today, Ndume lives in Nashville, a city Tim, too, is considering making his home.

But right now, Tim remains focused on getting reoriented and getting to know his many nieces and nephews. After I said goodbye to him in Memphis, he spent the summer seeing family and navigating the bureaucratic maze involved in getting things like a driver's license. ("There's so much you've got to have that I don't have," he told me, a bit frustrated, in July.)

He also spent the summer learning how much his guilty plea will haunt him. It means that he has lost his rights as a U.S. citizen. He can't vote or serve on a jury. And, of course, there's the stigma of it. There will always be people who believe he was guilty all along.

But there are many ways in which Tim is lucky. More than once, he had an execution date next to his name. Today he is free. He is not on parole, so he can travel. He plans to attend the CEDP convention in November, to meet the activists who once wrote him Christmas cards and letters who were there alongside him in spirit over the years. To join the family members of prisoners still on death row, to share his story, a reason to keep hope alive.

"It's been a dream," Tim writes. "I used to read the stories about guys coming home, then going to speak at the convention. Now, I feel I'm a member of the Campaign as well. I've become a part of the struggle. I have to keep speaking about my experience, and my life. I can pull more people in."

First published in the New Abolitionist.