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Jury: Ex-Ball State officer not liable in shooting

Michael W. Hoskins
January 1, 2008
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A federal jury decided in less than three hours that a former Ball State University police officer isn't liable in the fatal shooting of a drunken, unarmed student four years ago.

An eight-person jury returned Monday evening with a verdict in about 2 ½ hours, after hearing 10 days of arguments and testimony in the case of McKinney v. Robert Duplain in U.S. District Court in Indianapolis. Jurors determined that Duplain wasn't liable for Michael McKinney's death.

More than 50 people - mostly McKinney's friends and family - crowded the courtroom on the final day of trial, and a handful had to clear the aisles and listen from another room because of space and seating limitations. Many wore green ribbons and buttons with McKinney's photos on them.

The trial started Jan. 22 in U.S. District Judge Richard Young's courtroom and ended with closing arguments Monday afternoon before jurors began deliberating about 3:15 p.m.

Their focus: what happened about 3:30 a.m. Nov. 8, 2003, when 21-year-old McKinney was shot four times by BSU campus officer Robert Duplain, who was responding to a report of a stranger pounding on the door of a house. Tests later showed that McKinney had a blood-alcohol content more than four times the legal limit to drive. A grand jury and internal police investigation later cleared Duplain of any wrongdoing in the shooting, but McKinney's parents filed suit in early 2004 on grounds of unreasonable excessive force and wrongful death.

Plaintiffs hired Michigan attorney Geoffrey N. Fieger, who is known for his high-dollar cases and has represented clients such as assisted-suicide advocate Jack Kevorkian in the 1990s. Defense attorneys included Indianapolis attorney John Kautzman with Ruckelshaus Rolad Kautzman Blackwell & Hasbrook, Brad Williams with Indianapolis-based Ice Miller, and Scott Shockley with DeFur Voran in Muncie.

Key issues centered on what happened, specifically whether McKinney charged Duplain, whether Duplain sufficiently alerted McKinney to his presence, and whether Duplain acted reasonably in shooting McKinney four times.

Attorneys offered dramatically different versions of what happened, with plaintiffs' counsel contending that McKinney was in a drunken haze not capable of harm while the defense asserted the then 24-year-old rookie cop had no choice but to act in self-defense when McKinney charged at him.

From day one, Fieger described the fatal shooting as an "execution-style" killing that led to a "cover-up of horrendous proportions" because of various discrepancies in police and witness accounts of what happened.

Fieger asked for $42 million in compensatory damages for the value of McKinney's life, pain and suffering, and the loss of his earning capacity, and his love and companionship for his family. He also requested $25 million more in punitive damages, cutting the $250 million figure he'd mentioned at the start of trial.

"This case is about the betrayal of the trust we have in our police officers," he said during his almost two hours of closing statements, saying that most attorneys are working for money. "I guess I'm one of those greedy lawyers. I'm greedy for justice. The only way I can get justice for everyone in the U.S. is by asking for money."

But defense attorneys countered that claim by saying this was one of the most dangerous kinds of calls an officer can go on, and that Duplain was justified in shooting McKinney because the officer was in fear of his safety. They argued Fieger brought in paid experts to analyze the case rather than rely on those people who'd been there and handled the case, and much of the plaintiff's foundation was based on faulty conclusions, misinterpreted evidence, and facts that weren't facts.

"I think you've seen enough of this ploy, and it is a ploy, to recognize it as a smokescreen," Williams said in his closing, referring to Fieger's case.

Williams countered claims about discrepancies in witness and police accounts about what happened, which Fieger examined during trial as examples of a cover-up.

"If we asked you to write down in 10 seconds an account of this trial. We'd get eight different versions - and you've had the luxury of taking notes and knowing what's important in these two weeks of trial," Williams told jurors. "Inconsistencies are a hallmark of the truth."

His co-counsel Kautzman also told jurors to see through Fieger's ploy and smokescreen, noting that "water doesn't run uphill" just because the plaintiff's attorney says so - a reference to Fieger's previous grilling of a witness when he noted the defense was trying to make things look differently than they really are.

"We sometimes forget that tragedies happen every day the world over, without anyone being legally at fault," Kautzman said. "Bad things happen to good people. Legal liability isn't always the answer."

Kautzman credited Fieger with being a brilliant trial lawyer and said it was interesting and challenging to be up against him.

"He's a unique individual, but I'm not sure if his style of lawyering was a right fit for a central Indiana jury in this case," Kautzman said, adding that he was also surprised that Fieger wasn't present to hear the verdict in court. "But this was a difficult, emotional case all around, and it really was a privilege working with such top-notched trial lawyers."
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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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