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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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