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Thread: Larry McKay - Tennessee Death Row

  1. #1
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    Larry McKay - Tennessee Death Row




    Facts of the Crime:

    On August 29, 1981, at approximately 11:00 p.m., Melvin Wallace, Jr., went into the L & G Sundry Store at 1069 North Watkins in Memphis to purchase two barbecue sandwiches. When he entered, there were four men in the Sundry Store, including two clerks, Benjamin Cooke and Steve Jones, who were known to Wallace as he was a regular customer. The other two black men were the defendants, Larry McKay and Michael Eugene Sample. Wallace did not know them but positively identified them in a line-up at 2:43 p.m. on August 31, 1981, as the murderers of Cooke and Jones and Sample as the person who shot him in the thigh and back and attempted to shoot him in the head.

    Wallace testified that he went to the back of the store where Cooke had gone to prepare the sandwiches. McKay was also standing in the back with a quart of 45 Beer mumbling to himself. Not wanting to get involved with a drunk, Wallace turned and directed his attention to the front of the store where Jones and defendant Sample were standing. When he thought the sandwiches would be ready, he looked around at Cooke and saw that McKay had gone behind the counter and was holding a gun at Cooke's head. When Wallace realized "it was a robbery" and "broke and ran for the front door," Sample hollered for him to halt and shot him in the thigh. Wallace tried to play dead but Sample came over and said, "This nigger ain't dead," and shot him in the back. Wallace had heard Sample demanding that Jones give him all the money and heard Jones say, "Man, I gave you everything I had." After hearing Sample say several times, "I ought to kill all you son-of-a-bitches," Wallace heard him say, "Kill every son-of-a-bitch in here," and the defendants started shooting. Wallace testified he saw McKay shoot Cooke in the head. Sample came back to where Wallace was lying on the floor and put a pistol to his head. It clicked several times and did not go off. Wallace testified that he "came up off the floor" and started wrestling with Sample. The gun went off past Wallace's head and he lapsed into unconsciousness. When Wallace woke up, he heard Sample say, "Let's get the hell out of here."

    Cooke and Jones died from the bullet wounds to their heads; but when the police arrived shortly after the killers left, Wallace was able to give them information about the episode and gave a description of the killers while he was receiving medical care at the scene and at the hospital. One of the investigating officers remembered that a grocery store across the street from the L & G Sundry Store had been robbed about ten days earlier, and that the witnesses had said the robbers were two black males wearing blue-green surgical caps. Among the items taken in that robbery was a .45 caliber automatic pistol that had a tendency to misfire. Shell casings from a .45 caliber automatic were found in the Sundry Store; and putting together leads from the two robberies, the police apprehended Sample and McKay the next day. They were in a car with a third man, and the .45 automatic with the serial number of the pistol stolen from the grocery across the street was found on McKay. A .32 caliber revolver was found inside the car. Bullets recovered from Jones' cheek, Cooke's head and chest and Wallace's leg had been fired from the .32 caliber revolver found in the car. Two blue hospital surgical caps were found in the car. More than two hundred and perhaps as much as seven hundred dollars in cash was stolen from the Sundry Store; and McKay, who was unemployed, had $166.30 on his person when arrested. Sample and $195 in cash at that time. The third man in the vehicle testified to incriminating circumstances linking defendants to recent criminal activity.

    Charles Rice, age sixteen, went to the L & G Sundry Store to buy cigarettes and as he arrived at the door he saw the robbery in progress, specifically the gun pointed at the head of one of the clerks. He turned and ran home and told his mother what the had seen and later reported the information to the police. He made a positive identification of both defendants.

    For more on Sample, see: http://www.cncpunishment.com/forums/...michael+sample

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    Administrator Moh's Avatar
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    Tennessee Court of Criminal Appeals

    Larry McKay v. State of Tennessee
    W2008-02274-CCA-R3-PD

    In 1981, a Shelby County jury convicted the Petitioner, Larry McKay, and his co-defendant, Michael Sample, of two counts of felony murder and imposed upon both men a sentence of death. On direct appeal, the Petitioner's convictions and sentence were affirmed. State v. McKay, 680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034 (1985). The Petitioner filed multiple post-conviction petitions, one of which was filed in 1995 and is the subject of this appeal. In that petition, the Petitioner contended that the prosecution violated his right to due process and a fair trial by suppressing exculpatory evidence against him. The post-conviction court dismissed the petition, and, after a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

    Authoring Judge:
    Judge Robert W. Wedemeyer
    Originating Judge:
    Judge Chris B. Craft
    Date Filed:
    Tuesday, June 15, 2010

    http://www.tncourts.gov/courts/court...tate-tennessee

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    Death row inmate challenges new Tennessee post-conviction law

    A Tennessee death row inmate is challenging the newly expanded authority of the appointed state attorney general over some capital punishment proceedings

    By Adrian Sainz and Johnathan Mattise
    Associated Press

    MEMPHIS, Tenn. -- A Tennessee death row inmate is challenging the newly expanded authority of the appointed state attorney general to argue certain capital cases, a power that lawmakers shifted away from locally elected prosecutors under a new law after some expressed reluctance to pursue the death penalty.

    The law passed in April by the GOP-led Tennessee Legislature and signed by Republican Gov. Bill Lee has generated opposition from attorneys and Democratic lawmakers. They say the change violates the state Constitution, bypasses the will of voters and targets progressive-minded district attorneys who have defied lawmakers in the past.

    The statute is the latest example of attempts by GOP governors and legislatures in several states to take on locally elected officials who have de-prioritized enforcement of laws they deem unnecessary.

    Lawyer Robert Hutton has filed a motion for Larry McKay, asking a judge to disqualify Attorney General Jonathan Skrmetti from representing the state in McKay’s effort to have a judge hear new evidence and grant another trial.

    McKay was convicted of two murders during a robbery and sentenced to death 40 years ago. McKay's motion claims new scientific methods have revealed that firearms evidence presented at trial was unreliable and a ballistics expert's conclusions cannot stand.

    Skrmetti was handed authority over the case from the local prosecutor, Shelby County District Attorney Steven Mulroy, under the law passed this year.

    The handoff involves collateral proceedings in death penalty cases before a trial court, which apply to issues related to new evidence, DNA testing and intellectual disability, for example. They don’t fall under the appeals process, which the attorney general oversees.

    Mulroy in Memphis and Davidson County District Attorney Glenn Funk in Nashville both have said they oppose the death penalty. Both have also said that they would make prosecuting doctors under the state’s abortion ban a low priority and that state laws targeting the LBGTQ+ community are unnecessary.

    In recent years, other district attorneys around the country have refused to prosecute some Republican-passed state laws, from voting restrictions to limits on certain protest activity. In Georgia, lawmakers passed a bill in March establishing a commission to discipline and remove prosecutors who Republicans believe aren’t sufficiently fighting crime.

    In Florida, former state attorney Aramis Ayala clashed with Republican governors Rick Scott and Ron DeSantis for refusing to seek the death penalty. Both governors reassigned death penalty cases to other prosecutors.

    Richard Dieter, the Death Penalty Information Center’s executive director, said tension exists in capital cases where the district attorney has said the death penalty is flawed and that they will almost never seek it.

    “Governors and attorney generals have taken steps toward removing individual cases from the local DA's authority and even have sought to disqualify the DA from all potentially capital cases,” Dieter said.

    Dieter said “it would make sense” for district attorneys to handle collateral challenges, which typically begin in trial courts.

    Mulroy supports McKay's motion, which argues that the new law hurts the district attorney’s ability to fulfill his responsibilities as an official elected locally under Tennessee's Constitution. The attorney general is picked by Tennessee's Supreme Court.

    "The new statute also violates the voting rights of such voters,” Mulroy's filing states.

    Tennessee has put seven inmates to death since 2018, the most recent occurring in February 2020.

    In 2019, Funk agreed to seek a sentence reduction to keep Black death row inmate Abu-Ali Abdur'Rahman in prison for life. Abdur’Rahman had petitioned a judge to reopen his case on claims that trial prosecutors treated Black potential jurors differently from white ones.

    Republican Sen. Brent Taylor, the sponsor of the bill passed in April, argued that under the previous law, district attorneys could be unfamiliar with the sometimes decades-old death penalty cases under appeal. That means the post-conviction challenges “lose their adversarial characteristic that ensures justice,” Taylor said.

    He also contended that the attorney general should control more of the cases that his office already handles through appeals. Additionally, Taylor said victims’ families would be better off communicating with just the attorney general's office.

    Sen. Raumesh Akbari, the Democratic minority leader, said the law shouldn’t be changed because of possible dislike for the “policies of our more liberal district attorneys.”

    “When you come for an entire office and change how things proceed based on who holds that seat at that time, that’s when you’re making bad policy,” Akbari said on the floor last month.

    Mulroy, a Democrat, has said he opposes the death penalty “as a policy matter” and that he would vote against it if he were a legislator.

    Still, Mulroy is pursuing the death penalty against Ezekiel Kelly, who is charged with killing three people during a Memphis shooting rampage. In announcing the decision, Mulroy said it's his duty to follow the law in Kelly’s case but maintained his general opposition to the death penalty.

    Funk also has said he personally opposes the death penalty.

    “I still follow the law, in that I review those cases and have a team of assistant DAs to work through the case to then provide any recommendations" about whether to seek death, the Democrat told The Associated Press in 2021.

    McKay has always maintained his innocence. His motion notes that the district attorney can seek a lesser penalty if case circumstances change, a possibility that would benefit McKay if he were granted a new trial.

    Shelby County Criminal Court Judge Paula Skahan is presiding over McKay's motion. She previously ruled that death row inmate Pervis Payne was intellectually disabled and unfit to be executed, removing him from death row.

    Attorneys fear the state could use the law to step into other matters in capital cases and argue against consideration of DNA evidence and intellectual disabilities.

    “The Attorney General’s intervention bill is fiscally irresponsible, unconstitutional, and an attack on the voters of Shelby and Davidson County, which will result in an unnecessary delay in the adjudication of death penalty cases by an entity that is not accountable to the voters,” said Kelley Henry, Payne’s lawyer.

    The attorney general's office said it will file its response to McKay's motion but declined further comment. Skahan set a June 2 hearing about the motion.

    https://abcnews.go.com/US/wireStory/...ction-99417536
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  4. #4
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    Shelby Co. judge says Tennessee attorney general can appeal death penalty review ruling

    By Lucas Finton
    The Commercial Appeal

    The Tennessee Attorney General's Office will be allowed to appeal Shelby County Criminal Court Judge Paula Skahan's ruling that a newly enacted state law unconstitutionally strips power from elected district attorneys.

    The law, which Skahan ruled unconstitutional on July 17, gives the state attorney general the power to prosecute collateral reviews ― reviews for errors in trials or sentencings ― of death penalty convictions. Those cases begin when a defense attorney files a petition of coram nobis, which is typically filed after other avenues for appeal have been exhausted.

    Shelby County District Attorney Steve Mulroy and Memphis defense attorney Robert Hutton argued against the law saying it violated people's voting rights, that the Tennessee General Assembly did not give proper notice to the public about the law and that it wrongfully removed jurisdiction from district attorneys.

    Skahan did not rule on the voting rights issue but ruled in favor of Mulroy and Hutton in the other two areas. Laws are ruled unconstitutional if a judge rules in favor of a single prong of an argument.

    In her reasoning for granting the appeal, Skahan cited potential harm for all parties by prolonging the case, preventing expenses from the attorney general having to argue similar cases and preventing potentially conflicting rulings from happening.

    "Currently, these same issues are pending or are likely to be pending soon before various trial courts throughout the state in eighteen other cases," Skahan wrote. "Given the absence of controlling authority, there is a substantial risk of inconsistent opinions on these questions throughout the state."

    The motion to challenge the law was originally filed by Hutton— who is representing Larry McKay, a man who is currently facing the death penalty.

    Issues of standing ruled on

    Skahan's ruling certified two questions for appeal. The first, which all three parties requested, is whether her ruling correctly found that the attorney general being assigned collateral review cases violates the Tennessee Constitution. The second, which was requested by Mulroy and Hutton, is if the AG should be disqualified for the Tennessee General Assembly not providing adequate notice when amending the bill.

    Although all three parties in the case agreed that an appeal should be granted, the attorney general argued that Hutton did not have standing to file to disqualify the attorney general from the case. Skahan, in her ruling, agreed with Mulroy and Hutton's arguments that the standing issue could be disregarded.

    "For the reasons set forth in DA Mulroy's and McKay's pleadings, the court finds that the issue of standing is moot," Skahan wrote. "The AG has specifically conceded DA Mulroy's standing to move for disqualification in his written submissions and in open court.

    The AG has affirmatively waived and knowingly forfeited any challenge to DA Mulroy's right to move for disqualification. DA Mulroy is a proper party and appellee in this cause, thus McKay's standing is utterly irrelevant."

    Skahan also confirmed her order for a stay in the McKay case while the appeal is pending.

    Her ruling was entered Tuesday, and the attorney general will have ten days to file the appeal, which the office has repeatedly indicated its intent to do, with the Tennessee Criminal Court of Appeals.

    The law was initially introduced as a bill to tackle rape kit backlogs but was changed to assign collateral review cases to the state attorney general. Mulroy and Hutton both argued that the law takes away autonomy from elected district attorneys and gives them to the unelected attorney general.

    Tennessee State House Minority Leader Rep. William Lambert, R-Portland, initially sponsored the legislation in the House and State Sen. Brent Taylor, R-Memphis, later joined as Senate sponsor.

    Opponents of the bill, like State Sen. Raumesh Akbari, D-Memphis, called it a “waste of resources and unconstitutional” on the Senate floor. Tennessee Democrats argued the attorney general's office was overstepping to wrest control from district attorney’s offices.

    The bill was signed into law on April 28, and Hutton — who is representing Larry McKay, a man who is currently facing the death penalty — filed the original motion the following Monday. Mulroy signed onto the motion the same day.

    Hutton had filed a petition for coram nobis on March 30, saying that new evidence in McKay's murder case from the 1980s could have changed the outcome of that original case.

    https://www.commercialappeal.com/sto...y/70543045007/
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

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