In a motion filed late yesterday, lawyers for Anthony McKinney have asked a Cook County criminal courts judge to hear new evidence that convicted killer Tony Drake was present for the 1978 shotgun slaying of a security guard -- and McKinney was not.
The evidence was provided by Jerome Phillips, a Harvey resident and brother of Wayne Phillips, the State's star witness against McKinney at his original trial. Wayne recanted his eyewitness testimony in an interview with Medill student-journalists. He has since died.
Last month, Jerome told a lawyer and investigator for McKinney that "Anthony Drake was at the scene with another guy and knows who committed the murder; Jerome saw a sawed-off shotgun--which he was sure was the murder weapon--in the bushes across the street from the scene; Wayne told Jerome who committed the murder; and the police threatened to pin the murder on Wayne if Wayne did not implicated Anthony McKinney," according to a motion seeking to take Jerome's deposition.
A three-year investigation into the McKinney case by the Medill Innocence Project included interviews with both Jerome Phillips and Tony Drake. In November 2003, Jerome told Medill student-journalists that his brother Wayne had been at the murder scene and identified four perpetrators, one of whom was Tony Drake. Jerome did not add that he also had witnessed the crime. And, in a May 2005 videotaped interview, Drake admitted being present at the scene with several other men. including the shooter. Drake told the Medill team that the murder was an armed robbery "gone bad" and that Anthony McKinney was innocent. McKinney has been incarcerated for 32 years and has steadfastly maintained his innocence since his trial.
Convicted killer Anthony Drake interviewed by
Medill student-journalists in
Swansea, IL on May 28, 2005.
The findings about Drake and other alternative suspects had been part of McKinney's post-conviction petition until Drake recanted to Cook County prosecutors and investigators in 2009, claiming he had received $60 in cab fare in exchange for his interview. The Medill team has denied the allegation. A receipt from the cab driver appears on this site, and Drake said on the videotape that he was not paid anything for his statement. Nonetheless, McKinney's lawyers at Northwestern's Center on Wrongful Convictions dropped the allegations against Drake in an amended petition filed earlier this year. In an about-face, the lawyers will ask Judge Diane Cannon tomorrow to reinstate the claims against Drake and to allow testimony by Jerome Phillips.
According to McKinney's lawyers, Jerome was also interviewed by state's attorney's investigators in December 2008, telling them McKinney was innocent. But the investigators' report did not say whether Jerome was asked about Tony Drake's possible involvement in the crime, even though the State's Attorney's Office had been informed about Drake's videotaped statement to the Medill team. Nor did the investigators' report of their interview with Drake four months later indicate whether they asked him about Jerome. That is undoubtedly an issue the lawyers from the Center on Wrongful Convictions will want to explore in Jerome's deposition.
However, because of the flip-flops by McKinney's lawyers -- Drake was prominently mentioned in the first innocence petition, removed from the second petition, and is now back in -- there is some question about whether Judge Cannon will approve a third petition that also will include Jerome. The lawyers have acknowledged that dropping the Drake evidence was "premature" and have apologized to the judge.
In another about-face, lawyers at the Center on Wrongful Convictions have filed a motion with Judge Cannon indicating they no longer support quashing the subpoenas by prosecutors for the notes and memos of Medill student-reporters who investigated the McKinney case. The lawyers originally argued that the subpoenas were overly broad and not relevant to the innocence petition. With the possible re-introduction of the Drake evidence, they now have a "change in position" about relevance.
They further claim to have discovered Medill students' notes and reports that had been in their possession, some which they apparently destroyed and others which they have asked Judge Cannon to review in camera to decide their relevance. Their motion to the judge did not describe the documents they chose not to destroy or how they obtained them, nor does it explain why they waited an entire year since the subpoenas were issued to make these admissions to the court.
"We have not received copies from the Center of the documents it has," said Richard J. O'Brien, the lead attorney from Sidley Austin who is representing Northwestern University and Medill in their efforts to quash the subpoenas. "So, we have no way of judging whether the documents are relevant to McKinney's claim of innocence or how the Center came into possession of the documents."
Oral arguments on O'Brien's motion to quash the subpoenas are expected in court tomorrow morning. Prosecutors have said they will try to enforce the subpoenas. They have not yet taken a public position on the latest evidence about Tony Drake, but have consistently claimed that Anthony McKinney was rightfully convicted.
--David Protess
June 23, 2010
(Updated June 25, 2010 12:15 p.m. CST)