Georgia Department of Law, from the office of Samuel S. Olens, Attorney General


McNeil Habeas Order To Be Appealed

October 17, 2012

At the request of the District Attorney of Cobb County, and after a careful review of the habeas court’s order and the entire trial transcript, this Office has determined that an appeal of Mr. McNeil’s case is both warranted and appropriate.  A notice of appeal was filed today in the Superior Court of Baldwin County.  In deciding whether to appeal, our role is limited to determining whether the habeas court correctly decided the legal issues.  It is not our job to second guess the jury.

This is an emotional case.  One side argues that Mr. McNeil was justified in defending himself when the victim threatened his son with a knife and then, upon Mr. McNeil’s return to his house, charged Mr. McNeil in Mr. McNeil’s front yard even after Mr. McNeil fired a warning shot and then shot the victim from less than three feet away.  The other side argues that Mr. McNeil had a long-running feud with the victim, told the 911 dispatcher he was returning to his house for the purpose of “whip[ing the victim’s] ass,” ignored the 911 dispatcher’s direction to stay in his car and wait for police who were already en route, and was untruthful to police on the scene about the victim approaching him with a knife. 

These two sides were presented to the jury, and the jury found Mr. McNeil guilty of murder.  Mr. McNeil appealed that verdict and argued the jury wrongly rejected his claim of self defense.  The Georgia Supreme Court disagreed and affirmed the racially-diverse jury’s verdict.   

The issue in this case is different.  The only issue in this case is whether Mr. McNeil’s veteran defense attorney represented him so poorly that the jury’s verdict was reasonably likely to have been different if the attorney had acted adequately.

Mr. McNeil’s veteran defense attorney vigorously pursued a finding of self defense at trial, and the jury was fully instructed on that defense.  The jury rejected that defense.  Mr. McNeil’s habeas counsel now argues that his trial counsel should also have requested an instruction to the jury on defense of one’s habitation.  However, the victim was shot in Mr. McNeil’s yard and there was no evidence that the victim was attempting to get into Mr. McNeil’s house.  The main question on appeal is whether, if the jury had been charged on defense of habitation, there is a reasonable probability that the result would have been different.  We will argue on appeal that it is unreasonable to think that a jury, after finding that Mr. McNeil did not act in self defense, would instead find that he was acting in defense of his home. 

Finally, it should be emphasized that the habeas court’s order, if left unappealed, would result only in a new trial.   The habeas court did not determine that Mr. McNeil was innocent of the charges brought against him, or that the prosecutor or jury acted out of prejudice or bias in the handling of his case.  Now that the appeal has been filed, it will be up to the Georgia Supreme Court to determine whether Mr. McNeil received an adequate defense and a fair trial.  In the meantime, and since an appeal necessarily contains an element of risk for both sides, the defendant and the district attorney are certainly free to entertain an alternate plea agreement that respects the judicial process and serves justice.      

Related Files: 
Notice of Appeal.pdf70.15 KB