01/24/08 (IN):
Experts To Testify In Student Shooting Civil Suit
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A jury that began hearing testimony Tuesday will decide whether a rookie police officer used sound judgment when he fired four shots into student Michael McKinney, killing him.
The jury's answer will determine whether former officer Robert Duplain will pay damages to the student's family -- an amount plaintiffs hope will reach into the millions of dollars.
It's been more than four years since the confrontation between Duplain and a drunken McKinney, 21, in a backyard. Over the next two weeks in U.S. District Court in Indianapolis, the trial of the high-profile lawsuit will center on whether Duplain, then 24, used excessive force when he confronted a man he thought was a burglar.
McKinney had mistaken the house for one nearby where his friend lived. In November 2003, he rapped on the sliding glass back door after 3 a.m., prompting the resident to call 911.
Duplain and three other Ball State officers were the first to arrive. The attorneys dispute what happened next.
Geoffrey Fieger, a Michigan attorney representing McKinney's estate, said Duplain acted unreasonably that morning, entering the backyard and firing his gun in less than 30 seconds.
Experts will testify McKinney first was shot from behind, Fieger said, and finally in the head -- from less than a foot away, "execution-style."
"This case is to protect and defend officers who do their job," Fieger told jurors in his opening statement.
Defense attorneys' version contrasted starkly with that account. Duplain acted in self-defense, said Indianapolis attorney Bradley Williams, and had less than 10 seconds to respond when McKinney charged.
"Officer Duplain is not a cold-blooded killer," Williams said. "Officer Duplain went into the backyard to get control of a dangerous situation that had been reported."
He rebuffed Fieger's assertion that a Ball State officer should have anticipated a drunken student, noting the dispatcher was concerned because the call with the resident, Jane Poole, was disconnected before police arrived.
She and several neighbors who saw or heard the shooting are expected to testify later.
McKinney, a senior in marketing from Bedford, had recently shaved his head after posing as "Seinfeld" character George Costanza for Halloween, Fieger said. After a night out drinking with friends, his blood-alcohol content was 0.34.
His parents, Timothy and Lisa, and his three siblings sat quietly in Judge Richard L. Young's courtroom. Some sobbed when attorneys described Michael's shooting.
Fieger told the six-member jury he planned to ask for $25 million in compensatory damages. That makes $250 million the limit for punitive damages, he said, adding that a strong message needed to be sent to police officers.
But it's not clear whether Duplain, who is now the sole defendant, would be on the hook. After the jury left for the day, Fieger asked whether Ball State's liability insurance would cover any damages.
The defense attorneys said only that they would provide a copy of the university's policy, which they thought had already been turned over. Their trial brief, however, did say they anticipated the plaintiffs would "suggest to jurors that someone other than Robert Duplain will be responsible for a judgment."
Duplain never faced criminal charges and returned to the campus police, but he since has moved back to his hometown, Canton, Ohio.
A Delaware County grand jury cleared him in December 2004, and the U.S. Department of Justice investigated but took no action.
The McKinneys' attorneys plan to call Muncie Police Chief Joseph Winkle, whose department investigated the incident before it went to a grand jury. He has said Duplain acted unreasonably.
The jury heard from the first witness before adjourning Tuesday. Brent Archambault, also a Ball State student in 2003, was the last person to see McKinney before the shooting.
He noticed McKinney, whom he didn't know, crawling in a gutter. They talked for a few minutes, and McKinney -- nearly the drunkest Archambault had seen anyone -- said he didn't want a ride and was near his home, anyway.
"He pulled himself up onto the sidewalk area and leaned against a tree," said Archambault, now 27. "He had very slurred speech and was having a very difficult time carrying on a conversation with me."
© X-Pro 2008
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