- Post 15 October 2012
- By Ray Henry, Associated Press
A Cobb County man convicted of murder could be released from prison after a judge ruled this week that legal mistakes were made at trial that unfairly undercut his argument that the killing was justified.
Baldwin County Judge Hulane George ruled Tuesday, Sept. 25 in favor of a motion seeking the release of John McNeil. McNeil has been serving a life sentence after he was convicted of murder for the 2005 killing of Brian Epp.
Georgia Attorney General Sam Olens has 30 days to decide whether to appeal to Georgia's Supreme Court, otherwise McNeil will be released from custody. Olens spokeswoman Lauren Kane did not immediately return a message seeking comment.
McNeil never denied shooting Epp. He told Kennesaw police that Epp was belligerent and had threatened his son with a knife during an altercation just before the shooting. A witness testified that Epp came onto McNeil's driveway, ignored a warning shot and charged at McNeil, who then fired a fatal shot.
The judge cited multiple errors at trial, including that the jury was not properly instructed on a person's right to use force to defend himself, his home or another person from violent attack.
Among her criticisms, George said the original defense attorney on the case should have sought a jury instruction explaining the so-called castle doctrine, which allows residents to use force to repel a violent intruder. The judge noted that eyewitness testimony showed the fight between McNeil and Epp happened within yards of the side door to the home where McNeil's son was hiding. Epp also had a knife.
''If the so-called 'castle doctrine' means anything, it is that a homeowner like McNeil, confronted with a hostile adversary with the clear intent to 'offer personal violence' to both him and his teenage son, can use deadly force when he is backed up to his home and that adversary is charging directly at him and reaching for a weapon, all after McNeil fire a warning shot in his immediate presence,'' the judge wrote.
The NAACP and other civil rights groups rallied at the GA State Capitol recently and had called for the release of McNeil, who is black. Epp was white. The civil rights groups have said the case proves that self-defense laws are not applied equally across the country. The leaders visited McNeil in the state Macon jail. McNeil's wife is facing cancer, which has widely spreaded.
The NAACP said last Saturday it has sent Olens a petition signed by more than 4,500 people asking that he not appeal the case and let McNeil go free.
''This is the first step towards righting the wrong (that) Cobb County made when it prosecuted a father for defending his family on his own property,'' NAACP President Benjamin Todd Jealous said in a statement. ''We are urging the state to not appeal this decision.''