Justice: Denied -- The Magazine for the Wrongly Convicted


Volume 1, Issue 11


The 19-Year Ordeal of Dwayne McKinney: Injured and on Crutches 30 Miles Away From a Murder Is Finally Recognized as an Alibi


By Hans Sherrer


On December 11, 1980, Walter Bell, the manager of an Orange, California Burger King, was murdered during a robbery that netted $2,500. Assisted by police detectives, the four Burger King workers who witnessed the murder identified Dwayne McKinney as the killer.

From the time he was first questioned, six days after the crime, Dwayne McKinney claimed he was an innocent victim of mistaken identity.

Several witnesses at McKinney's 1982 trial testified that they were with him at his Ontario home when the murder took place. McKinney's home was located

30 traffic-congested miles from the Burger King in Orange. The witnesses also claimed that at the time of the murder, McKinney had a leg injury and could walk only aided by crutches. However, the prosecutor used thinly veiled racist comments to denigrate the credibility of these witnesses, who were all low-income African-Americans.

There was absolutely no physical evidence linking McKinney to the robbery or the murder, and he didn't fit the killer's physical description that witnesses gave to police at the crime scene. The prosecution's entire case against him was the testimony of the four restaurant workers, who fingered him as "the man."

The four witnesses who identified McKinney are white. McKinney is black. It is well known that cross-racial eyewitness identification, particularly in high-stress situations, is fraught with inaccuracies and highly unreliable without corroborating evidence. The testimony of the witnesses, who underwent the trauma of seeing their manager killed, was further impacted by a detective who falsely led them to believe McKinney had confessed to the crime.

During jury deliberations, one juror held out to acquit McKinney. The other eleven jurors finally wore her down, and McKinney was convicted. However, the jurors didn't vote unanimously to sentence him to death, so he was sentenced to life in prison without the possibility of parole.

McKinney had every reason to give up hope of ever being released from prison.

Then, in 1997, a prison inmate wrote a "miraculous" letter to the Orange County public defenders' office. The inmate explained that he knew who had been involved in the Burger King heist, and that McKinney had nothing to do with it. The letter named the two men involved in the crime -- the getaway car driver and the gunman who killed Walter Bell.

During the ensuing investigation, the driver admitted his role in the robbery, and confirmed that McKinney was not connected with the crime. Also, two of the restaurant workers recanted their identification of McKinney as the killer.

The Orange County public defenders' office spent more than two years reconstructing the crime, re-interviewing all surviving witnesses, and building the case for McKinney's innocence.

By January of 2000, the evidence in favor of McKinney's innocence was so overwhelming that the Orange County District Attorney agreed to seek an order overturning his conviction, and Superior Court Judge Kazuharu Makino ordered McKinney's immediate release from the state prison in Lancaster.

On January 28th, Dwayne McKinney was a free man. He had been wrongly imprisoned for over 19 years.

Karen Sue McKusick, the lone juror who believed in McKinney's innocence but was badgered into voting guilty, said after his release, "I had a lot of guilt about not going with my gut instinct. I'm thrilled to death that he's out, but I'm sad that he had to waste all those years behind bars. I'm sorry it was my hand in this. We just have to hope Mr. McKinney will forgive us."

"I'm stunned," was the reaction of Denise Gragg, after hearing of McKinney's release. Gragg was the assistant public defender who filed McKinney's motion for a new trial in September of 1999. Though elated, Gragg wondered, "How many more innocent victims of the system are waiting on death row ... Any system in which the result is left to human beings is a system which is going to make errors."

The two former Burger King workers who recanted their testimony expressed relief at McKinney's release, but said they felt guilty because their mistaken testimony helped convict him in the first place.

Prosecuting attorney Rackauckas, who originally sought to have McKinney executed without a shred of physical evidence indicating his guilt, said that McKinney's case had done nothing to alter his support for the death penalty.

Indeed, McKinney was spared from execution only because the jury didn't support Rackauckas' request for a death sentence.

Dwayne McKinney, now 39, is living with friends in Costa Mesa, California while he adjusts to life on the outside.


"18 Years Later, Man Freed in O. C. Murder," Jack Leonard and Daniel Yi (staff writers), Los Angeles Times, January 29, 2000, p. A1.

"From jury box to witness stand, joy felt over McKinney's release," Bill Rams and Stuart Pfeifer (staff writers), Orange County Register, January 29, 2000.

"Reporter looks back on trial of McKinney," Staff, Orange County Register, January 29, 2000.

"Time turned out to be McKinney's savior: If prosecutors had secured the death penalty against him, he'd be dead by now," Tony Saavedra and Stuart Pfeifer (staff writers), Orange County Register, January 29, 2000.