Baldwin County Judge Hulane George ruled last month that legal mistakes at trial unfairly undercut John McNeil’s argument that the killing was justified. McNeil has been serving a life sentence after he was convicted in the 2005 killing of Brian Epp.
If Attorney General Sam Olens had not filed an appeal within 30 days of George’s Sept. 25 ruling, it would have been up to Cobb County District Attorney Pat Head to decide whether to retry McNeil on the felony murder charge he was convicted of or to let him be released.
Head said in May the case is a reminder of the potential pitfalls of self-defense arguments.
Olens decided to file the appeal at Head’s request, the attorney general’s office said in a statement.
“We’re obviously disappointed,” McNeil’s lawyer Mark Yurachek said. “But we’re confident the Supreme Court will agree with Judge George on the position that John deserves a new trial in this case.”
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 Epp came onto McNeil’s driveway, ignored a warning shot and charged at McNeil, who then fired a fatal shot.
The case is an emotional one, with McNeil’s defense arguing self-defense against a deadly threat and the state saying McNeil and Epps had a long-running feud and McNeil ignored a 911 dispatcher’s directions to wait for police,
but ultimately McNeil received a fair trial, Olens’ office said.
George 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.
“The main question on appeal is whether, if the jury had been charged on defense of the habitation, there is reasonable probability that the result would have been different,” Olens’ office said.