Georgia Attorney General Sam Olens’ office has 30 days to appeal the decision.
McNeil was found guilty of felony murder and aggravated assault in November 2006 after shooting a trespasser to his property, Brian Epp. Cobb Superior Court Judge Dorothy Robinson sentenced him to life in prison, with eligibility for parole after 14 years. He has served 5½ years of his sentence.
The Georgia Supreme Court upheld the conviction, 6-1, in November 2008. Then-Chief Justice Leah Sears was the lone dissenter.
The McNeil family tried once again to get their loved one released from the Georgia prison system last fall when they contacted Atlanta attorney Mark Yurachek, who filed a habeas corpus petition in January.
“The petition alleges that (McNeil) is being held in violation of some constitutional right,” Yurachek said Monday. “There were a number of violations that were alleged, that the (original defense) attorney had failed to bring a number of different important aspects of his defense to the jury’s attention.”
Yurachek said two of the major points the Baldwin County judge made in her ruling last week are that the jury was aware that McNeil was able to use deadly force to repel an attempt by someone to commit a violent crime or cause a violent injury against him but was not instructed that McNeil could use the same force to repel an attack on his son if he reasonably believed that imminent threat existed.
The petition was filed in Baldwin County because at that time McNeil was being held there. He was moved to Macon State Prison in Oglethorpe on Aug. 27.
Yurachek said a hearing was held in Milledgeville in early May. The judge’s ruling was made public last Wednesday.
He said the state attorney general’s office has 30 days to appeal the ruling, which would require them to file a one-page notice with the Baldwin County Superior Court.
“If they do that, it would be heard in Georgia Supreme Court, possibly sometime early next year,” he said.
If an appeal is not filed, Yurachek said the Cobb County District Attorney’s office could then decide whether to reinitiate the proceedings on McNeil’s case.
Cobb District Attorney Pat Head declined to comment on the case but said that habeas petitions are granted occasionally.
Yurachek declined to say how long it could be before his client is released if the attorney general does not file an appeal and the local district attorney’s office didn’t seek another case.
“(McNeil) understood from the get-go that winning at this level is a thrilling and great start, but it’s not the end of the line,” Yurachek said, adding that he spoke to McNeil after George’s ruling was filed. “There’s going to be a lot of state action before (McNeil) can really see the light of day. He understands that. He’s happy, thrilled and thankful for the grant of the petition, but I think the only time he’ll be truly happy is when he’s walking out of prison.”
The local and national NAACP have also been vocal in the case, holding a number of news conferences and rallies, protesting McNeil’s conviction and sentence.
McNeil is black and Epp is white.
In a release by the organization, McNeil’s wife, Anita, said: “I know we still have a journey in front of us, but today we smile, for we have won. We are thankful first to God and then to the judge. She looked at the case and saw it for what it is.”
The NAACP sent a petition to Olens with more than 14,500 signatures urging the attorney general not to appeal.
Cobb NAACP President Deane Bonner said she’s hopeful the attorney general will not appeal the ruling.
“We’re optimistic,” she said Monday. “The judge gave him that writ, so we have 30 days for the answer.”
Bonner said she never met McNeil but did have an opportunity to meet his wife, Anita, who has moved back to North Carolina where their family is originally from.
“She is a beautiful woman that I met probably a year and a half ago,” Bonner said. “She’s been back and forth here a couple of times and been with us a couple of times at our press conferences.”
The case stems from a confrontation between Epp and McNeil in the driveway of McNeil’s Kennesaw home on Earlvine Way on Dec. 6, 2005. Epp got into an argument over unfinished work he was doing for McNeil. McNeil shot Epp once in the head with a 9mm handgun, an action he claimed was taken in self-defense when Epp charged at him with a knife.
Cobb police, who arrived at the home shortly after the shooting, pronounced Epp dead at the scene. Both police and the county medical examiner said Epp was not armed when he was shot. A utility knife the homebuilder carried remained clipped to his pocket.
According to witnesses’ testimony, Epp and McNeil got into a confrontation after a history of disagreements during the completion of the home.
The trial began with jury selection Oct. 30, 2006, and he was sentenced about 10 days later.