Judge rules BSU trial can go on with expert testimony

INDIANAPOLIS – Expert testimony could persuade a jury that a \nBall State University student did not first charge toward a campus police officer who fatally shot him, ruled a federal judge who declined to dismiss the case.\n\nU.S. District Judge Richard L. Young on Monday refused to reconsider his previous order allowing the wrongful death lawsuit against Robert Duplain to go to trial.\nThe lawsuit was filed by the family of Mike McKinney, who was shot by the then-rookie Ball State officer on Nov. 8, 2003.\nMcKinney was shot four times by Duplain, who responded to a call of a stranger pounding on the door of the house about 3:30 a.m. Tests later showed that McKinney had a blood-alcohol content of 0.34 percent.\nA Delaware County grand jury cleared Duplain of any wrongdoing, but the family of the 21-year-old filed a $100 million civil rights lawsuit.\nDuplain’s attorneys asked Young to dismiss the suit, arguing that he had used reasonable force and had qualified immunity as a police officer. But Young denied the request in August 2005, noting that there was a factual dispute over whether McKinney had posed any threat to the officer. The 7th U.S. Circuit Court of Appeals in Chicago last September denied Duplain’s request on the same grounds.\nDuplain’s attorneys asked Young to reconsider, arguing that the statements of the expert witnesses should be inadmissible. Court records show that the experts – including two forensic pathologists and a ballistics and crime scene expert – generally inferred from autopsy findings and other evidence that Duplain fired the first two shots while McKinney’s back left side was toward him, likely while he was standing by a nearby tree.\n“This expert testimony provides evidence from which a reasonable jury could conclude that McKinney did not charge Officer Duplain before Officer Duplain fired his service weapon at McKinney,” Young wrote in the 15-page ruling. “If a jury were to believe those experts, Officer Duplain would not be entitled to qualified immunity.”\nYoung ruled that the expert testimony was admissible under Indiana law and that the proper legal remedy for the defense was not to bar the testimony but to cross-examine the witnesses.\nDuplain no longer works for Ball State police.\nTwo phone messages seeking comment were left at the office of Scott Shockley, the Muncie attorney who has represented him.