Convicting the Innocent: Errors of Criminal Justice (1932)
by Edwin M. Borchard
Case #26

Clarence LeRoy McKinney


As was their duty, Henry Adams and Emory McCreight, the night police officers in Wilmington, Ohio, made it a regular practice to patrol the dark and questionable places of the town. This duty was brightened for them, on the evening of February 14, 1922, by occasionally slipping into Murphy's Theater, back stage, to see how the musical comedy, George Cohan's Mary, was progressing. After the show was out, between eleven and twelve o'clock, and after the two officers had gotten some pie and milk at Zimmerman's restaurant, they started to check over the down-town alleys – and entered the one skirting the post office on Main Street. No sooner had they reached the rear of Gallup's store when they heard a racket at the back of the neighboring hardware store of Murphy and Benham. The officers made out dimly two shadowy figures against the building. Adams called out, "What are you doing here?" "Looking for a dog," came the reply. "You are liable to get in bad in here," answered Officer McCreight, as Adams flashed his light full in the face of the nearest dog hunter. Pistols flashed! The two mystery men fired and escaped in a waiting automobile. Both officers were struck by bullets – McCreight mortally. He died the following afternoon.

Officer Adams was the only one who had really seen the burglars (it was discovered that they had been cutting their way through the rear door of the hardware store), and he had clearly seen only the one upon whom he had flashed his light. This one was fairly well built and had heavy eyebrows. He wore a short khaki coat lined with sheepskin, and a toboggan hat. This type of coat was popular among college boys in 1922, but others also wore them. The sheriff and his deputies immediately started checking the known owners of such coats and toboggan hats. Suspects were interviewed and questioned, without success, for over a week. The man hunt was spurred by the offer of a reward for the arrest and conviction of the murderer. The aid of W. H. Jackson of the Jackson Detective Agency in Cincinnati was enlisted by the county.

On February 24, Charles Smalley, a Clinton County farm hand, called at Officer Adams' home to get a description of the burglars. He said that very early on the morning following the murder, he had overtaken two men, whom he knew, sitting in a Ford coupe, which had a flat tire. They tried to get a tire from him. He said that in their car were many gallons of whiskey and they gave him a drink. As Smalley was leaving them, one of the men called, "Smalley, don't you never say a word you saw us on this road this morning." Smalley reported further that these two men usually visited a garage in Highland every Saturday night, and if the officers came out Saturday they could all go over there. Several officers went to Highland on Saturday with Smalley, but the men did not appear. Then Smalley gave the officers their names – Clarence McKinney and Jim Bill Reno of Cincinnati.

The following morning, Sunday, February 26, the officers drove to Cincinnati, obtained the cooperation of the local police, and arrested McKinney at his home. Reno was arrested later the same week. Both were lodged in the Clinton County Jail at Wilmington. McKinney and Reno were examined by many people. Ralph Moon and L. O. Carpenter identified them both as having been in Carpenter's Drug Store in Wilmington between ten and eleven o'clock on the night of the murder. One evening at the jail, a sheepskin coat and a toboggan cap were put on McKinney, the lights turned out, and Officer Adams flashed his light in the suspect's face, as he had done on the night of the shooting. From that moment forward, he was certain in his identification of McKinney as the smaller of the two burglars. The case was then submitted to the Grand Jury, which jointly indicted McKinney and Reno. They were also indicted for illegally transporting liquor in Clinton County on February 20, 1922.

The prosecuting attorney elected to try McKinney and Reno on the liquor charge first, in the hope that some facts might be developed in regard to the murder charge. In this he was disappointed, although both men were convicted on the liquor charge. Then came the trial on the murder charge. McKinney was tried first, the law of Ohio requiring separate trials in cases of first-degree murder. The case was tried before Judge Frank M. Clevenger of the Clinton County Court of Common Pleas and a jury of eleven men and one woman. The trial opened on August 20, 1922, and lasted over a week. The state was represented by the prosecuting attorney, S. L. Gregory, and by special counsel Joe T. Doan; the defendant, by J. G. De Fosset and R. L. Neff.

The case of the state rested upon the positive identification of McKinney as one of the burglars, by Officer Adams, upon the testimony of Moon and Carpenter that the prisoner and his companion, Reno, were in Wilmington on the night of the murder, and upon the statement of Smalley that he had seen them stalled on one of the roads of the county early the following morning. Twelve other witnesses were also called by the prosecution.

The defense counsel announced that the defense was a complete alibi. Over fifteen witnesses from Cincinnati were called to prove that on the night of the murder McKinney and his bride of a few months attended the Queen Anne Moving Picture Theater in Cincinnati, and that Reno was playing poker with friends at the home of his neighbor, George Reuhl. The witnesses were closely and effectively cross-examined by the prosecutors. Many of them remembered well the principal facts about the movements of the accused on February 14, St. Valentine's Day, but could remember little else that occurred about that time. The defendant testified in his own behalf, and on cross-examination the prosecution brought out the details of prior convictions and police difficulties. The testimony left a very definite impression with all present that the accused men were in the illicit liquor business, whereas the defense witnesses indicated that the principal occupation of McKinney and Reno was that of buying eggs and butter, and retailing them in Cincinnati. McKinney was forced to admit that, for days at a time, he did nothing but "monkey around" (he objected to its being called loafing), and that usually he had plenty of money.

In rebuttal, the state presented witnesses to show that immediately after the arrest the defendant and Mrs. Reno had said that the McKinneys and the Renos had attended the Auto Show in Cincinnati on February 14, the night of the murder. At the trial, it was proved that the show had not opened until the fifteenth. Both the defendant and Mrs. Reno denied making such statements at any time, averring that they had attended the show on the opening night, February 15.

The case was submitted to the jury by Judge Clevenger with appropriate instructions. The jury returned a verdict of guilty, with a recommendation of mercy. McKinney was accordingly sentenced to life imprisonment in the Ohio State Penitentiary at Columbus. He submitted to his fate, protesting his innocence.
Reno was not immediately brought to trial on the murder charge, but was held in jail, serving sentence on the liquor charge.


Months later, some young men came to the sheriff of Clinton County with a strange story. They reported, in a rather casual way, that one Louis Vandervoort, the nineteen-year­old son of a wealthy Jamestown (Ohio) family, had been bragging that he had shot and killed McCreight. The young men did not believe Vandervoort, for all his bragging. Nor did the sheriff; but as a matter of duty he had Louis arrested and questioned. To the sheriff's surprise, Vandervoort maintained that he had shot McCreight, and named a number of other burglaries in Clinton and Greene counties which he had committed. He even went so far as to tell the sheriff where some of the loot was hidden. The sheriff considered the boy partially insane. Nevertheless, he investigated; to his great astonishment the stolen goods were found where Vandervoort had indicated. Further investigations corroborated Vandervoort's confessions to such an extent that there could be no doubt about their truthfulness. Finally, Vandervoort named his accomplice in the McCreight murder, his nineteen-year-old companion, Walter Bingham. Bingham was immediately arrested. Under questioning, he also confessed. On February 14, 1923, just one year after the murder, Vandervoort and Bingham were indicted by the Grand Jury; and on February 20 and 21, 1923, they pleaded guilty to charges of second-degree murder and manslaughter, and received appropriate prison sentences.

At this time, McKinney's appeal case was still pending before the Ohio Court of Appeals in Cincinnati from a denial by the trial court of a motion for a new trial. On February 22, 1923, Judge Cushing ordered that the case be returned to the Clinton County Court of Common Pleas and that a new trial be granted. Mrs. McKinney, who had found employment in Cincinnati and had been working hard to raise money to prove her husband's innocence, went to Columbus with the sheriff of Clinton County and there met her husband on February 23, 1923. The sheriff and Mr. and Mrs. McKinney journeyed back to Wilmington together. The new trial was held before Judge Clevenger on February 24, 1923, and the case was nol-prossed by the State's Attorney. In ordering McKinney's release, Judge Clevenger is reported to have said: "You have been a victim of a miscarriage of justice. So far as this Court is able, it has made amends. You are now as free as any man in the state, and I, personally, and in the name of this Court wish you Godspeed."

In view of these developments, the fines in the liquor cases were suspended for both McKinney and Reno as a form of restitution. McKinney had spent five months in the Ohio Penitentiary, on a life sentence, for a murder committed by another.

Queerly enough, before leaving the court room on the day of his release, McKinney admitted to the court that he had been in Wilmington on the night of the murder, with a load of liquor, and that he had endeavored to establish a false alibi, not only to escape conviction for the murder, but also to avoid a possible liquor charge. This attempt at falsification proved to be a costly one.

The newspapers took a great interest in McKinney's case, and it was made the occasion for extensive editorial comment on the operation of criminal courts. One of the leading Cincinnati newspapers printed a statement from a prominent local judge:

There are many men in prisons all over America who are inno­cent of the crimes charged against them. But that is the misfortune all of us face. Any one picked up by the police may have to face circumstantial evidence which incriminates him. Ile may be innocent, but it is the duty of the prosecutor and the jury and the Court to deal with the evidence as presented. If an innocent man is convicted he has no recourse. He has to take the chance that all of us face. It happens infrequently, but when it does it emphasizes the plight of the imprisoned innocent man, without bringing out the fact that dozens of guilty men go free. It is unfortunate, but when such cases happen it is not the fault of our laws, but a trick of fate that cannot be forestalled.

It does not appear that McKinney's case was ever presented to the Ohio Legislature.


McKinney was the victim of mistaken identity, plus circumstantial evidence. When evidence of his prior convictions was introduced, his plight became critical. When his false alibi broke down, he was lost. By putting on him the khaki coat and the cap, the prosecution openly provoked an identification from Officer Adams. Yet McKinney had nothing to do with the crime. While he had been in Wilmington on the evening of the murder and the next morning, it was for quite a different purpose. The identification was absolutely false. The circumstantial evidence was equally untrustworthy. And yet, but for the corroborated boasting and confession of Vandervoort, McKinney would probably have served out his life sentence. His record made the conviction easy. It has already been observed that only under limited circumstances, where the previous record becomes an important issue in the case, should the accused be asked questions on that point. The question when put by the prosecution is highly prejudicial to the accused and is intended to be so. A question might arise whether the false alibi – which was not intended to defeat, but rather to help, justice – should deprive McKinney of compensation, under an indemnity statute, on the ground that he thereby contributed to his own conviction. It is believed that it should not be so considered. The untruth of the alibi may have prejudiced the jury, but McKinney can hardly be said thereby to have brought about his own conviction.


1. State of Ohio v. Roy Mack McKinney, Case No. 3661, in the Common Pleas Court of Clinton County. Transcript of Testimony and the Court's Charge to the Jury, 485 p.

2. Washington (D.C.) Star, February 21 and 24, 1923; New York Times, February 21 and 24, 1923; Columbus (Ohio) Dispatch, February 15, 21, 23, 24, 25, 1923; Commercial Tribune (Cincinnati, Ohio), February 21-25, 1923; Cincinnati (Ohio) Enquirer, February 21-25, 1923.

3. Acknowledgment: Hon. F. M. Clevenger, Wilmington, Ohio.