Not Guilty but Punished Anyway

SENTENCING DEFENDANTS BASED ON ACQUITTED CONDUCT VIOLATES BASIC NOTIONS OF JUSTICE.

- BILLY BINION

When Willonte Yates, Malik Perry, Dayonta McClinton, and three other young men arrived at a CVS on College Avenue in Indianapolis on a Tuesday night in October 2015, they were there to rob the pharmacy at gunpoint. It did not go as planned.

McClinton helped guard customers. Yates, who dubbed himself the “mastermind” of a string of similar robberies, led the charge with Perry. But their target, the safe, was equipped with a timed lock, meaning they would not be able to access the drugs inside for several minutes. Each passing moment meant the police could be drawing closer. So the group made off with a small bottle of hydrocodone—a sacrificial offering set aside by the pharmacy for situations like this one—along with kidney medication and cough syrup containing codeine. A getaway driver brought the group to a residential area. Perry, dismayed at how little they had to show for their efforts, allegedly declined to share the paltry proceeds. He exited the car.

Perry would not get very far. Someone followed him and shot him in the back of the head at close range. It is still unclear who that was.

The government zeroed in on McClinton, who was 17 at the time but was tried as an adult. At his trial in September 2019, prosecution witnesses testified that he and Perry were “like brothers...real close.” The witnesses said McClinton was Perry’s “best friend.” The same could not be said for Yates, the robbery ringleader: His girlfriend was “two-timing” him with Perry, according to testimony from Clevon Williams, who had participated in other robberies with Yates. But Yates, who was cooperating with prosecutors, had implicated McClinton. So had Williams, after spending a year housed in the same detention facility as Yates.

A jury didn’t believe them. It convicted McClinton for his role in the armed robbery but found him not guilty of killing Perry.

Then a judge sentenced McClinton for the murder anyway.