MCLENNAN COUNTY, Texas — McLennan County District Attorney Barry Johnson has handled thousands of cases since being sworn in two years ago. There is now at least one he wishes he could do over again.
On October 30 of 2019, visiting Judge David Hodges found Zachery McKee, who was accused of murdering a Waco AT&T employee Kenneth Cleveland, not guilty by reason of insanity. The case never went to a jury trial.
Cleveland died on April 22, 2016, after he was stabbed more than 20 times, beaten and set on fire in an alley where he was working. Waco police initially thought the cause of death was electrocution.
Judge Hodges accepted the insanity plea from McKee and ordered that he be committed to a maximum-security unit at the Austin State Hospital. McKee was evaluated by three different doctors. The third evaluation came after the first two disagreed.
"It looked to me like it was being handled in due course. We had opposing experts," Johnson said. "A third expert was hired to come in and break the tie and that expert found that he was insane."
Since April, however, Johnson has not allowed such cases to be resolved by a plea of insanity. He said the McKee case was one of the reasons for the change where they started requiring cases to go to court.
"It was one of the factors that went into my thought process once I realized, after taking office, that there seemed to be a lot more cases that didn't involve dangerous conduct where an expert said the defendant was insane at the time of the offense," Johnson said. "There seemed to be an inordinate amount of insanity defenses that were raised as opposed to having a trial court make that decision, those cases were being resolved by plea bargain... that had an effect on how I handle those decisions."
Johnson has since told the Waco Trib, and later told 6 News, that when looking back on the McKee case it should have gone to trial.
"The thing with that case is just the horrific nature of the murder, and the fact...the way the hearing was conducted... If I had to do it over again that would be a case because of the nature of the murder, that should be tried to a jury," Johnson said. "I've thought about the case regularly since the plea."
Family members of Kenneth Cleveland, including his three daughters, told 6 News that's a hard thing to hear as Christmas rolls around and they are once again without their beloved father. Daughter Amber Cleveland-Young said they had pleaded to have the case go do trial based on the phycological evaluations.
"We begged him to look at those and continue to press forward and that never happened," Cleveland-Young said "He had the opportunity to do it right the first time. He looked us in the face and lied to us and told us there were no other options."
"None of us wanted this insanity plea," daughter Pamela Mulbah said. "He told us straight from his mouth there was not another option and this is all that we can do...my dad didn't get justice!"
Perhaps even harder to hear in retrospect, Johnson told 6 News McKee would have most likely ended up in the same Austin mental hospital if a Jury had found McKee not-guilty by reason of insanity. Cleveland-Young told 6 News the family was robbed of the opportunity to get a guilty verdict.
"If you are guilty you are guilty. I don't know how you stab, beat, and burn another human being and aren't insane," Cleveland-Young said. "If a Jury would have seen that there was enough stuff we could have brought up for them to at least see he was guilty no matter what."
Johnson told 6 News there was no way that McKee could return to court to stand trial at this point. His message to the family was simply to let them know he believes McKee will never be released.
"I would just say, to make the family feel secure on that, that in my opinion there isn't any way this defendant will get out of the mental hospital due to the nature of this crime."
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