Prosecutors had sought an indictment for first-degree premeditated murder against Eric McLean, 31, in the March 10 shooting of 18-year-old Sean Powell. A judge ruled there was probable cause to bind it over to the grand jury.
But the Knox County panel refused to indict McLean on the stiffer count in a decision reached May 2 after meeting behind closed doors. McLean, released on $150,000 bond in April, is expected to be arraigned in a couple of weeks and have a trial date set.
"Needless to say I am just thrilled as I can be," defense attorney Bruce Poston said. "This is a major, major positive step for Eric McLean. When you take first (-degree murder) off the table, it changes the whole trial strategy." The prosecution played down the grand jury decision. "What is there to comment on?" said John Gill, special assistant to District Attorney Randy Nichols. "We gave the evidence to them and they returned (an indictment) on what they thought the charges should be." The grand jury's decision "tells you the public's perception" of the case, Poston said. From a possible life sentence for first-degree murder, McLean now could face something considerably less if convicted. Second-degree murder carries a maximum of 25 years in prison; voluntary manslaughter carries three to six years with the possibility of parole and probation. Both are for a "knowing killing," but voluntary manslaughter can be caused by "the heat of passion," Poston said. The defense has portrayed McLean as a loving husband driven to a desperate act when confronted by an affair between Erin McLean, his wife of 11 years and mother of their two small boys, and her former student, Powell. McLean acknowledged in a jailhouse interview with NBC's "Today" show that he shot Powell, but said it was an accident. Poston suggested in a preliminary hearing that a struggle preceded McLean's gun going off. Authorities say Erin McLean met Powell when she became a practice teacher at his high school last fall. An audiotape from an emergency call the day of the shooting was played in McLean's preliminary hearing March 27. He is heard telling dispatchers that an intruder, whom he identified as Powell, who was refusing to leave the McLean house. Another tape was played of an emergency call 7 minutes later made by Erin McLean. She is heard screaming for help and saying her husband had just shot Powell while the boy was sitting in his car in front of the house. Court records attached to the indictment listed several witnesses, including pathologists, neighbors and Erin McLean. But Poston said only a few police officers likely appeared before the grand jury and the rest will be witnesses at the trial. "It is toe to toe now with the state," Poston said, looking ahead to the trial. AP-CS-05-10-07 1746EDT