SEPTA officer won't face murder charges

An off-duty SEPTA police officer who killed his unarmed Perkiomen neighbor will not face murder charges, Montgomery County prosecutors said, but some legal experts questioned whether the decision was premature.

Deputy District Attorney Thomas W. McGoldrick said the slaying of Joseph McNair Jr. did not fit legal requirements for a murder charge, though the investigation into SEPTA Police Sgt. Darryl Simmons' claim of self-defense was still open.

"Murder requires malice," McGoldrick said. "There are lesser crimes than murder that could apply. We're keeping an open mind, and we're going to do a thorough investigation in this case because a man is dead."

Results from an autopsy of McNair on Thursday are not yet in the hands of investigators, who have Simmons' account of the shooting and a history of clashes between the neighbors to consider.

Simmons has said he shot McNair in a street near their homes out of fear that McNair, who was known in the neighborhood to have a long arrest record, was reaching into his car for a gun. McNair had no gun on his person or in his car, police said.

That prosecutors would take the possibility of a murder charge off the table while still examining the 22-year police officer's self-defense claim suggested preferential treatment to some.

"In New York City, they'd have marches down Fifth Avenue right now over something like that," said Dennis Cogan, the defense lawyer when McNair was acquitted in a 2003 murder case.

Cogan said the killing sounded like "curbside justice" against McNair, described by authorities and neighbors as a threatening presence in an otherwise sedate suburb. Neighbors, including Simmons, had filed multiple nuisance complaints against McNair at a nearby state police barracks.

David Kairys, a Temple University law professor and civil-rights attorney, said it seemed "way too early" to rule out a murder charge in investigating McNair's death. Autopsy results and other tests would show such things as the angles and distances from which McNair was shot and establish whether Simmons' account jibes with what happened.

"What you don't want to see," Kairys said, "is just assuming that he was an officer, it was justified, and it's not murder. That may turn out to be true, but you don't want them prematurely assuming that.

"It just seems awful quick to rule that off the table."

Authorities have not disclosed how many times Simmons shot McNair. One of McNair's relatives said McNair was hit four times. State police said yesterday that searches of McNair's car found no weapons or illegal contraband, and that no other searches or witness interviews were planned. Simmons' .357 caliber revolver was found on the seat of his BMW.

Police did not search McNair's home after he was killed. A previous state police search of the Perkiomen home found no weapons, State Police Sgt. Andrew Skelton said.

More details also emerged yesterday about the lives of Simmons and McNair before their fatal confrontation.

Both men lived in homes purchased for more than a half-million dollars in their comfortable, hillside suburb. Simmons bought his house for $507,500 in December 2004. McNair lived in a house listed under his girlfriend's name and purchased for $515,000 in December 2005.

But beyond that, their histories diverged.

Simmons had been promoted to sergeant at SEPTA, a management-level job according to the transit police union, after receiving several merit commendations in the 1990s. His attorney said he had never fired a shot in 22 years of service, though a SEPTA spokesman would not confirm this or give details of Simmons' awards.

McNair's history contains a years-long pattern of arrests and prosecutions on serious offenses but few convictions.

Among them: In 2003, he went to trial on murder charges in the slaying of Keith Love, who was having an affair with a woman described as McNair's common-law wife. After being shot, Love had gasped to a 911 operator that McNair had fired the shots. Cogan told the jury that it was a case of mistaken identity. McNair testified in his defense, as did several alibi witnesses, and he was acquitted.

Philadelphia prosecutors dropped rape charges against McNair in 1999 for reasons that are unclear in court records, and they did not return a call seeking comment. And a Philadelphia judge in 2004 threw out a charge that McNair had beaten his 16-year-old daughter on the street, but issued a protection-from-abuse order against McNair.

McNair pleaded guilty to a federal drug charge in 1995 for his role in a crack gang but won a lower-than-normal prison sentence by cooperating with prosecutors, court records say.

Simmons' attorney, Charles D. Mandracchia, said the veteran officer was aware of McNair's troubled history when the two got into Wednesday's deadly confrontation.

"This situation created real fear in him," Mandracchia said of Simmons. "Joseph McNair [was] a dangerous person."