Court Dismisses Charge Against Man in Death of Deformed Son

CHICAGO —  A Cook County judge dismissed a murder indictment Friday against a veterinarian who was twice tried on charges that he killed his deformed newborn son by throwing him on the floor of the delivery room.

Both murder trials of Daniel McKay ended in a mistrial when jurors could not reach a verdict. McKay was charged with killing his son June 28, 1983, moments after the child was born with a cleft palate, harelip and webbed fingers.

After the second trial ended Oct. 9, 1987, the decision on whether to throw out the indictment was left to Associate Circuit Judge Will E. Gierach, who dismissed the indictment Friday.

Prosecutors said they will appeal and seek a third trial against McKay.

“I believe the judge is wrong on the facts, and wrong on the law,” Cook County State’s Atty. Richard M. Daley said. “This decision must be appealed to meet our obligation to seek justice for the dead baby.”

Gierach based his decision to dismiss on the Fifth Amendment and the due process clause of the Constitution, defense attorney Patrick Reardon said.

“He felt there had been double jeopardy,” Reardon said. “But even if there hadn’t, he felt he had the authority as the trial judge to use his discretion in protecting the defendant.”

No court date was set for the appeal by prosecutors.

McKay, 39 of suburban Beecher, has admitted killing his son but said he was temporarily insane at the time he threw the infant to the floor at the Ingalls Memorial Hospital in Harvey, Ill., in front of witnesses.

McKay’s first mistrial in 1985 ended with jurors deadlocked at 10 votes for “guilty but mentally insane” and two jurors voting for “not guilty by reason of insanity.” The second trial ended Oct. 9, 1987, with 10 jurors voting for “guilty” and two holding out for “guilty but mentally ill.”

Both sentences would have carried a minimum sentence of 20 years in prison.