ATLANTA — When he was on trial last year for the death of his two-week-old daughter, Chris McNabb did not cut a sympathetic figure.
Family members testified they didn't trust him. His extensive past of drug use and domestic abuse was examined in detail. He had face tattoos.
The most enduring moment of the trial, perhaps, came at the end: After being convicted of murder in the death of his daughter Caliyah McNabb, the father continued to maintain his innocence in an impassioned statement just before sentencing.
When Judge John M. Ott asked McNabb, if he in fact was innocent, how he would sentence the real murderer of his child, McNabb said with the max.
Judge Ott gave then him that sentence, life without parole. It has since become something of a meme.
The new lawyer for McNabb, however, says optics aren't enough to uphold such a serious penalty.
He told 11Alive on Tuesday he's filed a motion for a new trial in the case, and will primarily be calling on Judge Ott to assume the role of "13th juror." It's a shorthand term for the legal precept that judges can re-examine evidence when deciding whether or not to grant a new trial.
Georgia law provides that if the "verdict of a jury is found contrary to evidence and the principles of justice and equity," a judge may grant a new trial before a new jury.
"The judge can take a look at everything in its entirety to determine was this enough to prove the case beyond a reasonable doubt," McNabb's attorney, Titus Nichols, told 11Alive. "There were no eyewitnesses, no confession, no direct forensic evidence that Mr. McNabb caused the blunt force injury that caused the death of his child."
The evidentiary standard was a deep point of contention during the trial, with McNabb's defense lawyers at the time also making the argument that the prosecution had relied largely on character and circumstantial evidence - such as Caliyah's body being found in a bag of clothes that belonged to the father and his erratic behavior after she went missing.
Because of the condition in which the evidence was found and errors made in processing it, no scientific links to McNabb were established.
A jury nonetheless found it was enough to convict. Despite giving McNabb the life sentence, Judge Ott could still determine differently.
"Our hope, with the judge being able to review all the transcripts, the briefings, the hearings, is he'll come to a different conclusion," Nichols said.
There is precedent for such a reversal.
Just last year, a judge in Barrow County effectively overturned a murder conviction when he granted a new trial after saying he felt there had been "errors that were committed in that trial."
RELATED: He was convicted of murder by a jury of his peers within three hours, then the judge stepped in
It's an extraordinary power judges can summon. While they rarely do so, 11Alive's The Reveal uncovered at least a dozen Georgia judges who have done it in the past three years.
Nichols said in McNabb's trial, the prosecution and the jury were driven by the emotional circumstances of the trial: A two-week-old girl was dead, and there were few plausible alternatives to McNabb himself as the culprit.
"It's a situation where the prosecution was in a position of - they had a child that was killed, they can't just let it go. So they had to push the case forward cause you had the death of a 15-day old child, and that's why they waved away certain things," he said. "For example, it's a different thing with an adult as the victim as opposed to child. There's more focus on presenting direct evidence, as opposed to relying on circumstantial to convict."
McNabb, for his part, fiercely defended himself even after he was handed a life sentence.
"I just don’t understand how you find somebody guilty of doing something to a 15-day-old baby, because there was no evidence whatsoever that proved anything about me putting my hands on my kids," he said. "I've never done that. I never would."
According to his new attorney, that remains the case.
"Usually I don't go into discussions with my clients, but what I can say is yes he does maintain his innocence," Nichols said.
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