In July 2017, the Fair Punishment Project published a report entitled “The Recidivists: New Report on Rates of Prosecutorial Misconduct“. Amy Weirich, the District 30 DA in Shelby County, was one of the District Attorneys singled out for detailed attention.
We filtered out the Weirich material and brought the footnotes in-line for this focus on the Shelby County DA.
Direct quotes from the report are shown in “double quotes”. Additional material is in plain text. Editorial comment is shown in italics.
“Prosecutors wield extraordinary power in the criminal legal system. How they exercise their power can be the difference between fairness and inequality, justice and corruption, and a community with faith in its justice system or one that feels betrayed by it. Newspapers across the country have featured elected prosecutors and their offices where there have been failures to use this authority ethically, and in many cases, where prosecutors have engaged in illegal behavior in order to win convictions.”
Comment on study methodology
The study is based on disciplinary proceedings involving fifth and fourteenth amendment misconduct that was sanctioned by the state Board of Professional Responsibility.
Our research suggests that the BPR is itself corrupt, rubberstamping even more egregious misconduct. We have seen, in the cases of April Malone and Celitria Watson, Earley Story, Tony Carruthers, and Thorne Peters where evidence was not just hidden, but actively fabricated by prosecutors in conjunction with law enforcement. Despite many reports of prosecutors to the BPR, they have failed to take action in any of these cases.
Our impression is that the Tennessee Board of Professional Responsibility only sanctions prosecutors and defense attorneys when there is media attention on the cases.
“Earlier this year in Memphis, Shelby County District Attorney Amy Weirich faced formal disciplinary proceedings after the Tennessee Supreme Court concluded that she withheld key evidence from the defense in a murder trial and made improper arguments during her closing statement. This kind of misconduct has devastating results on people’s lives.”
“Amy Weirich has been a prosecutor in the Shelby County District Attorney General’s office since 1991, and she has been the Shelby County District Attorney since 2011. In the time period we reviewed, the Shelby County District Attorney General’s Office had the highest number of misconduct findings—with more than a dozen—and the most reversals in Tennessee. Adjusted for population, out of the 95 counties in Tennessee, 89 percent had fewer misconduct findings per capita than Shelby, and 94 percent of counties had fewer misconduct-based reversals per capita. Leaders set the tone for an organization, and a look into Amy Weirich’s own record of misconduct, illustrates why Memphis cannot shake its misconduct problem.”
“The scope of misconduct in the office has included offenses such as failing to disclose relevant evidence to the defense, known as a Brady violation, as well as inappropriate conduct and statements during trial.”
The Nuora Jackson case
“Weirich committed two different types of misconduct in a case involving a defendant named Noura Jackson, who was accused of killing her mother. The misconduct was so egregious that the Tennessee Supreme Court overturned Jackson’s conviction in 2014, and chided Weirich for attempting to sway the jury by making inflammatory comments about Jackson’s constitutionally protected decision not to testify.”
“Given that the impropriety of any comment upon a defendant’s exercise of the Fifth Amendment right not to testify is so well settled as to require little discussion, it is not at all clear why any prosecutor would venture into this forbidden territory”.
Fifth Amendment Comment
“From the Tennessee Supreme Court 11/6/2013 judgement (PDF), page 31, “the lead prosecutor [Amy Weirich] began final closing argument by walking across the court room, facing Defendant, and declaring in a loud voice, while raising both arms to point at and gesture toward Defendant, “Just tell us where you were! That’s all we are asking, Noura!” Defendant contends that the lead prosecutor’s statement, body language, and tone of voice could only have been understood as a command for Defendant to tell the jury where she was on the night of the murder.” This is a clear violation of the 5th amendment where failure to testify cannot be used as an argument of guilt”.
A Brady Disclosure is the requirement for prosecution to turn over all potentially exculpatory evidence to the defense.
“Unfortunately, that was not the only misconduct that occurred during the case. Under the Fourteenth Amendment, the government has an ironclad duty to disclose exculpatory material – known as Brady evidence – to the defense prior to trial. Despite numerous defense requests for that material, the government withheld an inconsistent statement by its star witness which suggested that he had fabricated key pieces of his testimony – namely, his testimony placing Jackson at the crime scene during the time the murder occurred. This was particularly damaging given the witness’s status as an alternative suspect in the murder and the government’s lack of any direct evidence implicating Jackson.”
From the Tennessee Supreme Court 11/6/2013 judgement (PDF), page 41 “Defendant claims that the prosecution violated her constitutional right to Due Process, and in particular the principles announced in Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide to the defense Andrew Hammack’s third statement to the police until after the trial. The defense points out that, despite multiple and specific pre-trial requests for any statements Mr. Hammack had given the police, and a mid-trial request for Brady materials, the prosecution did not provide Mr. Hammack’s third statement until after the trial. The State concedes that the prosecution did not produce Mr. Hammack’s third statement in a timely manner”.
“In December 2015, the Board of Professional Responsibility recommended [PDF] that the Tennessee Supreme Court issue a public censure against Weirich. The Tennessee Board of Professional Responsibility also filed a supplemental petition for discipline based on the Brady violation and Weirich’s failure to exercise appropriate diligence in reviewing statements and making disclosures to the defense team. In March of this year, the Board dismissed the disciplinary petition and issued a private reprimand.”
While the proceedings have been covered well by local media, one less-explored aspect of filings recently made available further reveals the depths to which Ms. Weirich is willing to stoop to avoid accountability. She responded to the Board’s initial petition for discipline by filing a motion for summary judgment in the hopes of having the petition dismissed without a hearing. The basis for the motion? Ms. Weirich essentially claims that the Board’s allegations have no merit because the judges who have reviewed the underlying criminal case never reported her. That’s right. Because state judges evidently failed to comply with their own code of conduct, Weirich reasons that she should be let off the hook.
See: TN: Amy Weirich’s Eye-Opening Response to the Tennessee Board of Professional Responsibility in Prosecutorial Misconduct and Accountability Nov 14, 2016
Anthony Bond and Andrew Thomas
“Jackson’s case was not the first time Weirich had been warned about making inappropriate and inflammatory comments during trial. In a 2004 capital murder trial, Weirich utilized her opening statement to repeatedly call the co-defendants “greed and evil,” using that phrase a total of 21 times in the opening and closing arguments. The Tennessee Court of Criminal Appeals reminded Weirich that “[i]t is improper for the prosecutor to use epithets to characterize a defendant,” referring to her argument as “unseemly.”” https://www.tncourts.gov/sites/default/files/bondanthonyopn.pdf
“And yet after the court granted one of the two co-defendants a new trial, Weirich again engaged in an “improper” argument, blaming the defendant for requiring jurors to expend “time and trouble” on the trial – a comment meant to bias the jury against the defendant”. https://www.scotusblog.com/wp-content/uploads/2017/10/17-291-petition.pdf
“In 2004, in a separate case, Weirich accused a man named Vern Braswell of killing his wife. Braswell claimed he choked his wife during kinky, consensual sex but that she was alive, although not feeling well, when it was over and eventually died that night while in the tub. As the prosecutor and defense attorney delved through Weirich’s files while preparing for the post-conviction case, they made a troubling discovery — a suspicious sealed manila envelope with a sticky note on it containing the phrase “Do not show defense,” initialed “A.P.W.””.
Toby Sells, Attorneys Say DA Weirich Hid Evidence in Murder Trial, Memphis Flyer (Nov. 21, 2014).
“The original prosecutor on the case was none other than Amy P. Weirich. The post-conviction prosecutor then asked Weirich for permission to open the manila envelope. Some time later, the envelope disappeared. The defense has requested a new trial. In 2014, during a hearing on the matter, Weirich claimed both ignorance and lack of memory, “[i]f there were such an envelope and there were such a notation, no, I don’t recall doing that and that was not and is not my practice.” The case is still pending.” Toby Sells, The Brady Bunch: District Attorney Amy Weirich’s Prosecutorial Tactics Come Under Fire Again in a Steamy Sex-and-Murder Trial, Memphis Flyer (Jan. 15, 2015)
“Michael Rimmer was convicted in two trials (in 1998 and 2004) of killing a hotel clerk whose body has never been found. He was granted a new trial in December 2013 because Thomas Henderson, a high-placed, veteran attorney in the Shelby County District Attorney’s office, did not give relevant evidence to Rimmer’s defense attorneys.
For this, the Tennessee Supreme Court’s Office of Professional Responsibility ordered a public censure of Henderson. The censure was a “public rebuke and a warning to the attorney, but does not affect the attorney’s ability to practice law,” according to a news release issued from the office at the time. Henderson also had to pay the court costs associated with the censure, which totaled $1,745.07.
Henderson argued the state’s case on both of Rimmer’s trials. Weirich pulled him from the new trial after the censure. She called this a “punishment” and a “huge step, and it was a tough conversation to have.” She ordered no other discipline”.
As of July 11, 2017, the case was still pending.
“In yet another case, the Sixth Circuit Court of Appeals reversed a conviction in a death penalty case after Weirich failed to disclose that one of the main witnesses was paid for her cooperation in the companion federal case. Although Weirich claimed she did not know about the payment, under the Constitution Weirich had a duty to discover and disclose this information prior to trial”.
See Thomas v. Westbrooks, 849 F.3d 659 (6th Cir. 2017); Katie Fretland, DA Amy Weirich Says She Didn’t Know About Witness Payment, The Commercial Appeal (Nov. 9, 2016)
See Toby Sells, Tennessee AG: Weirich Had No Knowledge of Secret Payment, Memphis Flyer (Nov. 9, 2016).
— Concluded —