Vern Braswell: Overcharge and Brady

Vern Braswell, is serving 24 years for second degree murder at Northwest Correctional Complex in Tiptonville, TN.

In July 2020, he received an envelope in the mail. The sender’s name was given as Linda Fairstein, the prosecutor of the Central Park Five in New York, and the return address was a parking lot across the street from 201 Poplar, the Shelby County courthouse and jail.

Inside the envelope was an anonymous cover letter and nine letters from Mr. Braswell’s original case.

The Braswell family

The prosecutor in Mr.Braswell’s case was Amy Weirich, the current Shelby Co. District Attorney, who is up for election this year. There is new evidence of material, in a sealed envelope with a sticky note initialed by Weirich saying that the contents should not be revealed to the defense. Some of the contents of this envelope turned up in 2020.

District Attorney Amy Weirich

The Anonymous Letter

Download the letter (PDF). The writer is evidently an insider in the District Attorney’s office, who had been overcome with guilt during the George Floyd protests. The nine documents were originals or photocopies of letters of reference sent to the judge as character references in May 2005 for Vern Braswell’s bail hearing. These would have been useful during Mr Braswell’s sentencing and appeals, but were missing at that time.

The anonymous letter writer alluded to additional evidence which also went missing, related to details of Vern and Sheila Braswell’s sexual practices. It became clear to the police that the Braswells regularly engaged in choking during sex, which, if it has been known during the trial, would have shown that second-degree intentional murder was an overcharge for what was, in all probability, the result of an accident during sex play.

The letter writer said the evidence has been kept in a sealed envelope and hidden from the defense.

There was also a reference to the fate of his attorney for the post conviction reviews and appeals, Taylor Eskridge. Incarcerated people are generally indigent, and are assigned attorneys by the judge. Small time attorneys can become financially dependent on this revenue stream, so, if judges block them, they can, like Taylor Eskridge, lose their livelihood.

Nine Character References

The nine character reference letters were written in or around May 2005 in support of Vern Braswell’s bail application.

All nine letters start with how the writer knows Vern Braswell, continue with a description of some of Mr. Braswell’s good works, which are very good indeed, and conclude with an opinion that Mr Braswell would attend all hearings if granted bail.

The documents were examined by Thomas Vastrick, a forensic document examiner. (PDF).

Sharon Weeks, Vastrick’s exhibit 5, told of how Braswell arranged for a hotel for a family in his school who lost their home. (PDF).

Darnell Gardner, Vastrick’s exhibit 2a, which also had an affidavit from the writer confirming he sent the letter, had a live ink signature which Vastrick confirmed matched the contemporary signature on the affidavit. Letter (PDF). Affidavit(PDF). The letter spoke about Braswell’s volunteer work counseling alcohol and drug dependent people, especially in the Shelby County prison system.

Craig Cunningham, Vastrick’s exhibit 4a, which also had an affidavit from the writer confirming he sent the letter, had a photocopied signature which Vastrick confirmed matched the contemporary signature on the affidavit. Letter (PDF). Affidavit(PDF). Cunningham was Braswell’s fraternity brother and recounted an anecdote about Vern and Sheila Braswell. This was dated May 2nd, 2005, the only reference letter with a date, although all four affidavits stated the references were sent in May 2005.

Freddie Hunt, Vastrick’s exhibit 7, wrote about Braswell being a fellow member of a 12-step program. They both volunteered to work with addicted incarcerated people. (PDF).

Frank Cotton, Vastrick’s exhibit 8, Memphis Fire Department chief, and Braswell’s frat brother, spoke about Braswell’s charitable work with the fraternity. (PDF).

Myles Wilson, Vastrick’s exhibit 9, Myles Wilson wrote on Fayette County Schools letterhead, where he was Superintendent and Braswell’s former employer. He wrote enthusiastically about Braswell’s raising of funds to provide an educational trip for disadvantaged students. (PDF).

Brian James, Vastrick’s exhibit 6, a school friend and fellow Mason, wrote about Braswell’s influence on James’ education. (PDF).

Benjamin Thomas, Vastrick’s exhibit 1a, which also had an affidavit from the writer confirming he sent the letter, had a photocopied signature which Vastrick confirmed matched the contemporary signature on the affidavit. Letter (PDF). Affidavit(PDF). Braswell volunteered for a football program with underprivileged kids.

Aubrey Burnett, Vastrick’s exhibit 3a, which also had an affidavit from the writer confirming he sent the letter, had a photocopied signature which Vastrick confirmed matched the contemporary signature on the affidavit. Letter (PDF). Affidavit(PDF).

In summary, the nine character references, the whistleblower’s “record of community support” constitute, with the cover letter, the entire package as received by Mr. Braswell. The whistleblower felt that, if this material was available to the appeals court, that Mr. Braswell’s conviction or sentence would have been overturned.

The Character References

Broadly, the accumulated character references paint a picture of an engaged, successful Black community leader, exactly the sort of person chosen when the ruling establishment makes an example of Black influencers.

The OverCharge.

Toby Sells, in a 2015 article in The Memphis Flyer, describes the case:

  • Now comes the case of Vern Braswell, who claims he didn’t murder his wife, Sheila Braswell, in 2004. He says they had rough sex the night she died, and he choked her until she passed out. But he claims she liked it that way, that the couple had a kinky sex life, and on the night of her death she asked for a “fixie,” their term for a round of erotic asphyxiation. 
  • But Braswell has a history of choking women as a hostile act, according to testimony recorded in court papers. He also had been seeing another woman right up until the time of his wife’s death. Divorce papers were found in Sheila’s purse after her death, and she had sought an order of protection from her husband. 
  • On the night of her death, Braswell says he and his wife were in the couple’s jacuzzi. They got intimate and moved to their bedroom “as a result of inadequate lubrication” in the jacuzzi. They got out of the bath and into the bedroom and had sex, sex that included a “fixie.” Afterward, Sheila complained of cramps in her abdomen and got back into the couple’s jacuzzi. 
  • Vern said he went to bed, where he waited for a show called Erotic Confessions to come on. He said he fell asleep at about 1:30 a.m. When he woke at about 3:40 a.m., Sheila was not in bed. Vern Braswell claimed she was in the bathtub with the jacuzzi jets still running. She showed no signs of life, her face and head were submerged in the water. He said he tried to remove her from the tub but couldn’t. He said he called 911, then a police friend of his, and then other family and friends to try to get help.

This goes to the crux of the case. Vern Braswell was charged with first degree murder, and convicted of, and given twenty four years for, second degree murder, a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility. If the crime was criminally negligent homicide, a Class E felony in Tennessee, the sentencing range would have been one to six years.

The whistleblower writes about “Was it not crystal clear why the investigators began asking witnesses about choking during sex out of “nowhere”? Was it not crystal clear why some of the case notes were about sexual topics…”. There was also “information on you and her in the clubs”, meaning Vern and Sheila. The whistleblower concluded this thought with “When information is in an envelope it is easy to claim mistake”.

We infer that the mysterious envelope with Amy Weirich’s initials also contained material relevant to the overcharge, possibly including witness statements made to police.

It is unclear why the whistleblower provided only a selection of the material in the envelope. She must expect that some future investigation might be looking for the envelope and anyone at 201 Poplar who might know about it.

In the meantime, there are some items in the record that provide clues about the other contents of “The Envelope”.

The Braswells’ Hobbies

The crux of the overcharge relates to evidence withheld by the prosecution during trial that showed the Braswells had engaged in consensual choking during kinky sex. If known, this would have made an accidental strangulation more likely, and intentional murder less likely. This might have resulted in sufficient doubt of the murder charge for Mr. Braswell to be acquitted or, at least, for the charge to be reduced to non-intentional manslaughter.

Braswell’s trial attorney, Javier Bailey, testified later, during a post evidentiary hearing, that multiple witnesses, including a Ms. Emallisha Monique Lane, stated that the Braswells had engaged in consensual kinky sex. Bailey apparently failed to use this because he was afraid of turning jurors against the defendant with the lurid details.

Vern Braswell

Sgt. William Merritt gave testimony during the post conviction review that he had asked witness Ms. Sharonda Smith if the Braswells had engaged in strangulation play, in a transcript which was forwarded to the Attorney General. Smith recounted that Sheila Braswell has said that Vern Braswell liked “rough sex” and anal sex, and has expressed a passing interest in S&M devices. When Merritt asked her about strangulation, she had no information.

The defense team later obtained Karen Taylor’s witness statement from the police, which also revealed a run-in Sheila Braswell had with a lady named Kristie Wood who was having an affair with Vern Braswell, and subsequent divorce moves. Ms Taylor also recounted a conversation with Sheila Braswell, where an unidentified woman friend of Vern’s had joined the couple for a threesome. The couple visited strip clubs on occasion.

This transcript (PDF) is from the 2017 Appeal, where Ms. Emallisha Monique Lane, on page 53 of the appeal report, testified that she had made a statement to police about encounters she had with the Braswells, over a two year period, in which the Braswells had engaged in consensual choking as a sexual act. Ms Lane was not sure when she gave her statement.

It appears, as the whistleblower implied, that there were more than the eleven pages she sent in the anonymous envelope.

The 2017 appeal report, which recounts (on page 18) the April 4th, 2011 meeting between defense counsel Taylor Eskridge and prosecutor Doug Caricker. Caricker testified that he found the sealed manila envelope with the sticky note initialed by Amy Weirich. He estimated the envelope was approximately a half inch thick, which, at the average thickness of 20-lb paper, would be about 125 pages.

Clearly, there was a lot more material in the fateful envelope than the whistleblower sent. From the known existence of police statements about the Braswells’ sexual proclivities and erotic choking in particular, and from the whistleblower’s letter, it is reasonable that a lot of the hidden material would have strengthened a defense of involuntary and accidental death.

A more detailed account is contained in How Courts Handled Evidence in a Black Man’s Trial and A White Judge’s Attitude Toward a Black Man in Court

Weirich’s Other Brady Violation

We previously wrote about Amy Weirich’s other Brady violations.

Nuora Jackson


Weirich had a private reprimand from the Board of Professional Responsibility in the case of Nuora Jackson, who was freed and . One of the two problems in the case was a Brady violation.

“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”.

Any Weirich

“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.





Marvell Locke’s Death

Marvell Locke (59) died at the hands of Circle K store clerk Nicholas Vitatoe, on May 19th, 2020.

Marvell Locke

As reported by Action News 5 later in 2020, Marvell Locke is seen on security video as he approached a clerk at the Circle K located at 8971 US 64 on May 19th, around 1:30 AM. He asked the clerk, Nicholas Vitatoe, if he could clean the lot. Marvell Locke occasionally made a few bucks from local businesses doing odd jobs.

Mr Vitatoe tells Mr. Locke to leave, then calls the police and texts his manager. At some point, Mr Locke exits to the parking lot. Mr Vitatoe then says he will not wait for police and will take care of this himself. Mr Vitatoe exits the store and out of camera view. A shot is heard, and Mr. Vitatoe re-enters the store and places a black handgun on the counter.

Nicholas Vitatoe

Responding police found Mr Locke’s body DOA in the parking lot and arrested Nicholas Vitatoe, charging him initially with involuntary manslaughter. He was taken to 201 Poplar and immediately released on his own recognisance.

Mr Vitatoe was indicted on June 3, 2021 for second degree murder, and, on March 22, 2022, he entered a guilty plea to that charge. He has not yet been sentenced as of June 7 2022.

Family sues

On September 3, 2020, the estate of Marvell Locke filed a wrongful death suit (PDF) against Nicholas Vitatoe, Circle K and others seeking damages. This case is still in progress, and attorney Howard Manis of the Cochran firm declined to comment on June 7 2022.

Authorization of Agency

Excerpt from the MPD affidavit of complaint for Nicholas Vitatoe.

The above is the affidavit of complaint filed against Vitatoe by MPD on May 19th 2020, showing the original involuntary manslaughter charge.
The affidavit mentions that there was an Authorization of Agency (AoA) in force for Marvell Locke at the Circle K premises. The AoA was also mentioned in this News 3 article which was likely informed by the affidavit.
In fact, there is no AoA filed against Marvell Locke for the Circle K.

Our AoA database.

We have created an Authorization of Agency database. This spreadsheet (XLSX) contains indexed AoAs from late 2016 to July 2019. This Zip file has the raw AoA data from July 2019 to February 2020, and this Zip file has the raw AoA data from February to August 2020, as received from MPD via FOIA.
The AoA for Circle K mentioned in the Nicholas Vitatoe affidavit of complaint does not exist in the FOIA data.

Marvell Locke’s Only AoA

Marvell Locke’s only Authorization of Agency

The above is Marvell’s only AoA in the database. It was created in March, 2019 for the Best Western Hotel in the same area as the Circle K and other businesses mentioned. The misspelling of Marvell’s given name as Marvel is common in the police and court documents.

Marvell Locke’s record.

.Police allege in sworn court affidavits and an arrest citation that Marvell Locke had AoAs at Kroger Gas, 9027 US 64, Kroger store at 9025 US 64 and Pizza Hut 8979 US 64. The only AoA on file is for the Best Western Hotel at 8635 US 64. Incidentally, the Pizza Hut is in the same block as the Circle K.

It is easy for police to commit this type of AoA fraud. When the DA’s office sends supporting documents to a Public Defender, they are reduced in size and presented four to a page. With the handwritten scrawl that AoAs are rendered with, it is impossible to make out the detail on an AoA. We have other examples of police substituting AoAs for defendants.

This can be a critical factor in obtaining a trespass conviction and getting longer sentences. For many, an AoA is an entry point to the criminal justice system.

Why did cops target Locke?

While being arrested on 11/14/2019 police allege in yet another affidavit of complaint that Marvell Lock, from the back of Adam Durham’s cruiser, spat in the cop’s eye. Police have a HIV protocol when that happens.

This article, from Law Enforcement Today gives the police viewpoint. They list dozens of Marvell Locke’s infractions and seem to imply that Mr Locke is a career criminal and a fair target for summary execution. It is clear that the police had spoken with local business owners about Mr Locke, including a visit to the Circle K a few days previously. It is easy to think that Nicholas Vitatoe had imagined that the police would not care if he slaughtered Marvell Locke. The police undercharge and his release with no bond did show extreme leniency by the police, and if George Floyd had not been murdered that summer, Mr Vitatoe might be a free man today.

MPD AoA regulations/UPSSOP

We obtained MPD’s Uniform Patrol Station Standard Operating Procedure via FOIA and analyzed those regulations in our blog.

AoA (the police version, there’s also a separate version of AoA at the DA’s office) purports to authorize police to arrest a specified person for trespass without the due process of the Tennessee trespass law, that requires a defendant to be informed he is trespassing and given an opportunity to depart. As such, it is a fast-track to a trespass conviction. Read more about AoA.

The master database is filed in each precinct in its original handwritten form. The procedure is that the property representative informs the subject that she is barred from the premises and will be arrested for trespass on sight. The complainant and the police go to the station where the cop signs to assert that the subject has been informed and that he is witnessing the complainant’s signature.

We audited over 2300 AoA forms and found that 93% of them were invalid because this procedure and other UPSSOP requirements were not followed.

AoA abuses

  • We have seen where MPD substituted the single Best Western AoA against Marvell Locke in three other cases. We have seen other cases like this.
  • In our recent FOIAs, we found three AoAs on file at Appling station, the precinct covering Marvell Locke’s various police dramas. These AoAs were signed by police and the defendant was left blank. Presumably these were intended to be distributed to business owners, who could sign over the existing police witness’ signature. This would be a clear case of fraud. Incidentally, we have a proven case where this writer’s name was added to an AoA at the Zoo over a several months old police signature. The lack of a proper system, controls and auditing of the AoA apparatus and its previous secrecy makes it prime for abuse.
  • We have an eyewitness account from an employee at the now-closed Cordova Animal Clinic, formerly at Fischer Steele Rd in the Appling precinct. When the owner complained to the police about a person of concern (not Marvell Locke), a police came, signed an AoA form and told the veterinarian to hang it in the office. This was not a valid AoA because the offender was not notified, the vet did not come to the station, and our database shows that no AoA was filed for the clinic. It is possible that this deficient procedure was used for the missing Marvell Locke AoAs.

Marvell Locke police victim.

Marvell was a poor Black man who was, according to his attorney Howard Manis and his relatives, mentally ill. He had certainly been a problem for local police and business owners, and is easily cast in the role of usual suspect.
Above all, he was the victim of evidence tampering by the police, in his previous prosecutions. He did time as a result of several November 2019 prosecutions. He was often a rambunctious presence in many local businesses.

Above all, the tragic case of Marvell Locke shows that the police are not equipped to deal with severely mentally ill people.

MPD’s Uniform Patrol Station SOP

Recently we got documents from Memphis Police Department using “Authorization of Agency” as a search key, and we obtained an excerpt of MPD’s “Uniform Patrol Station Standard Operating Procedure”.    The extract was very helpful as it outlined the procedures for Authorization of Agency, which we wrote up in our blog.

Continue reading “MPD’s Uniform Patrol Station SOP”

MPD Authorization of Agency Regulations

Authorization of Agency (AoA) is a pair of processes at Memphis Police Department and the DA’s office, which are designed to circumvent provisions in the Tennessee criminal trespass law, TCA § 39-14-405.  AoA is designed to enhance public safety by controlling unwanted citizens who access private business property.

a_list
An Authorization of Agency form MPD AA 0306, part of the City Blacklist as received by the Media via FOIA.

We have written extensively about one AoA process, the MPD’s form AA 0306, which is summarized in the most recent blog.   We provide links to our blogs and other documents at the end of this piece.  We have not previously written about the second process, which is based on signage located mostly in apartment complexes, but we describe the second process here.

We recently discovered, via Open Records Request, the regulatory device used by MPD for AoA.   It is section 52 of the Uniform Patrol Station Standard Operating Procedure, page 35.  

Uniform Patrol Station SOP AoA Regulations

We provide the text of the FOIA we received from MPD below, with section headers inserted by us.  It is the Uniform Patrol Station Standard Operating Procedure.

AoA UPSSOP Section 1: Definition of AoA

SOP_1

AoA UPSSOP Section 2: Advising the Target of AoA

SOP_2

POPO_GRAPHIC
Graphic: Pixabay.com

AoA UPSSOP Section 3: LEO Witness and Complainant signature

SOP_3

AoA UPSSOP Section 4:  Filing of AoA

sop_4.png

AoA UPSSOP Section 5: AoA Verification for Arrest

 

SOP_5

TakeEmDown901-Protest-Toned-0011

AoA UPSSOP Section 6: Arrests and File maintenance

SOP_6

AoA UPSSOP Section 7: Appendices, omitted from FOIA.

SOP_7

About the AoA SOP.

We see numerous problems with the current implementation of AoA.  As examples, section 1 confines AoA complainants to businesses only, and there were 112 AoAs (6.6%) for residence owners who were private individuals in our 2018 FOIA.

In section 2, the business owner must advise the AoA target, in the presence of an MPD witness, of the imposition of AoA.   There is one alternative procedure provided involving the posting of a notarized affidavit.   We received notification, in response to a FOIA request, that there are no such affidavits on file at MPD.

In Section 3, the business owner and the witnessing officer must sign and complete the AoA form at the local police station.  The combination of sections 2 and 3 require one three-way meeting which must include the AoA target, which can be anywhere but is assumed to be at the alleged trespass location, and a second meeting and filing which must include the complainant and the original witnessing police officer, and must take place at the local MPD precinct.

We have an email from MPD Colonel Worthy, commander of Ridgeway precinct, emphasizing this inflexible procedure.

“Sir, you will have to give the a verbal order to the individual to not be on the property in the presence of an officer. Then we can fill out the form. You have to have the name of the officer and his IBM number. Then the form is to be completed at the station. If the form is completed before that step it is not valid…”

Of the 45 cases we have sampled, this procedure was not followed in a single instance.   We are following up on interviewing additional AoA targeted individuals.

Section 3 also lists a number of data points which must be on the AoA.   The majority of the 2,200 AoAs we have seen do not have all these data points, or the officers IBM# as required in the Colonel’s email.

The SOP contains numerous other requirements which are not followed, among them the requirement for annual purging of year-old AoAs.   When we obtained 1677 AoAs via FOIA in mid-2018 with readable dates, 358 of them (6.6%) were dated 2016 or earlier and must have been more than a year old, and the 584 FOIAs for 2017 looked like the entire year’s worth of FOIAs.

We also have an email interchange between an attorney for an AoA targetted individual, from February 2017, who had to escalate to Bruce McMullen, City Attorney and City PR Ursula Madden in order to get an erroneous AoA removed.   The procedure in the UPSSOP for correcting erroneous AoAs was apparently not applied or did not work, possibly because no-one was aware the procedure existed.  This AoA target had to pay an attorney for redress, something not available to everyone.

In summary, it looks like the majority of AoAs on file are invalid because of defective procedures, and we would not be surprised if every AoA on file is defective in some way.

The other type of Authorization of Agency

Anti-Trespass-photo
Authorization of Agency No-Trespass Notice.  Photo Shelby Co. DA.

The MPD AoA form AA0306 is clearly labeled Authorization of Agency and this matches the verbiage in the UPSSOP.   The DA’s office frequently refers to another AoA mechanism.   This is manifested in the form of signs frequently posted in apartment complexes, which state that the property is posted against trespass by anyone who is not a tenant or their guest. Here’s a Youtube video of Amy Weirich (2:46 minutes) describing these signs as AoA and conflating with the AA0306 forms.

These signs purport to allow the police to arrest an alleged offender without the notice required in the Tennessee criminal trespass law, TCA § 39-14-405.

In order for a premises to be posted under TCA § 39-14-405, the property must be entered in the No Trespass Public Notice List at the Tennessee Secretary of State.  We have viewed this page repeatedly between 2017 and the date of writing, 12/1/2019, and have never seen a Memphis address posted in this database.  Therefore we assume that all these AoA no trespass signs contravene the State trespass law and are invalid.

We have not yet received data on the use of both flavors of AoA in actual trespass arrests, but we are told, anecdotally, that hundreds of such arrests have been seen, and will post that information when we receive it.

Why was AoA under the radar for ten years?

watchmen_still
Secret police processes, The Watchmen.  Photo: Tvseriesfinale.com

We could find no public mention of AoA between 2007, when a blogger mentioned it, to 2017 when our FOIA produced the City blacklist, including 43 people on AoAs.   We believe, anecdotally, that hundreds of trespass arrests were made, using both forms of AoA.

Only a small population knew about AoA, the AoA complainants, people to whom AoA had been marketed as possible complainants, some of the AoA targets, some MPD police, of which less than 10% actually created AoA forms, prosecutors and public defenders.

When you have secret police processes, you get secret police.

Public Defenders and AoA.

There are about 45 politically targeted individuals, who generally had private attorneys when they interacted with the criminal justice system.

All other instances of arrest for trespass with either flavor of AoA that we know of went through the Public Defender’s office.    Sadly, the combined actions of the DA’s office and MPD have severely hampered the PD’s ability to defend AoA arrests.

PD’s workflow for AoA arrests.

Bear with us as we outline the PD’s workflow.   When a person is arrested for criminal trespass, they are brought to 201 Poplar or Jail East and booked.   Some time afterwards, during bankers’ hours, the defendant will be arraigned.  At that time, if the defendant does not have funds for a lawyer, a public defender is appointed.   The PD receives the jacket, containing various documents, including an affidavit of complaint and an arrest ticket from MPD, a bond recommendation, criminal history and others.

At this point, the PD may see a small photograph of the AoA document on the affidavit of complaint, which is reproduced at quarter size and can’t be read.   So the PD knows there’s an AoA or a posted location but can’t see details.  In order to get the AoA form, the PD would have to walk the couple of blocks to MPD HQ at 170 N. Main, go through security and wait at the public records counter on the 7th floor.   PDs, who often have up to thirty cases per day, are limited to three police records per day.  Restrictions on the data practically available to PDs has been progressively tightened over the years, not least when the MPD records counter moved from 201 Poplar to North Main.

If the PD is to take 45 minutes from their busy schedule, they’ll probably wait until the end of the day and do all the day’s AoAs together.   There is not enough time in the day to get MPD records for every case.   In most cases, as the defendant probably needs to be released to get to work, cases are settled for time served awaiting trial before the end of the day.   First time defendants often accept a misdemeanor record to get back to their daily schedule.   This is a problem if they get arrested again, as the trespass offense is taken into account when bail, diversion and sentence recommendations are decided.   This is a slippery slope into a possible criminal career.  AoA is a gateway into mass incarceration for many.

Hopefully PDs can use some of the information here to question the imposition of AoA in more cases.   In the meantime, considering the workload on PDs, it is not surprising that they did not investigate and publicize the nature of AoA while it was under the radar.

Our current interest in AoA stemmed from its use in the City blacklist and the information we developed required hundreds of hours of research.   Without the publicity generated by the Blacklist and the ensuing ACLU court case, the public might still be in the dark about AoA.

Summary

AoA has been an almost secret police process at MPD and the DA’s office since at least 2007.   It has the appearance of having been heavily marketed by various public safety interests in the interim, resulting in heavy usage.

The availability of this secret tool was apparently attractive to the City, MPD and the Zoo when they desired to punish and harass political activists, after which law enforcement lost the advantage of this secret police process.

We believe that the 2,200 AoA targets include about 45 political actors and over 2,100 regular folks, who generally have been unable to mount a criminal defense against the numerous irregularities we outline here.

We are appending a links section as a resource.   Anybody who is on an AoA, who has been notified they are not allowed at a certain location, or who has been arrested for criminal trespass where “authorization of agency”, AoA, no trespass signage, or “being on a list” should contact us.    We will share your information with some attorneys we are working with, but with otherwise keep your information completely confidential and protected.   You can also use our confidential contact option if you have AoA information but wish to be anonymous.

AoA Resource Links

All the information here is publicly available.

On our FTP server.

http://www.fnolan.com/A/A-List.pdf:  A-list containing FOIA with, 43 political AoAs.

http://www.fnolan.com/AOA/files/AoA_analysis_spreadsheet_links_20180911_v02.xlsx:  Indexed spreadsheet with about 1700 AoAs.

http://www.fnolan.com/AOA/ Directory listing for the raw files in the above spreadsheet.

http://www.fnolan.com/AO2/Publ_AoAs_20191010.xlsx:  Indexed spreadsheet with 473 additional AoAs received in 2019

http://www.fnolan.com/AO2/ Directory listing for the raw files in the above spreadsheet.

Lagniappe

Finally, Shelby Co. Sheriff’s Office has announced it will shortly be starting its own AoA process.

Blogs.

Some of the information in the earlier blogs is inaccurate and was corrected in later blogs.  E.g. I wrote that there was no MPD P&P for AoA in 2018, now we know from the current article that it is covered in UPSSOP.

https://memphistruth.org/2019/10/11/authorization-of-agency-update/ Blog about the recent 473 AoAs obtained in 2019.

https://memphistruth.org/2018/09/06/authorization-of-agency-mpd-invention/ Blog with the 1690+ AoAs obtained in the 2018 FOIA.

https://memphistruth.org/2018/09/11/authorization-of-agency-initial-analysis/ Additional analysis of the 2018 FOIA.

https://memphistruth.org/2018/02/26/blacklists-from-a-to-z-new-zoo-z-list/  Hunter Demster and Fergus Nolan receive an AoA at the Zoo.

https://memphistruth.org/2019/07/30/dan-rosson-placed-on-aoa-by-city/  Dan Rosson, animal rights activist, placed on AoA at Memphis Animal Shelter.

https://memphistruth.org/2019/07/26/rodney-fisher-fired-by-mpd-via-aoa/ Rodney Fisher takes video of ab MPD cop informing him he is on an AoA at his job at NIKE.

https://www.facebook.com/100005058287008/videos/1256158231229441/  Rodney’s video.

https://memphistruth.org/2017/02/08/mpd-has-activist-list/  A-list breaking news with 43 political AoAs.

http://www.paulryburn.com/blog/2007/07/18/authorization-of-agency/  2007 first public AoA mention by blogger Paul Ryburn in 2007.

Other

Various public sites and reference material

TCA 39-14-405:  Tennessee Criminal Trespass Law

No Trespass Public Notice List at Tennessee Secretary of State

MPD Policy and Procedures Manual

DA’s Anti-Trespassing Program

Safeways Apartment AoA scheme.

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— concluded —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MPD ignores Monitor, abuses woman

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Maureen Spain

Maureen Spain is a busy soccer mom and a nurse who finds time to engage in local issues.   We encountered Ms Spain several times before.   She was arrested at the Greensward on Memorial Day 2016, by Richard Rouse who was looking for brownie points for promotion to sergeant.   The day following her arrest, she was placed on an Authorization of Agency by the vengeful Zoo, even though she had not set foot on Zoo property that day. She took the case of her arrest to CLERB.

Ms Spain was recently detained, cuffed, physically abused and transported by cops who told her, during the abuse session, that they “love the Zoo”.    We have full details of this incident, but first some background.

Maureen_AoAWe previously documented the City’s use of AoA as a tool for political harassment.  Among the over 2100 MPD victims of this irregular procedure, we highlighted five AoAs which were clearly part of ongoing political harassment at MPD, continued brazenly even while the Court Monitor is examining such issues.   The most recent political AoA was Rodney Fisher’s from July 25th 2019, well after Monitor’s appointment.

* Author’s note:  I was arrested with Ms. Spain and am also named on the same AoAs as she.

Authorization of Agency as political harassment

Ms. Spain has the distinction of being on the first political AoA that we know about.  She was also on the AoA for the December 19th 2016 die-in protest at the Mayor’s house, which resulted in the City Blacklist.   More than forty people were on this AoA, even though it was well known that no more than a dozen people participated in the Die-In.   The majority of those blacklisted were there as political opponents of Mayor Strickland’s regime.    The abuse of AoAs continued with another Zoo AoA, Dan Rosson’s at Memphis Animal Shelter and the aforementioned Rodney Fisher AoA with video.

We have documented AoA as a means of harassing those suffering lack of housing and other disenfranchised citizens.   AoA remained unreported for at least ten years before its 2017 exposure with the City Blacklist.   AoA as a secret police weapon seemed ideal when the City was mulling retaliation against the Greensward prisoners, so it is not surprising that MPD would add it to its arsenal of unconstitutional attack tools.

AoA is not the only harassment method used by MPD.  Hunter Demster, Antonio Blair,  Keedran Franklin and many others have been surveilled or arrested in recent years.   Ms Spain herself, with numerous other activists, was featured in Joint Intelligence Bulletins as documented in the Kendrick trial documents.

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Joint Intelligence Bulletin from Kendrick trial documents.  The “reliable source” was Bob Smith

Ms Spain, whose most recent political involvement was “just a day in the park”, was dialed in to Detective Tim Reynold’s paranoid conspiracy theory centered on Saul Alinsky’s book.   This is part of a pattern of harassment which continued from May 2016 to August 2019,  even while the Court Monitor was watching.

 

August 30th 2019 at Paradiso Cinema

On August 30th, Maureen Spain organized a birthday outing for her son and some of his early teen friends.   She had a slight buzz on from a two glasses of wine earlier that day, and used a rideshare instead of driving to the Paradiso.   At the theater, after a discussion with staff over their policy of not allowing children access to the movie, security guard Ray Daughtry dialed 911 and at least seven MPD officers responded:  David Osborne, Martin Nolan, Lenette Otis, James Dolan, Chase Bates, Breana Johnson and Ryan Walker.   Osborne and Nolan identified themselves to Ms Spain and the others are listed in the 911 Call Log (PDF) of the event.   Audio of the 911 call is here. (WAV file).

According to the 911 log Ms Spain was detained at 8:28 PM, placed in custody at 8:51 PM, and she was transported at 9:25.   As Ms Spain was never arrested, she was detained, cuffed and locked in the back of a cruiser at the Paradiso for a total of 57 minutes, and a further thirteen minutes while being transported.  Normal police procedures require that detention at a location should be resolved within “about” 20 minutes, by release, transportation for further detention or arrest.

Ms Spain wrote a first-person account (PDF) of the incident.

Cuffed in the Cruiser.

Ms Spain was jumped by Malco Paradiso security guard Ray Daughtry, who detained her and handcuffed one wrist.  Officers Nolan and Osborne made the scene, placed handcuffs on Ms. Spain very tightly behind her back and sat her in the back of their cruiser.   MPD’s Peerless-brand police handcuffs have a pawl and ratchet mechanism which allows the cuffs to get tighter with movement, but never looser.   Being forced to sit on a pair of cuffs in an enclosed space in the back of a car is very uncomfortable, and every movement makes the cuffs tighter.   If the police are being nice, they can insert a key and lock the ratchet so that the cuffs stay in place and don’t get tighter.    These cops were not being nice that evening.

The two detaining officers videoed Ms Spain’s writhing in agony and made video of her through the opening in the partition.    At one point, one of the officers said that he “loved the zoo”, tying the incident to the MPD harassment of Ms Spain, which had been ongoing  for more than three years.   At another point, one of the officers offered to loosen her cuffs, but took them off and replaced them even tighter, savagely twisting them and her wrists.

During the 57 minutes of Ms. Spain’s torture, her son and his friends waited on the curb until one of the other parents came to pick them up, so the kids were forced to see their mother’s mistreatment.

Ms Spain Transported.

Maureen Spain was transported at 9:29 and arrived at the MMHI Crisis Center at 9.42.  The transporting officers were given as Lenette Otis, Chase Bates and James Dolan.  She was finally uncuffed at 9:52 and released from the Crisis Center after a couple of hours.    Although the 911 log ends with an indicated arrest, she was never charged in relation to the incident and no court records were filed.

As Ms Spain had previously been targeted as a political figure, the investigation was one likely to result in political intelligence being revealed, but we do not believe that the detaining officers had permission from the Police Director to conduct this investigation.

Maureen Spain’s injuries.

The above photos show bruising on Maureen Spain’s shoulder area and fingerprint bruises on her upper right arm, and her wrist swollen, welted, bruised and abraded by the handcuffs.  Photos taken Sept 1st 2019.

20190904_105054She also had a very large bruise on her upper arm, which came up later, this photo taken on Sept 4th.

Ms. Spain also suffered nerve damage to her hands and wrists.

 

 

 

 

 

 

 

 

 

–concluded–

 

 

 

 

 

Jason White framed in Bartlett Meth Case

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Jason White

Jason White was sentenced to 21 years in 1999 for a burglary when he was 18 years old, and, in 2017, was serving the last year of his sentence.

Jason Lamar White was indicted in April, 2016, by the Shelby County grand jury for conspiracy to distribute methamphetamine along with his girlfriend, Kristina Cole.   Another Riverbend inmate, Montez Mullins, was added to the indictment a year later.

The case was discussed by The Post and Email, on 10/11/2017, 10/17/2017 and 11/16/2017. These posts include case documentation, an interview with Jason’s mother, Kimberly White and extensive phone follow-up by the Post and Email’s Sharon Rondeau.

Montez Mullins.

In Februry 2016, Montez Mullins admitted to Cole’s first attorney, Mark McDaniel, that he had arranged for the shipment of the contraband package.

Fox 13 News reported: “According to the DA’s Office, Mullins said Cole and White knew nothing about the drug delivery. He claimed a Hispanic man he met in prison gave him an address as a good place to deliver drugs in the Memphis area.

Mullins also said he told Cole that the FedEx package contained jewelry intended for his mother, according to investigators”.

Kristina Cole

Kristina Cole is a mother of three who was 43 at the time of her arrest in February 2016.   Her previous record was pristine.    She is Jason White’s girlfriend.

The Package.

fedex_label004.jpgThe package in this case contained about a pound of crystal methamphetamine and some baby clothes.  It was presented to FedEx as shipment number 808857073374 at a FedEx retail outlet in Visalia, California.  FedEx opened the package and called Detective Collins, who took custody of the package.

The original FedEx label was given in evidence, and  the address, on the  label is  2552 Linwood Road, Bartlett, TN 38134.  It is marked for “Standard Overnight” service, which is FedEx’s next afternoon service.    The label is in the customary format produced by FedEx’s shipping software.

Package was Intercepted.

Detective Collins picked up the package, contacted the Bartlett police, overpacked it in a UPS box and sent it to Bartlett Police Department.    There, Detective Mark Gaia obtained a search warrant for a different address than was on the original FedEx label.   He used 2552 Jenwood Street, Kristina Cole’s address.

Bartlett detectives then relabeled the package with Cole’s address.

This is confirmed in White’s appeal.

Defects in the Package Chain of Custody

Detective Collins did not testify and so could not be questioned on the origination of the package.

Delivery of the Package.

The package was left on Cole’s porch and the search warrant served after Cole took it in.   The package was found unopened inside the front door and a number of electronic items confiscated in the search, including Kristina Cole’s phones and laptop.

The planted text messages.

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Kristina Cole

The prosecution later asserted that Kristina Cole sent Jason White a text message confirming the arrival of the shipment.   The text messages on her phone were created during the time she was in custody at the Bartlett police station.

From the Post and Email documents, the record of arrest on page 8 shows an arrest time of 3:30 PM.   On page 11, the phone text log shows the “incriminating” text messages going out between 3:38 PM and 4:26 PM.   By that time Kristin Cole and her phones were in custody.

Detective Gaia admitted on the stand, under cross examination by Cole’s attorney, Kortney Simmons, at trial, that he had sent at least some of those text messages.

In addition, the destination of the text messages, (615) 917-3749 was never proven to be a contraband cell phone in the possession of Jason White.   Currently (on 4/15/2019) the number gives an “unavailable” signal.  “A TDOC officer claimed that he saw (Jason) flush a phone in prison, but he showed no evidence during the trial to connect Jason White to the number”.  This is confirmed in White’s appeal.

The TDOC officer in question was later fired for bringing contraband phones into the prison.

Chris Scruggs

Chris Scruggs, the prosecutor, lied during the trial, alleging that he had not heard of Montez Mullins’ involvement in the case until “this year” (2017), even though Cole’s then attorney, Mark McDaniels,  who had talked to Chris Scruggs and told him about Montez Mullins at the discovery point after she was arrested in February 2016.

Scruggs is one of the problem ADAs we have encountered.    He is one of the defendants in April Malone and Celitria Watson’s federal suit alleging that Scruggs participated in the alteration of wiretap evidence and in hiding exculpatory evidence from the defense.   He also recused himself from Thorne Peters’ case after fictional evidence of weed found in the cruiser which transported was added to the case documents more than four months after the arrest.

Scruggs is second only to Amy Weirich herself on MemphisTruth.org’s list of problem prosecutors.

Judge Robert Carter presided over the trial.

Defense Counsel issues.

The defendants had issues with their counsel.
Attorney Claiborne Ferguson, White’s attorney complained that Jason White assaulted him at 201 Poplar on 7/10/2017.   The incident report is in the Post and Email documents, on pages 2 through 14.   The reporting officer said that no-one saw White choking Ferguson, as he had alleged, his clothing was undisturbed and there were not marks of violence.   Deputies concluded that no assault had taken place.    White had just informed Ferguson that he was firing him as attorney.   This is confirmed in White’s appeal.

White attempted to have Ferguson removed as counsel, and act pro-se but the judge would not allow it.   The constitutional right of a defendant to defend himself was violated.  White eventually fired Ferguson at sentencing time.    White’s previous attorneys were Blake Ballon, and Jeff Mueller.

Kristina Cole hired first Mark McDaniel and then Michael Scholls, fired them both and reported them to the Board of Professional Responsibility.    She went to court with Kortney Simmons, hired from Jackson because she could not find a local attorney to take the case.

Other Prosecutorial Midconduct

Prosecutors are not allowed to make derogatory remarks or epithets about defendants at trial.   During Cole’s trial, Chris Scruggs said that Kristina looked like “a pig for the Junk Yard Dog”.    This was a reference to the prison gang, the Junk Yard Dogs, of which Jason White was a leading member in Riverbend prison.

The prison gang was led by Charles Thompson who appeared in our Jobs for Cash story.

Scruggs also referred to Kristina and White as “Bonnie and Clyde” during the trial.

The Verdicts

Kristina Cole was found guilty and given 13 ½ years.

Jason White was found guilty and given a 60 year additional sentence.    He will be over 90 if he is released.

Montez Mullins was found guilty and given 40 years.

Post Conviction

Jason White’s appeal was turned down in February 2019.
Kristina Cole and Montez Mullins’ appeal was turned down in November 2018.

— concluded —