Today's Misconduct Finding Is Just The Latest In A Decade Of Misconduct By Prosecutor Amy Weirich And Her Office
Citing prosecutors’ failure to disclose evidence, a Tennessee judge has ordered a new trial for Pamela Moses, a Black woman sentenced to six years in prison for registering to vote.
The finding continues a long pattern of misconduct by Shelby County District Attorney Amy Weirich and her staff, including other instances of failing to disclose evidence to defense attorneys and making improper comments to the jury during high stakes trials, including death penalty cases. The Tennessee Supreme Court has reversed multiple convictions based on Weirich’s inappropriate behavior, and the Tennessee Board of Professional Responsibility has reprimanded her.
Failure To Disclose Brady Material Before Moses’s Trial
Moses’s case made national headlines and sparked outrage across the country; Moses has said that she did not know that she was ineligible to vote because of a previous felony conviction, and multiple government agencies admitted to mistakes that confused Moses about her status.
Weirich, the elected prosecutor in Memphis since 2011, has staunchly defended and even bragged about Moses’s conviction. Weirich in fact blamed the severity of the charges on Moses’s decision to exercise her right to a jury trial. In refusing to plead guilty and demanding a trial–a right enshrined in the Sixth Amendment–Moses “set this unfortunate result in motion,” Weirich said.
But on February 25 a judge granted Moses’s Motion for a New Trial – and ordered her release – in part because Weirich and her prosecutors failed to disclose an email showing the probation department’s errors in evaluating Moses’s probation and voting status. In the email, a state corrections official explains that a probation officer mistakenly signed a certificate telling Moses that her probation was complete and she was eligible to vote. According to the email, there was no finding that Moses had tried to deceive the officer. Instead, the probation officer had been negligent in assessing her status. He “failed to adequately investigate the status of the case” and “review all of the official documents,” the email reads.
Under the rule established in Brady v. Maryland, prosecutors have an affirmative obligation to identify and disclose evidence that might help the defense. The rule is a bulwark against wrongful convictions and protects due process in criminal trials. Violations have sent innocent people to prison for decades and even death row. Weirich and her team’s failure to comply with it here, the judge found, warrants a new trial.
In this case, the judge did not find that Weirich’s office intentionally withheld the Brady material (though it is worth noting that, when confronted with the existence of this email after Moses’s conviction, Weirich doubled-down on her defense of Moses’s conviction and prison sentence), but this is hardly Weirich’s first brush with misconduct. Instead, her entire career–both as elected DA and line prosecutor–has been marked by it.
A Long and Documented Record of Prosecutorial Misconduct
The Most Misconduct in Tennessee. A Harvard Law School study that examined the first five years of Weirich’s tenure from 2011 to 2015 uncovered more than a dozen examples of misconduct in her office. Weirich’s office led the state in both findings of misconduct and the number of cases reversed due to misconduct. Even adjusted for population, only 6% of Tennessee’s 95 counties had more reversed convictions based on prosecutorial misconduct than the office Weirich leads.
Fueling A Misconduct Ridden Culture. Tom Henderson, a top prosecutor in Weirich’s office made “blatantly false, inappropriate and ethically questionable” statements about the existence of evidence that could have helped exonerate a man who Henderson put on death row. According to the appellate court, Henderson “purposefully misled counsel with regard to the evidence.” Henderson was censured by the Tennessee Board of Professional Responsibility in 2013 for misleading defense lawyers in the case. But Weirich defended him, claiming that the nondisclosure was inadvertent, and refused to demote him. Weirich’s support came despite the fact that Henderson had similarly failed to disclose exculpatory evidence in multiple other cases, including a 2006 death penalty case that ended in a mistrial after a judge determined that Henderson failed to turn evidence.
Breaking The Rules To Convict A Teenager of Killing Her Mother. In 2014, The Tennessee Supreme Court overturned a murder conviction in the case of a then 18 year old named Noura Jackson, who was accused of killing her mother, finding that Weirich made forbidden inflammatory remarks intended to improperly sway the jury toward a conviction. The Court wrote that the law is so well settled on this issue that “it is not at all clear why any prosecutor would venture into this forbidden territory.” In the same case, she illegally withheld evidence from the defense that tended to undermine the testimony of the prosecution’s star witness against Jackson despite multiple requests from the defense for the evidence.
Repeat offender. The Tennessee Supreme Court had previously characterized Weirich’s inflammatory comments as “improper” and “unseemly” where she nicknamed two people accused of murder as “Greed and Evil,” using that phrasing twenty-one seperate times during opening and closing statements in a capital murder trial. After the court ordered a new trial, the Tennessee Supreme Court concluded that Weirich again committed misconduct in the retrial.
Cheating or incompetent? That’s the question the United States Court of Appeals for the Sixth Circuit suggested was at issue in a case where Weirich successfully secured a death sentence. At trial, Weirich asked a key witness for the prosecution whether she had “collected one red cent” for her testimony on behalf of the state. The woman said no. It was a lie. She had received a $750 payment from law enforcement. Weirich had a duty to know about and disclose the existence of this payment which she failed to discharge. The federal appellate court reversed the man’s conviction, and then went out of its way to indict Weirich’s behavior, saying that “any competent prosecutor” would have known about the payment. Then, to make the point more clear, the court repeated the same sentiment later in its opinion: “Were we to presume that the State’s prosecutor engaged in diligent preparation for trial, we would conclude that she knew of the payment at trial.”
“Do not show defense.” Back when Weirich was a staff prosecutor in the office that she now runs, she secured a conviction of a man in the murder of his wife. Years later, as prosecutors and defense lawyers prepared for appellate hearings in the case, the lawyers found a sealed manila envelope with a sticky note that said, “Do not show defense.” The initials on the note--“A.P.W.” are Weirichs. When these lawyers first raised the existence of the note with a judge, the transcript captured the court’s response: “Oh, my gosh.” The envelope later went missing, so it’s contents remain unknown.
“Inexplicable and Improper.” An expert witness, who works with the Memphis Police Department and frequently testifies on behalf of the prosecution in criminal cases, was set to testify in a murder trial on behalf of a person who was accused of murder. The upshot of the planned testimony was that it was likely that a different person committed the murder. However, Weirich called the Memphis Police chief, who then called the expert, to arrange for that person to no longer testify at trial. A court called Weirich’s interference in the case “inexplicable and improper.”
Formally reprimanded. Disciplinary Counsel for the Tennessee Board of Professional Responsibility filed a Petition For Discipline, stating that Weirich “failed to conduct herself in conformity” with the rules of professional conduct and urged the full Board to publicly censure Weirich based on her misconduct. Disciplinary Counsel then had to file a supplemental petition based on additional inappropriate behavior. Ultimately, the Board of Professional Responsibility issued a private reprimand.