As the execution date nears for a man who would become the first African American in more than four decades put to death here, the prosecutor who tried that case is under fire for what some say is a troubling history of legal misconduct. In fact, assistant district attorney John Zimmerman’s controversial career may well be the last hope for death row inmate Abu-Ali Abdur’Rahman.
Perhaps the low point of that career happened last March when the Tennessee Court of Criminal Appeals threw out a life sentence for another man, Claude F. Garrett, after ruling that Zimmerman clearly withheld important evidence casting doubt on the defendant’s role in killing his girlfriend in a 1992 house fire. In addition to ordering a new trial, the court also delivered a strongly worded reprimand, saying that it was “extremely troubled” by Zimmerman’s actions.
A former military lawyer, Zimmerman told the jury that Garrett locked his girlfriend in a utility room before setting the house ablaze. But the Court of Criminal Appeals later ruled that Zimmerman failed to turn over a police report containing crucial information: The door to the utility room wasn’t locked. Prosecutors have a legal and ethical obligation to turn over exculpatory evidence (that which is potentially favorable to the defense) to a defendant’s lawyers.
That police reporton top of eyewitness testimony that the defendant broke windows in the burning house to try to rescue his girlfriendmight have cleared Garrett. As it is, the former construction worker has spent the last nine years in state prisons. His new trial begins May 6.
In a post-conviction hearing for Garrett, Zimmerman testified that he withheld the police report because he didn’t think it was accurate. The Court of Criminal Appeals later rebuked the veteran prosecutor: “This Court is extremely troubled with General Zimmerman’s decision to himself determine the reliability of the evidence and to refuse to turn over evidence that is exculpatory.” From the plush floors of the city’s tony firms to the more modest digs of the public defender’s and district attorney’s offices, that opinion on the prosecutor’s behavior is still the subject of many water cooler conversations.
Zimmerman, who launched his career in the Davidson County District Attorney’s office in 1982, didn’t return a voice mail message asking him about that case and others in which he has drawn official criticism.
Zimmerman’s boss, District Attorney Torry Johnson, says that he agreed with the Court of Criminal Appeals decision. “Whether the report is accurate or inaccurate, it should have been provided to the defense, and in my conversations with John, he also agrees that his decision in this matter was mistaken.”
Johnson adds, however, that while he hasn’t always agreed with Zimmerman, he has never questioned his integrity. “John is an aggressive and extraordinarily capable prosecutor,” he says.
Dwight Scott, Garrett’s post-conviction attorney, had little to say on Zimmerman’s conduct. “The opinion of the Court of Criminal Appeals speaks for itself,” he says.
Garrett’s trial attorney, Greg Galloway, says simply, “Zimmerman misled me, and I didn’t think that was very ethical.”
In the months ahead, Zimmerman’s record may well face unprecedented scrutiny, as the Tennessee State Supreme Court looks to set an execution date for death row inmate Abu-Ali Abdur’Rahman. If executed, Abu-Ali would be the first African American tried and put to death in Davidson County since 1957. It would draw statewide media coverage, while again renewing the death penalty debate. It would also put Zimmerman, who prosecuted the case, in the spotlight.
In 1987, a Davidson County jury convicted Abu-Ali of the stabbing death of a local drug dealer, even though there was no forensic evidence linking him to the murder and despite the fact that the only eyewitness was an accomplice who might have done the deed himself. Now, with time winding down for Abu-Ali, his attorneys, Bill Redick and Brad MacLean, are furiously filing motions in various state and federal courts, claiming that Zimmerman is guilty of the same sort of legal misconduct that landed him in trouble in the Garrett case. In fact, in a memo to U.S. District Court Judge Todd Campbell, they write that Zimmerman is a “prosecutor with a long history of engaging in various forms of misconduct and deceptive practices.”
In various court pleadings, the two attorneys have accused the prosecutor of transgressions that include pretrial misrepresentations, withholding evidence, altering testimony and offering inadmissible information to the jury. They say Zimmerman portrayed their client as a sane but cold-blooded killer, all the while knowing that the defendant had a well-documented history of mental illness and might have killed the victim in a misguided attempt to stop him from selling drugs to children. Those are mitigating circumstances that would not have exonerated Abu-Ali, but would likely have spared him a death sentence.
In an interview in December, Zimmerman brushed off most of those allegations, saying some of them were dismissed in federal court. (Actually, the court ruled that Zimmerman did behave inappropriately, as the attorney claimed, but that his actions did not affect the outcome of the trial.) A state or federal court may deliberate on the rest of the defense’s charges.
Meanwhile, various legal bodies have already opined on Zimmerman’s behavior. In addition to the reprimand in the Garrett case, Zimmerman drew official criticism during the much-publicized prosecution of accused drug dealer Frank Vukelich for money laundering. In that case, Zimmerman was forced to return to Vukelich a mutual fund holding worth $102,000 that had been established decades before the defendant allegedly launched his marijuana outfit. Judge Hamilton Gayden, who had signed the original seizure order, was quoted as saying that Zimmerman misled him into thinking that the money came from the sale of illegal drugs. In that same case, Hal Hardin, the former U.S. attorney during the Carter administration who served as Vukelich’s defense attorney, accused Zimmerman of lying to the court and the grand jury. Shortly thereafter, Zimmerman dropped the case.
Zimmerman has become embroiled in other controversies as well. In 1989, the Board of Professional Responsibilitythe watchdog for attorneys in Tennesseesanctioned him for making inappropriate comments to the media. And in 1999, he was strongly reprimanded for making an improper biblical reference during the closing arguments in a death penalty case.
Naturally, Abu-Ali’s attorneys are hoping that an official courtor perhaps even the court of public opinionwill look at their allegations against Zimmerman in the context of a larger pattern. “The other cases show that he has engaged in the same kind of conduct that he has in our case,” MacLean says.
Zimmerman’s supporters, however, claim that the veteran prosecutor handles so many high-profile cases that he is bound to draw rebuke. “I’ve known John for 20 years, and there have been many cases where he has been on the opposite side, and he has always been straight-up and aboveboard” says David Raybin, a former Zimmerman colleague in the district attorney’s office who is now a defense attorney. “We’ve had some major fights in court, but I’ve never known him to be unfair.”
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