A 2018 issue of the Belmont Criminal Law Journal includes a transcript of a lecture given the year before by former longtime Davidson County District Attorney Torry Johnson. His topic: prosecutorial ethics and wrongful convictions.
After a discussion of the history of wrongly convicted innocents going back to the Salem witch trials, Johnson — who served as Nashville’s top prosecutor for more than 26 years — moves on to talk about the factors that often contribute to such miscarriages of justice. Although he notes that the presence of one or more of these factors does not always result in a wrongful conviction, he says that every wrongful conviction will have one or more of them. The factors he goes on to list are “ineffective assistance of counsel on the defense side, faulty witness identification, perjured testimony often in the form of a jailhouse snitch, false confessions, bad forensic technology or bad forensic testimony, prosecutorial mistakes, and tunnel vision or confirmation bias, particularly as it applies to prosecutors and law enforcement.”
The lecture turns out to be useful in understanding the case of Paul Garrett, a man who pleaded guilty to voluntary manslaughter in 2003 — while Johnson was in office — in connection to the killing of a Nashville sex worker named Velma Tharpe. Garrett went on to serve eight years in prison, on top of the nearly two years he’d already spent in jail before pleading guilty. He’s now been out of prison for a decade. But last month, District Attorney Glenn Funk’s office disavowed his conviction, citing an extensive report by the office’s Conviction Review Unit. Another man, Calvin Atchison, has since been arrested and charged with murdering Tharpe.
The report from CRU director Sunny Eaton lays out the narrative of an apparent wrongful conviction that includes several of the factors Johnson would later highlight in his lecture on the topic. It details false testimony by a police detective, reliance on testimony from jailhouse informants and the questionable handling of two DNA reports — one before Garrett pleaded guilty that excluded him as the source of DNA found on Tharpe’s body, and another that came a year after his conviction and identified Atchison as a match for that DNA. The latter report, according to the CRU, was left in the case file with a sticky note and never followed up on by prosecutors.
The problems outlined by the CRU’s report were largely uncovered by an internal report conducted by Johnson’s office in 2011, after two cold-case detectives reinvestigated the case and came to the conclusion that Garrett was innocent. Then-ADA Kathy Morante told Johnson that the office could not let Garrett’s conviction stand. But with Garrett nearing his release date from prison, Johnson only wrote a letter to the Board of Probation and Parole saying he did not believe Garrett could be exonerated, but that Garrett should be released due to the questions about his guilt.
Ten years later, and after the CRU report put his handling of the case under scrutiny, Johnson still feels pretty much the same. He acknowledges doubts about Garrett’s guilt, but is not at all convinced that he is innocent. Nor does he find the case against Atchison particularly compelling.
In a recent interview with the Scene, the former DA isn’t overly defensive or dismissive, but neither does he seem ready to accept the Garrett case as an example of a glaring injustice during his tenure. He repeatedly invokes the clarity afforded by hindsight, and he’s keen to note apparent failures by Garrett’s defense attorney. He also cites various policies and procedures that have changed in the 20 years since police first brought Garrett in for questioning.
For many observers, a particularly remarkable part of Garrett’s case is the presence of not one but two DNA reports — one excluding him as the source of DNA found on Tharpe’s body, and another identifying Atchison as a match for the same DNA. But Johnson finds those reports less compelling. He says when cold-case detectives came to the leadership of the DA’s office and the police department in 2011 to sound the alarm about the case, he agreed the Garrett case had problems. But he wasn’t convinced that the case against Atchison was any better.
“Understand, DNA on a prostitute is not terribly damning,” Johnson says. “This is a street sex worker. We don’t know where that DNA came from, we don’t know when it came. We don’t know any of that.”
A counterargument is that the DNA was taken from Tharpe’s vagina and her stomach, suggesting perhaps that it was left by the last person who was with her. Johnson acknowledges it as a theory — an argument but nothing more.
Most galling is the fact that the 2004 DNA report from the TBI identifying Atchison went essentially unnoticed, quietly landing in the case file without follow-up from prosecutors. Johnson says that, after learning what had happened in 2011, his office put procedures in place to make sure that new information of such significance would be brought directly to the attention of those who’d worked on the case.
There’s more than the DNA reports in the Garrett case, though. Asked about Roy Dunaway, the lead detective on the case, seemingly lying on the stand about Garrett making incriminating statements, Johnson suggests that might not be as black-and-white as it’s been portrayed. Maybe, he says, the officer was more confused than blatantly dishonest. He says his office and the police department had a discussion in 2011 about Dunaway and his cases but that he doesn’t remember more details.
In his 2017 lecture, Johnson says of jailhouse informants, “If there is a more dangerous group of people, I do not know who they would be.” As for the use of two such informants in the Garrett case, Johnson says his office had a policy of “trying to be very, very careful” about how they were used. But he also says it would be years before prosecutors started compiling databases of jailhouse informants that better enabled them to spot serial snitches who might not be credible. The CRU report in Garrett’s case says that ADA Dan Hamm did not find the informants credible and would not have called them as witnesses if the case had gone to trial. But by then they’d already been used to bolster the case, adding to the pressure on Garrett.
Still, there are more questions. For instance, why — when confronted by two veteran homicide detectives with all the case’s flaws in 2011 — didn’t Johnson do more than ask the parole board to release a man who was about to be released anyway?
“I felt that the quickest, most direct route was to go to the parole board, because they were holding him subject to their authority,” Johnson says. “And [that was the] quickest way to get him out, which I think he deserved to be out, there was no question about that because of the problems.”
Toward the end of the interview, after talking through the many facets of the case, Johnson returns to his fundamental argument that there were indeed problems with the case but that the truth remains unclear. His office didn’t believe Atchison could be charged with the murder in 2011, he says, but maybe Funk’s office will be able to make the case.
“It’s one thing to say they disagree with a decision that was made,” he says. “That comes with the territory, I get that. But to imply that we knew, or covered up or didn’t want known or [wanted] an innocent person to be wrongfully convicted and remain in custody is just, that’s just not true.”