This story is a partnership between the Nashville Banner and the Nashville Scene. The Nashville Banner is a nonprofit, nonpartisan news organization focused on civic news. Visit nashvillebanner.com for more information.
A dispute between Tennessee Attorney General Jonathan Skrmetti and locally elected district attorneys over who controls some post-conviction proceedings in death penalty cases is headed to the Tennessee Supreme Court. The argument stems from a law passed last year and highlights the divide between the AG’s office, which has aggressively defended death sentences and pursued executions, and some more progressive local prosecutors.
Criminal defendants who are convicted and sentenced to death can appeal that outcome in state and federal courts. In those proceedings, the AG’s office represents the state.
People sentenced to death also can ask the original trial court to review their case based on certain grounds, like legal errors in the trial, analysis of new evidence or proof of intellectual disability. Those challenges historically have been handled by the local DA.
But a law passed by the state legislature in April 2023 made it so that the attorney general — who is appointed by the state supreme court — had exclusive control over the state’s side of those proceedings as well.
Numerous death row defendants challenged that law as unconstitutional, including a man named Larry McKay who was sentenced to death in Memphis in 1982. McKay asked a Shelby County trial court to review potential legal errors in his case, and both his attorney and Shelby County District Attorney Steven Mulroy asked the court to disqualify the attorney general from those proceedings. In July 2023, a Shelby County judge agreed with them that the new law stripped authority from locally elected DAs in violation of the Tennessee Constitution. But last week, the Court of Criminal Appeals struck down the lower court’s ruling.
McKay’s attorney, Robert Hutton, confirmed to the Nashville Banner that he will be pursuing an appeal to the Tennessee Supreme Court.
The issue has brought various political and legal tensions to the forefront. Ahead of the appeals court decision, the effort by death row defendants to keep the AG’s office out of these post-conviction proceedings was supported by a large group of prosecutors across the state. Both the Tennessee District Attorneys General Conference — which represents DAs across the state — and a separate group of 64 current and former prosecutors, judges and federal officials filed amicus briefs in support of McKay’s case that the new law is unconstitutional.
“This redistribution of power erodes the authority and discretion of the locally elected prosecutor and thus undermines the choice of the local voters who elect those leaders,” the group of current and former criminal justice officials argued in one court filing.
A motion from the DA’s conference says that by taking authority away from elected prosecutors, the new law “essentially takes rights away from the people of Tennessee.”
The subtext of the battle over jurisdiction in these post-conviction proceedings is a conflict between Republican state officials — including lawmakers and Skrmetti — and the more progressive DAs elected by voters in the state’s major cities.
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The AG’s office has aggressively pursued executions in recent years. In 2018, then-AG Herbert Slatery asked the Tennessee Supreme Court to schedule eight executions within the span of four months. The following year, he asked the court to schedule nine executions. The state killed seven men from death row between 2018 and 2020, a historic execution spree that was stopped only by the COVID-19 pandemic. In 2022, Gov. Bill Lee halted all executions to allow for an independent review of the state’s lethal injection protocols after problems in the process were revealed. Tennessee Department of Correction Commissioner Frank Strada told a legislative committee on Wednesday that new protocols will be ready by the end of this year.
The state’s current AG, Skrmetti, was previously Slatery’s chief deputy.
Meanwhile, at the local level, elected district attorneys have largely not been pursuing death sentences. Only eight people were sentenced to death in Tennessee from 2010 to 2023.
In Nashville, DA Glenn Funk has not sought a death sentence since taking office in 2014. He has, however, gone to court to have one vacated. In 2019, Funk asked a Nashville judge to approve an agreement replacing the death sentence of Abu-Ali Abdur’Rahman with a life sentence because of what Funk described as racial discrimination in jury selection and other prosecutorial misconduct during Abdur’Rahman’s 1987 trial. After Criminal Court Judge Monte Watkins approved that deal, Slatery announced that he would fight it. He later declined to appeal a reworked plea deal in the case.
This dynamic has shown up in Memphis, too. Mulroy took office in 2022 after running as a progressive prosecutor and defeating the notorious incumbent, Amy Weirich. Two years earlier, Weirich had gone to court to oppose DNA testing in the case of Pervis Payne, a man on death row who has maintained his innocence for more than 30 years.
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Mulroy has said he opposes the death penalty, and his more progressive stances on a variety of issues have made him a target of Republican lawmakers. In July, state Sen. Brent Taylor (R-Memphis) announced he would try to have Mulroy removed from office. It was Taylor who sponsored the 2023 law that removed local DAs from the capital post-conviction appeals process. In a Facebook post last week, Taylor celebrated the appeals court ruling and said explicitly he’d passed the law to keep Mulroy from reducing the sentences of people on death row. He described Mulroy’s approach as part of a “trend we are seeing from Restorative Justice Schemers and progressive DAs around the country.”
Taylor didn’t craft the law alone. Internal AG’s office emails obtained through public records requests and cited in a January court filing from the federal public defender’s office in Nashville show Skrmetti’s office was intimately involved in drafting and passing the law. The filing includes emails about the effort going back to fall 2022.
The law was also advanced in a way that obscured its intent for much of the legislative session. As highlighted in the court filing, a bill was filed in the legislature on Jan. 30, 2023, with a caption explaining that it was aimed at addressing the backlog of untested rape kits in Tennessee. But in early March, after a meeting between officials from the AG’s office and Republican state House Speaker Cameron Sexton, that bill was amended into the law that would later pass. After the bill passed the state House, according to the records cited in the federal public defenders’ filing, Skrmetti messaged his chief of staff to thank him for “making that happen so quickly and smoothly.”
