Will Shelby County, TN Prosecutors be Disciplined?

“JUSTICE HAS TO COME AT SOME POINT”

by Sharon Rondeau

(Nov. 19, 2016) — Two recent letters received from inmates at the Shelby County, TN jail reported that Shelby County District Attorney General Amy Weirich was under some type of investigation for conduct associated with her duties as the chief prosecutor for Tennessee’s 30th Judicial District.

Shelby County encompasses the city of Memphis, which is in close proximity to the state’s western border with Arkansas.

While in one letter, the inmate stated that he believed DAG Weirich to be “under house arrest,” the second letter from a different inmate received on Friday accurately described allegations against her as currently under investigation by the Tennessee Board of Professional Responsibility (BOPR).

Weirich has been a prosecutor for 25 years and Shelby County DAG for just over five years.  She replaced former DAG Bill Gibbons, who took a position with the Tennessee Department of Homeland Security but now serves as president of the Memphis Shelby County Crime Commission.

According to Gibbons, violent crime in Memphis has been increasing alarmingly as a result of gang activity, drug trafficking, and domestic violence.

A BOPR complaint against Weirich was filed in 2014 resulting from the 2009 trial of Noura Jackson, who was accused and convicted of murdering her mother in 2005.  According to The Commercial Appeal, Weirich and Stephen Jones, both Assistant DAGs at the time, were named in separate complaints of misconduct.  Both have retained counsel to represent them in ongoing hearings regarding the allegations.

A January 29, 2016 article in The Commercial Appeal detailing the respective complaints against Weirich and Jones references “Brady material,” otherwise known as “Brady violations” (Brady v. Maryland), an issue which arose in the case of State of Tennessee v. Roy Cook in Roane County and remains unresolved.  In August, Cook filed BOPR complaints against his prosecutor, Robert Edwards, and two of his four previous defense attorneys alleging misconduct which have not yet received a disposition.

In August 2014, the same month an investigation was opened on Weirich, the Tennessee Supreme Court reversed Jackson’s conviction on the grounds that “the lead prosecutor’s remark during final closing argument at trial amounted to a constitutionally impermissible comment upon the defendant’s exercise of her state and federal constitutional right to remain silent and not testify.”

A new trial was ordered, with Jackson eventually entering an Alford plea and serving a total of ten years in prison which ended on August 7 of this year.

The second inmate’s letter, dated November 13, 2016, described a “frontier” of “criminal gangsters who break their own laws,” referring to those in the county’s “justice” system.  “We even have inmates who have law suits, but no one is willing to accept these case, Because of who they are against,” he wrote [sic].

Of the complaint against Weirich, he said, “She is being accused of with holding information in the case and violations of rules of diligence, fairness to the opposing party and counsel and misconduct. These are just the one’s in Ms. Jackson case, but it goes way beyond that.” [sic], likely quoting from The Commercial Appeal‘s November 5 article on the Jackson case (fifth paragraph from the end).

The inmate further alleged “embezzlement, fraud, extortion, criminal activity and CIVIL RIGHTS VIOLATIONS” on the part of Weirich and the county government in its operation of the Shelby County jail.

On page 2 of the letter, he wrote, “Justice has to come at some point and that point is now.”

According to the BOPR website, “Disciplinary Counsel investigate complaints alleging unethical conduct. After investigation, Disciplinary Counsel recommends dismissal of the complaint if there is insufficient proof of a violation of the Rules of Professional Conduct. If the investigated complaint reflects a violation of the Rules of Professional Conduct, Disciplinary Counsel recommends diversion, private informal admonition, private reprimand, public censure, or the filing of formal disciplinary charges.”

The Board comprises 12 members and a number of attorneys who investigate complaints.  All Board members and disciplinary counsel are appointed by the Tennessee Supreme Court.  The Board’s mission is reportedly “To assist the Court in protecting the public from harm from unethical lawyers by administering the disciplinary process; to assist the public by providing information about the judicial system and the disciplinary system for lawyers; and, to assist lawyers by interpreting and applying the Court’s disciplinary rules.”

The BOPR does not appear to make complaints public but publishes the results of its respective investigations once they are concluded.

On September 30, Weirich’s counsel attempted to make the case in a Motion for Summary Judgment that since none of the nine judges who reviewed the case reported Weirich’s actions to the BOPR, discipline was unwarranted.  However, the BOPR rejected that argument on November 2.

The website prosecutorialaccountability.com is following the Weirich case and on November 14 opined, in part:

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 under her own.

If this position sounds more than opportunistic—if it smacks of self-serving cynicism at its worst—you may be on the right track. Researchers have long known that although judicial codes of conduct technically require judges to report instances of lawyer misconduct to the disciplinary board, “judges do not perceive their role in regulating attorney conduct as an ethical mandate, nor do they appear to consider it a necessary component of their judicial duties.” This is, of course, a problem. (One may reasonably wonder if judges are particularly reluctant to report prosecutorial misconduct because so many are themselves former prosecutors.) Ms. Weirich’s response perversely underscores the need to address that problem by attempting to instrumentalize the institutional failure to her benefit. Pulling from a prosecutorial playbook we are becoming more and more familiar with, she seeks to preclude meaningful review of her actions by claiming that another body has already provided that review. In short, prosecutors facing potential sanction exploit the reality that “overlapping policing mechanisms create confusion about the appropriate locus of disciplinary authority.”

As The Post & Email has been reporting for the last seven years, Tennessee criminal courts are operating unconstitutionally in that the grand juries contain handpicked, judicially-appointed foremen who inevitably unduly influence the remaining members. The Fifth Amendment to the Bill of Rights included the grand jury as an unbiased means of review of evidence presented against a citizen of the community prior to a formal charge being filed by the government.

Letters received from Walter Francis Fitzpatrick, III earlier this fall indicated that in addition to the handpicking of the foreman, judges in Shelby County appoint a grand jury foreman pro tempore,” which is mentioned nowhere in Tennessee code.

Some inmates have told The Post & Email in correspondence that Shelby County “doesn’t have a grand jury.”

Since Fitzpatrick and Tennessee Department of Correction (TDOC) inmate Jerome L. Johnson were temporarily housed in the Shelby County Jail for a hearing in front of Judge Lee Coffee in August, close to three dozen inmates have written to this publication with accounts of corruption within the 30th Judicial District, many of which invoke Weirich’s name and position.

As Fitzpatrick related, after testifying about his extensive research on Tennessee grand juries and their judicially hand-picked foremen, Coffee ordered him ejected from the witness stand and assumed the role of prosecutor.

The Shelby County District Attorney General website contains an explanation of a “Grand Jury Section” within the DAG’s office which reportedly “receives reports of investigations by various local, state, and federal law enforcement agencies regarding violations of state criminal law which have occurred in Shelby County. These reports are reviewed by the assistants assigned to the grand jury section to determine if there is sufficient evidence of criminal conduct to submit the case to the grand jury.”

The website also claims that “The Shelby County Grand Jury is separate and independent of the District Attorney General’s Office.”

Late last summer, a Shelby County citizen reported that she was told that the court clerk’s office possessed no grand jury foreman appointing orders between the years 2008-2016, which The Post & Email found is not the case.  Our own request for documents received no response.

In Tennessee, the Board of Judicial Conduct is responsible for investigating complaints against judges, although disciplinary action taken against members of the judiciary is very rare.

In Fitzpatrick’s case, an appellate court ruled that a grand jury must not necessarily be free from bias against an accused, an opinion which the Tennessee Supreme Court and U.S. Supreme Court chose not to review.

The complete letter received on Friday focusing on Weirich is below.

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