by Sharon Rondeau
(Jul. 10, 2022) — On Friday in Shelby County, TN, a post-conviction petition hearing convened for the second day for inmate Jason Lamar White, who is representing himself and attempting to make the case to Judge Robert “Bobby” Carter, Jr. that his attorney failed to provide effective assistance of counsel during his 2017 trial on a non-violent drug-related crime.
Observers included White’s mother, Kimberly White; Tennessee gubernatorial candidate Carnita Atwater; several witnesses Jason White subpoenaed through his “elbow counsel,” J. Shae Atkinson, who was also in attendance; Assistant District Attorney Leslie Byrd, representing the 30th Judicial District; White’s former attorney, Claiborne Ferguson, who accused White of assaulting him during a private courtroom encounter but apparently did not press charges; and Sheriff’s Deputy Darius Jones, who testified in support of a previous statement he provided as an eyewitness to the exchange in question between White and Ferguson that he did not observe White committing an assault.
Ferguson’s accusation was instrumental in sending White to New Mexico in 2019 to serve his sentence, rendering him without access to Tennessee law while in the process of an appeal and for future court filings, including the post-conviction petition.
Witnesses White subpoenaed but who did not appear Friday were former Shelby County Criminal Court Clerk Richard de Saussure III; 30th Judicial District chief prosecutor Amy Weirich; former Bartlett Police Detective Mark Gaia, whose testimony White believes could be key to proving the case against him was fatally flawed; and Detective Robert Christian, to whom another inmate and co-defendant, Montez Mullins, proffered a confession to the drug crime and stated that neither White nor the third defendant, Kristina Cole, was involved.
Another witness White subpoenaed, longstanding former Shelby County grand jury foreman Pat Vincent, apparently could not be located.
Carter presided over the combined trial, with Mullins receiving a 30-year sentence and Cole a 13.5-year sentence which she has appealed. In April, Cole’s post-conviction petition appeal was ruled upon favorably when a three-judge panel reversed Carter’s denial and ordered him to conduct a true “finding of fact” regarding Cole’s claims.
Mullins testified Tuesday, the first day of White’s post-conviction proceeding; Scruggs and Ferguson were present, but according to an eyewitness, White was not allowed to call Scruggs to the stand. Gaia reportedly “evaded service” to multiple subpoenas for many months, and de Saussure’s whereabouts are reportedly unknown.
Carter reportedly blocked Weirich and Scruggs from appearing Friday.
Approximately two weeks ago, the Shelby County Sheriff’s Office did not respond to The Post & Email’s inquiry about service of the subpoenas.
Friday’s hearing began at 10:00 a.m., an eyewitness informed us, with White raising the issue with Carter as to Scruggs’s and Ferguson’s presence in the courtroom on Tuesday as potential witnesses. “Judge Carter advised Jason that during post- conviction proceedings it was allowed for the witnesses to be in the courtroom, unlike trial proceedings,” the eyewitness told us.
White’s first witness on Friday was, in fact, Ferguson. “Ferguson took the stand with his mask tightly strapped covering his nose, mouth and chin,” the eyewitness related. “Jason asked him to state his name and spell it for the record. (We were all required to wear masks; Carter’s would be hanging off his face most of the time as were Byrd’s and Jason’s.) Jason proceeded to ask his first question and Mr. Ferguson’s voice was very muzzled. Jason addressed the court on his voice being muzzled and not being clear on the record. We noticed that Ferguson would relax his mask when he wanted to be heard or when the state addressed him. Carter would allow Ferguson to speak outside the scope of the question and when the state addressed him. Ferguson talked in general and in only a few things made direct comments about Jason’s case. Ferguson was allowed free rein of the courtroom at times.”
White raised with Ferguson the matter of his original Class “E” charges and their upgrading to Class “A” charges, without explanation, during the trial process. “Ferguson stated he did not investigate the charges and tried to dismiss the lower charges as an error in the Odyssey portal,” our eyewitness said, referring to the Shelby County Criminal Justice System portal, which uses the “Odyssey” record-keeping system.
According to the eyewitness, Mullins testified consistently with his 2017 confession, stating he “did not know” how Cole and White came to be implicated in the drug scheme. Unlike Scruggs and Ferguson, however, Mullins was kept in a “holding area” prior to his being brought to the stand.
Later in the trial, Jason called Kimberly to the stand to answer questions about her hiring of Ferguson on his behalf as well as another attorney to whom a $5,000 retainer was reportedly paid but who “never showed up.”
Toward the end of her son’s questioning, Kimberly told us, “Judge Carter was instructing me to step down and I looked at him. I said, ‘I do have something else to say.’ Judge Carter looked at me and I said, ‘Ms. Byrd is not being honest with the court about her participation in an email thread in trying to stop Mr. White’s return for his hearing.’ Judge Carter was trying to stop me from speaking, I saw ADA Byrd look back at Mr. Arkinson saying something and the deputies were standing up. The court was chattering.. I was stepping down as the judge was going off, saying, ‘I don’t want to have to put you out of the courtroom.’ (Jason had addressed the fact on the email thread with the state and TDOC trying to set his hearings up by video. ADA Byrd had denied on Tuesday that she had any knowledge of an email thread to do a Zoom hearing on Jason’s post- conviction.) I was so upset Tuesday because the judge would not allow Jason his legal material and the email thread was in it.”
On July 4, Kimberly met with Atwater on Facebook Live about her son’s case. In introductory remarks, Atwater said as a gubernatorial candidate, she has “met many people…thousands who feel like they have been mistreated by the judicial system in the State of Tennessee.”
As to the case Kimberly was about to make on Jason’s behalf, Atwater said, “This is a mother who have [sic] truly been fighting expeditiously for her son for five years…and when you look at some of the documents…it is simply overwhelming.”
“I, too, have found myself in the middle of miscarriage of justice in our judicial system,” Atwater added, “so I can relate to this mother because, as innocent as I was, I went through kind-of the same thing with a judge who pretty-much denied my due process, put my witnesses and myself out of court when she was getting ready to make her judgment, which is…a disgrace when it come to a judge…” [sic]
Atwater left at 1:30 p.m. Friday due to a previous commitment, we were told, after which our eyewitness observed Carter’s demeanor change. At that point, we were told, “Judge Carter started shutting Jason down, denying him to call DAG Weirich, ADA Scruggs (who just happened not to be there), Richard de Saussure III, Mark Gaia, and Robert Christian. Carter pressured Jason to tell him why he needed these witnesses and what questions he wanted to ask them. Jason explained the importance of each witness and how their on-the-record testimony was needed to establish his ineffective assistance of counsel against Ferguson. Carter was adamant in telling Jason, ‘It’s all in the transcripts and the transcripts will be part of the record. You can appeal my ruling if I rule against your petition but we aren’t there yet.’ ADA Byrd even helped Judge Carter in trying to convince Jason that she wasn’t objecting to almost everything he had addressed. So they were tag-teaming him in trying to ease his concerns of establishing on-the-record the witnesses’ testimony to support his IAC.”
In response, we were told, “Jason told Carter that he was acting as DA and the Judge, that he was having to fight the state and the judge, that he had transcripts that clearly stated Judge Carter was directing the state to quash his subpoena on the witnesses (May 19, 2022 transcripts). Carter first denied he did that, then stated he didn’t care.”
The referenced transcript stemmed from a status hearing which was expected to be the post-conviction petition hearing after a number of postponements. However, Jason White was ultimately not transported back to Tennessee, and on May 20 the post-conviction hearing was set for the final time for July 5. In an exchange with Scruggs and Atkinson about White’s subpoenas on May 19, Carter was noted to have commented (p. 11), “The proper procedure is he can subpoena anybody he wants in the world including the Pope of the Catholic Church. It would be on the State then to file a motion to quash that subpoena or that individual through, you know, counsel to file it if they felt that it was honest.”
The hearing will continue for a third day on Monday.