by Sharon Rondeau
(Jul. 13, 2022) — A long-awaited post-conviction petition hearing for Tennessee inmate Jason Lamar White ended Monday after three days of proceedings in the Shelby County Criminal Court, Division III, Judge Robert “Bobby” Carter, Jr. presiding.
Hearings began on July 5 after more than a half-dozen postponements dating back to August 27, 2021, with White’s petition filed in April 2020.
Representing himself and preparing his case while housed in New Mexico without access to Tennessee law, White intended to show that the attorney his family retained for a 2016 drug-related charge and subsequent trial, Clairborne Ferguson, provided “ineffective assistance of counsel (IAC).”
Embedded in that issue is the matter of the alteration of White’s charges, which were originally stated on the Bill of Indictment as “Class ‘E'” felonies in alleged violation of TCA 39-17-433, “Promotion of methamphetamine manufacture.” The charges were mysteriously upgraded prior to trial, without a new indictment, to “Class ‘A'” felonies alleging violation of two different statutes expressed as, “Conspiracy: UPCS with intent to deliver and sell (methamphetamine) in a ‘drug free zone’ and carrying a significantly harsher penalty.
Underlying those anomalies is Tennessee’s routine appointment of grand jury foremen by the criminal court judge from outside of the jury pool, which contradicts the law stating that jurors are to be chosen “by random automated means, without opportunity for the intervention of any human agency to select a particular name and in a manner that causes no prejudice to any person.”
Additionally, Tennessee criminal court judges are permitted to reappoint grand jury foremen for as long as they wish such that the individual arguably becomes a court employee rather than an impartial leader of citizens convened to examine evidence of an alleged crime committed in the community.
An 1883 case demonstrates that at the time, the grand jury foreman was selected “from the venire,” or assembled grand jury members, after proper vetting. History shows that a 1913 law passed by the legislature but repealed in 1979 allowed for the personal selection of the foreman by the judge, and the practice remains in place to this day.
After extensive research from prison, Tennessee inmate Jerome Johnson authored a 2019 book titled, “The CORRUPT Grand Juries: A True Story.”
Former Shelby County grand jury foreman Pat Vincent was a subpoenaed witness of White’s who had served for many consecutive years and was never located for the post-conviction proceeding.
The charges against White arose from the “controlled delivery” of a package dropped on the front porch of Kristina Cole in the Bartlett section of Memphis bearing an address similar to, but not matching, Cole’s. Once the Bartlett Police Department left the FedEx package, which had originated with a Detective Collins in Visalia, CA, on Cole’s porch, they awaited her retrieval of it, then descended on the home with a search warrant.
Searching her computer without a warrant, however, then-Bartlett Police Detective Mark Gaia connected White to the alleged crime by alleged photographic evidence and Cole’s alleged tracking of the FedEx package online prior to its arrival. At the time, White was serving the final months of a 20-year sentence for an unrelated crime.
Prior to the July 2017 trial in which White, Cole and a third co-defendant were found guilty, the third defendant, Tennessee inmate Montez Mullins, provided a recorded confession to Detective Robert Christian contending that neither White nor Cole was involved in the plot to allegedly distribute drugs in Cole’s neighborhood.
Christian would later testify that he doubted the veracity of Mullins’s confession.
Carter presided over the combined trial for all three defendants, ultimately meting out a 30-year sentence to Mullins, a 13.5-year sentence to Cole, and 60 years in prison at 100% to White with a $2,000 fine, rendering him a prisoner for life.
Although on appeal Cole’s conviction was upheld, in April Cole’s post-conviction petition appeal succeeded in convincing the three-judge appellate panel to reverse Carter’s denial, ordering him to conduct a true “finding of fact” found to be lacking.
The Post & Email has obtained a highly detailed account of Monday’s proceedings, although the eyewitness stated it was impossible to capture in real time all the points White raised and the witnesses’ responses.
Despite three days of hearings now completed, White’s online record at the Shelby County Criminal Justice System portal indicates that July 5, the first day of the proceedings, and the two subsequent court dates, are designated as “taken under advisement” and that a “hearing” is scheduled for September 1, 2022.
During Monday’s session, Carter announced he will retire on August 31.
Last week, July 5 was designated as a “hearing” date.
An order dated July 11, 2022 indicates White was to be transferred from the Shelby County jail to the “DOC,” or “Department of Correction,” indicating White’s appearances in court were concluded.
White’s entire record online record as of July 13, 2022, 8:17 a.m. EDT can be viewed here:
Last month The Post & Email was told by TDOC Advisory Counsel Bryce Coatney it is likely White will be transported back to New Mexico following the post-conviction proceedings in Shelby County. In May 2019, White was sent to New Mexico at the bidding of 30th Judicial District lead prosecutor Amy Weirich, who relied on an uncorroborated report from Ferguson that White had assaulted him during a 2016 courtroom meeting, after which Ferguson curiously did not press charges.
A deputy who witnessed the interaction between White and Ferguson denied White assaulted Ferguson and reiterated that account on the witness stand on Friday.
Ferguson reportedly later claimed White had plotted to harm him, along with the prosecutor, Christopher Scruggs, further leading Weirich to make the case for White’s relocation to New Mexico to serve his sentence. At the time, White was preparing a direct appeal to the conviction to a West Tennessee appellate court.
As in the previous two hearings, White’s “elbow” counsel, J. Shae Atkinson, was present, although he arrived late on Monday, we were told.
The eyewitness provided the following regarding Monday’s hearing:
We weren’t allowed in the courtroom until they brought Jason in. At 11:15 we noticed the courtroom officials appeared to be leaving. We asked if court had recessed and were told, “Yes, until 12:30.” We left, got some lunch and returned to the waiting area for Division III. After an hour of waiting after lunch to be called in the courtroom, we went and asked. We were told that the court was waiting for Mr. Atkinson to get there, that he had to go to Fayette County (for court) and should have already been there. So we waited. It was approximately 15- 20 minutes when we saw Mr. Atkinson going into the courtroom. We were called in the courtroom at 1:10 and Jason was addressing Judge Carter on adding Count 2 of the Judgement Sheet to Exhibit 11. That was taken care of and Jason took the stand.
Jason didn’t ask questions, but went off a list of points he wanted to address to the court. He pulled his mask down, stating his name for the record and spelling it. Jason proceeded in saying that he was indicted of charges of “consp; promote manuf meth, TCA 39-17-433” on capias (exhibit 2) on which Richard De Saussure, III, criminal court clerk, witnessed the true bill of indictment. He was booked into jail on the same charges, brought to court and arraigned on June 2, 2016 (exhibit 3). In the courtroom Public Defender Felkner was appointed by Carter to arraign Jason. Mr. Felkner waived the reading of the formal charges and entered a not-guilty plea prior to talking to Jason first to make sure he was aware of the charges. Jason stated he had asked to talk with Mr. Felkner prior to addressing the court and Felkner told him, “In a minute.” After the arraignment Jason was taken back into the holding area when Brent Walker, a public defender, entered and spoke with him. Jason was asking questions and Mr. Walker asked Jason, “Did you not get copies of anything?” and Jason replied, “No.” Mr. Walker stepped out and came back with copies of Jason’s documents (**no detailed information I remember, but that could change once we get the transcripts**). Jason stated he then asked his family to start looking for an attorney for him.
Ferguson was retained in September 2016, the timeline of events revealed, on “the charges of consp: promote manuf meth, TCA 30-17-433,” that was reflected in the contract (exhibit 5) between the Ferguson law firm and the family member who hired him. Evidence showed that “five months later, an indictment appeared with a scan date of 9/2017, #16-02794 (Exhibit 1),” the eyewitness reported.
The observer’s account continued:
Jason stated Mr. Ferguson came to see him at the jail in September, where they discussed his case. Jason felt at that time Mr. Ferguson was taking interest in properly representing him, as Ferguson filed 17 pretrial motions on Jason’s behalf (those pretrial motions can be found in Jason’s post-conviction petition). Jason was sent back to Riverbend, it was at that point that Jason started to question Mr. Ferguson’s representation because Mr. Ferguson was not communicating with Jason about his case, and the pretrial motions had not been heard. Jason started writing Ferguson letters (Exhibit 14- 4/3/17 letter to Ferguson) about his case and his concerns on the motions and other items. Jason stated he started writing up Mr. Ferguson to the BOPR (Board of Professional Responsibility) (exhibits 15 & 16-4/3/17 & 6/6/17 letters to the BOPR) due to Mr. Ferguson not trying to respond to Jason’s concerns about his witnesses who were willing to testify, the difference in his charges, and the pretrial motions, among other things.
Jason stated on February 20, 2017 Mr. Ferguson brought Mullins in as a defense witness (Transfer Order on Mullins as a witness was entered as Exhibit 4 in the post-conviction proceedings) and on February 21, 2017 in a report date setting. DA Scruggs addressed the court on resetting the trial date to allow time for a lab report to come back (I think the 2/21/17 transcripts were entered as an exhibit but am not sure). Jason stated that he was presented before the court with Mullins to be arraigned as a co-defendant, that Ferguson had changed his defense strategy to allow the State to make the only witness who could testify to the facts in the case into a co-defendant clearly showed Mr. Ferguson had abandoned his line of defense.
Jason stated that on 4/28/17 during a report date setting Ferguson addressed Judge Carter on the fact that Jason no longer wanted Mr. Ferguson to represent him (Exhibit 6 transcripts). Judge Carter responded that he could get another attorney, but Ferguson could not sign off his jacket (file) until Jason had hired another attorney. He would not reset the trial date any further out and said the new attorney had to be prepared for the trial date (?). Jason stated at that point he proceeded to talk with Mr. Ferguson on his concerns about his case on a conference call with witnesses. According to Jason, Ferguson made unprofessional comments to Jason and Ferguson’s actions continued to appear against Jason’s best interest. Jason continued to write the BOPR (Exhibit 14). Jason read and introduced letters to the BOPR on Ferguson as exhibits 15 (6/6/17) & exhibit 16- 7/7/17); these letters detail numerous issues on Jason’s concerns about Ferguson’s actions or no actions on Jason’s behalf, the difference in the charges from the capias, arrest ticket, and 2016 indictment. Jason requested a refund from Ferguson. Jason stated in the letters to the BOPR that Ferguson was working with the state against him. Jason further stated that the 4/13/17 transcripts (exhibit 7) would reflect Ferguson acting as the state in indicting Jason with Mullins. According to Jason, Ferguson was clearly not protecting his constitutional rights to call witnesses or filing pretrial motions on his behalf, but Jason couldn’t understand why.
The letters contained information pertaining to a phone bill on the number 901-208-9195 (exhibit 17), Jason reportedly stated, that Gaia stated in his narrative belonged to Jason’s mother, Kimberly White, which Ms. White apparently disputed.
As The Post & Email has reported, Gaia was said to have “evaded service” of White’s subpoena for months and was not present during any of the post-conviction proceedings.
The phone number in question did not belong to Kimberly, she reportedly said, and Jason White attempted to present that fact to Ferguson in dispute of Gaia’s trial testimony against him.
Gaia would later change his testimony to admit he had used Cole’s phone to send a text message to White while she was in police custody, which was considered evidence at trial implicating Cole and White in the plot to distribute the drugs.
ADA Byrd objected to entering the phone bill on the 901-208-9195 number, but Carter allowed Jason to enter it on the record. Jason further stated the State was allowed to say Jason was on the receiving end of jail calls from Kristina by making reference to the phone bill and its being in Kimberly White’s name. That was the first sign of untruthful testimony made by Mark Gaia.
Jason was able to get Kristina Cole’s arrest ticket as (exhibit 18) on the record and further stated the text messages introduced during trial were unauthenticated. He brought up Gaia’s testimony on Kristina sending Jason text messages after receiving the FedEx package containing drugs when the arrest ticket shows she was booked into jail at 15:30 on 2/3/16. The text messages in reference to the package went out at 15:38, 15;39 and the last text 45 minutes later. Yet Gaia testified that the time they served the search warrant was 3:40. Jason raised Ferguson’s failure to object, question Gaia, and to challenge the state’s theory on Gaia’s testimony. Gaia admitted to sending the third text message to see who would show up. Although Jason’s brother and girlfriend showed up with the same number in his phone that was blowing Ms. Cole’s phone up, according to Mark Gaia’s trial testimony, he didn’t arrest them, seize their phone, or take any statements. Jason mentioned Ferguson’s failure to investigate, call a witness (Jason’s brother’s girlfriend provided a sworn affidavit as to her willingness to testify at trial).
Jason further stated that Kristina could not have been tracking a FedEx package when Mark Gaia received the drugs from Detective Collins through UPS, not FedEx. He was able to enter two pictures of the UPS shipping label to Mark Gaia- this was part of the discovery (Exhibit 19). ADA Byrd objected as she didn’t know if this was part of the exhibit, but Carter stated it was.
According to the eyewitness, “The accumulation of examples of Ferguson’s failure to properly challenge the state’s case, investigate, call witnesses, and object showed Jason’s IAC to be on target against Ferguson.”
Further, the eyewitness said:
Jason stated that on July 10, 2017, the morning of trial (start), Ferguson’s actions showed he was being untruthful with Carter on the ongoing conflict of interest as well as the breakdown in communication between Jason and Ferguson. Jason brought testimony of Deputy Darius Jones on Friday and the incident report (Exhibit 12) states after investigating the situation the morning of July 10, his investigation yielded no assault took place. Jason stated that in Ferguson’s failure to properly advise the court of the ongoing conflict, the courts forced Jason to trial with an attorney that had just lied about him. Ferguson testified on Friday that the judge would not allow him to come off Jason’s case, but Jason testified that Ferguson had an ethical obligation to file a motion to withdraw due to the conflict.
ADA Byrd asked Jason if the conflict started when Mullins became a co-defendant. Jason stated, “No, the conflict began when Jason personally starting writing Ferguson and the BOPR on Ferguson (these letters were entered as exhibits during the post-conviction hearing). ADA Byrd had a couple more questions, nothing really important. She raised the fact that the phone bill for the 901-208-9195 number wasn’t in Kimberly’s name, but in another relative’s name.
Jason addressed the returned subpoena on Mark Gaia (Oct. 25, 2021) where the deputy stated that a white female came to the door stating Gaia was a former Bartlett Police Officer now working at FedEx, that he wasn’t dealing with this anymore. Jason was able to get the document entered as Exhibit 20. This ended the proof of evidence.
Jason presented a mean closing argument, rehashing the testimony of Felkner, Ferguson, Jones, Kimberly, Mullins and himself as well as the exhibits introduced as evidence. He argued the fact that the court denied him the right to call witnesses Richard De Saussure, III, Amy Weirich and Det. Christian and the court not assisting to subpoena Mark Gaia. He said how their testimony could have established the fact of Ferguson stating the Shelby County Odyssey was correct in reflecting his charges so that any documents filed with the clerk’s office would have followed the same charge originally entered (being the Class E Felony TCA 39-17-433) and how Richard De Saussure’s testimony would have been used to establish if the Odyssey was incorrect or not. He recounted his own witnessing of the True Bill of Indictment, DAG Weirich’s signature on the indictment and her testimony on the different charges. Jason brought up how Det. Christian, who testified at trial that Mullins was not being truthful in his statement and that he didn’t have knowledge of anything; he was just at the residence to back Gaia up. Jason raised the fact that Mark Gaia was not subpoenaed to testify on the facts that Jason had raised in his post-conviction petition and Judge Carter denying him the right to put these witnesses on the stand prevented him from having a full and fair hearing. He spoke about how these witnesses would have helped in establishing on the record Mr. Ferguson’s ineffective assistant off counsel. Jason stated the state’s case rested on Gaia’s testimony as he was the key witness, that he had established through facts presented before the courts in the evidence introduced that Det. Gaia wasn’t being honest and in Gaia’s evading service he is not present to establish any other conclusions. Jason stated there was prosecutional misconduct in closing arguments by Scruggs when he used Mullins’s testimony as not being truthful.
Jason continued his closing argument and ADA Byrd gave her closing argument. Her argument focused on the conflict of interest during trial. She made remarks about Ferguson having stated that he could represent Jason after the assault incident without affecting his assistance of counsel, that Jason had issues with his prior attorney, and she addressed Jason’s claim that it was incorrect to say that Pat Vincent was not a legal foreperson (Jason had raised the fact he was employed by the courts/state for 10 years). Jason readdressed on what she said, summing things up and claiming Ferguson wasn’t being honest on the assault issues and taking issue with the court’s claim that Pat Vincent wasn’t subpoenaed due to lack of an address and that the court had asked at a judges’ meeting if anyone had his address. There was no evidence to show that there was a conspiracy, Jason said.
Jason was well-prepared; he quoted law and TCA statutes to back up his presentation.
It was an awesome day. Ms. Atwater was not there. Actually the court was bare except for Jason, Atkinson, me, my granddaughter, a friend. ADA Byrd, Judge, and a couple deputies. No Spectators in the courtroom, kind of weird. Jason has always drawn the attention of other attorneys when he addresses the court, even the court reporter talked about Jason and how he presented himself, spoke like an attorney. She even told me that she said something to the Judge about him being a lawyer or something. Judge Carter responded (not quoting) to bad he didn’t take a better path. There were times that Carter spoke like he already knew he was going to deny the post conviction but then again he did restate when I make my ruling which will be before I leave off on August 31 whichever party I rule against can appeal my decision. So we are praying he does the right thing. He is leaving the office so he could over turn it and say ya’ll deal with it. (That’s me speaking.) Shae Atkinson later told me in hallway that he was impressed that Jason was not at all the person he had lead to believe him to be. He further stated that Judge Ward was leaving the office next month and he overturned a post conviction. Atkinson basically said the judges are leaving office so reverse and let the next person deal with it. It was a long day, but however Judge Carter’s rules we are going to be ready to proceed with this case. Jason as well as we (as family) received may positive comments on his presentation that was encouraging. I continue to pray God puts a hedge of protection around Jason to keep him safe wherever he goes.
Finally, the eyewitness quoted Carter as stating, “When I make my ruling, which will be before I leave office on August 31, whichever party I rule against can appeal my decision.”