by Sharon Rondeau
(Jul. 31, 2023) — On July 17, 2023, former Tennessee inmate Kristina Cole applied to the newly-formed “Justice Review Unit” within the state’s 30th Judicial District for a review of her 2017 convictions on two drug charges, crimes she maintains she did not commit.
The 30th Judicial District contains the city of Memphis and is home to approximately 621,000 people. According to U.S. News & World Report, “Memphis has a higher crime rate than similarly sized metro areas.”
Cole spent nearly six years in prison but was released in April following Gov. Bill Lee’s recommendation of early parole due to a 2020 change in the statute which had imposed an enhancement of her sentence. Although no longer incarcerated, Cole will be on probation for eight years, she told The Post & Email, and is seeking to have her criminal record expunged after proving her innocence.
The Justice Review Unit was created by District Attorney General Steve Mulroy (D), elected last summer to replace Amy Weirich (R), who was revealed through a Harvard-commissioned study of prosecutions in four states to have been “the most overzealous prosecutor” over a five-year period.
“The Shelby County DA’s Office is committed to ensuring that convictions and sentences are valid, the innocent are protected, the guilty are punished, and crime victims receive the justice they deserve,” the unit’s mission statement claims. “In our prosecutions, we seek the truth and stand for justice.”
Both Cole and her co-defendant, Jason L. White, have professed their innocence of the charges which sent Cole to prison for 13.5 years at 100% and White for six decades after nearly completing a 21-year term for an unrelated crime, also to be served at 100%, meaning there is no possibility of parole.
White has filed numerous appeals and emergency motions alleging judicial misconduct and ex parte communication between the judge and then-assistant district attorney general Christopher Scruggs as evidenced by a May 16, 2016 transcript revealing Scruggs using language to describe to the judge the charges against White laced which was tinged with opinion. During the brief “hearing,” neither White nor a legal representative was present.
In his most recent appeal, White filed a Writ of Error Coram Nobis with the Division III of the Shelby County, TN Criminal Court, asserting that a sworn affidavit from Cole produced since her release provided “new evidence” in his case not formerly available.
In an interview with this publication shortly after she regained her freedom, Cole expressed gratitude while acknowledging the long road ahead to rebuild her life and hopefully clear her name after multiple appeals, a post-conviction petition and an appeal thereof failed to yield an overturning of the convictions.
“I am now free but not ‘free’ because I’m still fighting,” she wrote in an open letter in May. “I’m no longer in prison, but I have to start over with everything. I’ve missed almost six years of living with my family. I’ve missed milestones in my children’s lives that I will never get back. My kids and mom have been as traumatized by my incarceration as I have. What Jason has endured has been even worse. He’s been fighting our case from day one and refuses to remain quiet about the injustice that’s been done to us. I was given 13.5 years at 100% and he had 60 years at 100% added to his time when he should have been home in 2018.”
In her letter to the Justice Review Unit, Cole explained that the package launching the case against her which contained methamphetamine delivered to her front porch by the Bartlett Police Department was not properly addressed to her. As evidence, she attached the original shipping label bearing a different, nonexistent Memphis address as “Appendix p.9,” documentation which was provided to The Post & Email in 2017 by White’s mother, Kimberly White, revealing the “controlled” delivery of the BPD to Cole’s home while BPD officers watched from a distance, then approached her with a search warrant once she brought the package inside.
Cole has since said she believes White was the actual target of the operation and that she was an unwitting victim to that end.
As we have reported, then-BPD Detective Mark Gaia changed his testimony from initially stating he did not send text messages from Cole’s phone to admitting he had sent “one” while Cole was in BPD custody and handcuffed.
“I assert that Detective Gaia falsely gave testament of the address for this package in order to illegally obtain a search warrant to enter my residence,” Cole wrote in her application to the JRU. “Detective Gaia then gave false testimony that the package was sent by FedEx to my address when the repackaged box was shipped via UPS to him at the Bartlett Police Department (see attached UPS Shipping Label, Appendix p. 10). This action was a direct violation of my 4th Amendment Right for protection from unreasonable search and seizure as the package was not addressed to me nor my address of 2552 Jenwood St but to Bailey Green of 2552 Linwood St.”
Included in her evidence packet was a letter from a private investigator reporting the repackaging of the box from FedEx to UPS shipment by Visalia, CA Det. Adam Collins to the BPD, contradicting Gaia’s sworn testimony that it was delivered by FedEx to Cole’s home. The investigator’s letter also states that Collins expressed surprise that he was not contacted to serve as a defense or prosecution witness in the case.
The Post & Email has not been able to reach Collins or Gaia, the latter of whom left the BPD and now reportedly works for FedEx. Although White’s attorney sent multiple subpoenas to Gaia to appear at White’s long-sought post-conviction hearing last summer, Gaia successfully evaded service, and then-Judge Robert “Bobby” Carter, Jr. took no steps to compel his presence in the courtroom.
The day after Cole filed for a review of her convictions, the Justice Review Unit sent her a response in which Deputy Chief Robert H. Gowen claimed Cole did not “state a factual basis for a claim of actual innocence, unjust procedure or unfair sentence.”
Gowen claimed to Cole he was “trying to decipher what your actual claims might be” given that she allegedly included “incomplete excerpts” of information. “What you don’t provide is any new evidence,” he asserted.
He also denied there could be a “sentencing adjustment” since she is “already out of custody.”
Gowen’s “Conclusion” is arguably a legal disclaimer instructing Cole “to seek the advice of an attorney” to ensure her rights are protected.
A bright spot in the midst of her disappointment, Cole reported over the weekend that she found employment approximately three weeks ago. “They know about my record and still gave me an opportunity and I feel so blessed,” she told us in an email. “I’m not making as much money as I was at the factory,” she added, referring to a short-lived position at a manufacturing facility made aware of her record but upon closer examination, determined her convictions necessitated termination. “…but I really enjoy what I’m doing. I’m just happy to be working again,” Cole said.