Court arguments are set to begin in Memphis on Friday in a case that will test a new state law that stripped local control of post-conviction proceedings in capital cases and granted it to the Tennessee Attorney General.
In capital cases, individuals often seek a review of their convictions, requesting a different judge to assess evidence, determine intellectual disability, competency for execution, and other factors in the hopes of obtaining a reduced sentence. This process is known as collateral review.
Previously, local district attorneys represented the state in these cases. However, a bill passed by the Republican-dominated Tennessee General Assembly and signed by Republican Governor Bill Lee granted this authority to Republican Tennessee Attorney General and Reporter Jonathan Skrmetti.
“The attorney general and reporter will have exclusive control over the state’s defense of the request for collateral review,” stated the bill. “The attorney general and reporter will not be bound by any stipulations, concessions, or agreements made by a district attorney general regarding a request for collateral review. This amendment prohibits a trial court from issuing a final order granting relief in a request for collateral review until the attorney general and reporter files a response to the request.”
The House bill was filed in January, but it felt largely under the radar, primarily focusing on the requirement for law enforcement agencies to inventory sexual assault kits.
However, an amendment removed all of that language and completely re-wrote the bill to give the state AG control in these post-conviction cases. The legislature passed the bill in mid-April, and the governor signed it into law later that month.
“This sudden move appears to be a response to the choices of voters in both Davidson County and Shelby County, who elected prosecutors to support more restorative and less punitive policies,” read a statement at the time from Tennesseeans for Alternatives to the Death Penalty.
Larry McKay, who received two death sentences for the murders of two store clerks in Shelby County in 1981, has now requested a court review of previously unexamined evidence in his case. Despite the new law, his attorney seeks disqualification of the “unelected” Tennessee Attorney General from the review.
McKay argues that the new law infringes on the responsibilities of local district attorneys, thereby violating the Tennessee Constitution. Additionally, he contends that the drastic alteration of the legislation violates the state constitution.
In support of McKay’s request, Shelby County District Attorney Steve Mulroy wants to review the new evidence. In a letter this month, Mulroy said, “The newly enacted statute is an unconstitutional effort to divest and diminish the authority granted to Tennessee’s District Attorneys General by the Tennessee Constitution. The new statute violates the voting rights of such voters because it strips material discretion from District Attorneys, who are elected by the qualified voters of the judicial district.”
State attorneys argue that McKay has sought review of his case multiple times in various courts. They challenge the arguments put forth by his attorney, asserting that the new statute does not violate the state constitution. They further note that McKay may not even get the desired outcome if the new evidence is reviewed.
“The General Assembly was entitled to take that statuary power away from the district attorneys and give it to the Attorney General in capital cases,” reads the court document. “They have done just that and their mandate must be followed.”
Memphis Criminal Court Judge Paula Skahan is scheduled to preside over the case and hear arguments on Friday at 10 a.m.
Chip Chockley 
Sycamore Institute TN 
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