Stephen P. Jones – Memphis Flyer

Two of Shelby County’s top prosecutors fired back last week at a state board that claims both should be disciplined for breaking ethics rules in the 2009 murder trial of Noura Jackson.

Shelby County District Attorney General Amy Weirich and Assistant District Attorney Stephen P. Jones were both targeted for discipline by the Tennessee Supreme Court’s Board of Professional Responsibility (TBPR) in January. The Tennessee Supreme Court admits attorneys to practice law in the state, and its TBPR oversees and disciplines those attorneys for violations.

The TBPR opened investigations on Weirich and Jones in 2014. In a January 2016 petition, it claimed that Weirich violated Jackson’s constitutional right to silence in her trial when Weirich implored Jackson: “Just tell us where you were! That’s all we’re asking, Noura!”

Screenshot from video of the Jackson trial

The TBPR found that Jones withheld a key witness statement during the trial, evidence that could have helped Jackson’s defense. Both of these infractions swayed the jury’s decision in the trial, according to the TBPR, and might have unnecessarily sent Jackson to prison.

Jackson’s defense attorneys have said Weirich’s statement poisoned the jury against Jackson, as it appeared that Jackson did not want to answer Weirich’s question. Weirich said she was only reciting testimony from a witness in the trial, which is allowed by court rules.

In ordering Jackson a new trial in 2014, Tennessee Supreme Justice Cornelia Clark wrote that the statement withheld by Jones could have been used by Jackson’s attorneys “to bolster its attack upon the thoroughness of the police investigation and to argue” that the statement could have pointed to another suspect. Jones said while he did withhold the statement, he didn’t do it intentionally.

Both Weirich and Jones filed formal responses to the TBPR in the past two weeks. Both said they should not be punished by the TBPR. Both said they will not accept the board’s recommended discipline, a censure, which is a public rebuke of their actions that comes with some small fees and fines but no suspension of their law licenses.

Both said they will, instead, fight the rulings altogether in separate hearings that work much like criminal trials with witness testimony, evidence, and attorneys. The hearings are not open to the public. Taking the cases to trial, in essence, could result in harsher punishments for Weirich and Jones.

“No court has ever stated that Ms. Weirich acted with intent or was guilty of any ethical misconduct,” wrote Weirich’s attorney Jef Feibelman in his response to the TBPR. “Explicitly and implicitly they have found otherwise.”

Jones said he got the witness statement during the trial and put it in the flap of a trial notebook and forgot about it, though he did mean to turn the evidence over to Jackson’s attorneys. Jones’ attorney Brian Faughnan argued Jones’ action was “unintentional and inadvertent.” As such, he said it would be unfair to so strictly enforce court rules against Jones for an “innocent” mistake.

Jones’ attorney said that the trial caused “significant, atypical stress to Mr. Jones that impacted his health” and asked the board to consider this as a mitigating factor in their case against him.

Making a Murderer has outraged people across the country, but people don’t seem to notice when similar concerns exist in their own communities.

Shelby County is a good example.

Making a Murderer is a Netflix documentary series that shines light on the questionable conviction of Steven Avery and his nephew, Brendan Dassey, for the rape and murder of Teresa Halbach. This close examination of a murder investigation and trial shows how hard it often is to know if the person accused of a murder is actually the one who did it, even when the police and prosecutors express certainty.

Solving any murder is hard enough. But when evidence is gathered through dubious means and when a prosecutor disregards ethical and legal boundaries in order to secure a conviction, we cannot know if a wrongful conviction has occurred. What’s worse, such actions also obscure the evidence that might have revealed the truth.

Since Making a Murderer debuted, friends have been asking me if Avery’s story is an outlier. They are surprised and angry when I tell them that unethical and illegal prosecutorial practices can contribute to injustices around the country.

Shelby County is an illustrative example of how prosecutorial misconduct leads to unjust outcomes.

When prosecutorial misconduct occurs, it’s typically not apparent. And even when revealed, prosecutorial misconduct is difficult to prove. It is all the more notable then that courts have found District Attorney General Amy Weirich and her office to have committed numerous injustices. Separately and together, they raise serious questions about exculpatory evidence being hidden from defendants, juror perceptions being improperly influenced, and unreasonably harsh and unjust punishments being pursued.

A current example is the murder conviction of Noura Jackson. In that case, D.A. Weirich and Assistant District Attorney Stephen P. Jones failed to turn over critical exculpatory evidence to the defense until after the trial. Weirich made improper and prejudicial comments during her closing argument, imploring the defendant to tell the jury where she was that night, in flagrant violation of Jackson’s constitutional right not to testify. The missing evidence was so important and Weirich’s conduct so improper, that the Tennessee State Supreme Court unanimously overturned Jackson’s conviction and ordered a new trial.

As a result, Weirich is one of the few prosecutors in the country facing public censure by a state Supreme Court’s Board of Professional Responsibility.

Unfortunately, the misconduct being explored in the current proceedings is not isolated. This is not the first time that Weirich and senior attorneys working under her supervision have faced public censure for withholding exculpatory evidence during a murder trial.

In the capital murder trial of Michael Rimmer, a judge found that senior prosecutor Tom Henderson blatantly lied to defense counsel, claiming that the state was unaware of any exculpatory evidence, even though he had evidence that a police sergeant had identified someone else as the murderer. The judge blasted Henderson, saying he “purposefully misled counsel with regard to the evidence obtained in the case.” Rimmer, who had been on death row since his conviction in 1998, was granted a new trial in 2012.

A public censure was issued by the Tennessee Supreme Court against Henderson in 2013. Henderson pleaded guilty, but was only ordered to pay a fine, and still practices in Weirich’s office. Weirich has refused to discipline Henderson for this conduct.

Federal Judge Gilbert Merritt perhaps said it best in 2008. Having presided over Shelby County cases for years, he wrote: “This set of falsehoods is typical of the conduct of the Memphis District Attorney’s office during this period.” These examples indicate that what was true of Weirich’s office in 2008 is still true.

Making a Murderer has outraged people across the country, but what those of us who study wrongful convictions know is that the problems plaguing the Avery case are not extraordinary, but shockingly common. And we know that once a case has been contaminated by bad evidence or prosecutorial abuse, it’s almost impossible to find the truth, unless it’s one of the small minority of cases where newly found evidence can be subjected to DNA testing.
Every jurisdiction in this country deserves prosecutions that are ethically and legally sound. The residents of Shelby County would do well to direct their concern about Making a Murderer not on Manitowoc County, Wisconsin, but on the daily realities in their own county.

Daniel S. Medwed, Professor of Law, Northeastern University School of Law.