Judge Rules Tennessee Statute Which Expands Attorney General Authority in Death Penalty Cases is Unconstitutional

On July 17, 2023, a Shelby County Criminal Court judge struck down a new statute, passed by the Tennessee Legislature in April 2023, to expand authority of the appointed state attorney general in death penalty cases. Judge Paula Skahan ruled that the law unconstitutionally removes the power of the locally elected district attorney. Some attorneys and lawmakers who disagreed with the new statute earlier expressed concerns that the new law targeted progressive district attorneys who were reluctant to pursue the death penalty.

The statute would have transferred authority to the Attorney General in all post-conviction capital proceedings going before a trial court to present new evidence, request DNA testing, or argue that a defendant has an intellectual disability. Shelby County District Attorney Steven Mulroy (pictured, right) also opposed the new law and argued that the district attorney has the sole power to prosecute cases in their own jurisdictions. 

On March 30, 2023, attorney Robert Hutton (pictured, left) filed a petition for coram nobis arguing that new evidence could have changed the outcome of Larry McKay’s 1982 capital trial. Mr. McKay was convicted of two murders during a robbery in Memphis and subsequently sentenced to death. His motion claims that new scientific methods now reveal that the firearms evidence presented at trial are unreliable. Under the statute, Attorney General Jonathan Skrmetti would have replaced D.A. Mulroy in Mr. McKay’s case; Hutton filed a motion that led to the court’s ruling. 

Hutton commented on the decision by stating, “This case is important historically, because back in the 1700s, the General Assembly did appoint all the prosecutors and all judges…There was a change in the 1850s because of graft and corruption. So what they said, going forward, they put in our constitution that prosecutors have to be elected locally.”

The Tennessee Attorney General’s Office stated that it “respectfully disagrees” with the ruling. Elizabeth Johnson, Press Secretary for the Office of the Tennessee Attorney General stated in an email, “Ensuring the adversarial system remains fully engaged over the life of a capital case is our obligation to the victims’ families because no family should be deprived of justice.” The Tennessee Attorney General’s Office is expected to file an appeal by Aug. 4, sending the challenge to the Tennessee Criminal Court of Appeals.

DPIC’s recently released report on race and the death penalty in Tennessee also addressed this statute. View report here.