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.