Tennessee Attorney General Asks State Supreme Court to Schedule Nine Executions and Undo Plea Deal that Took a Tenth Prisoner off Death Row

Tennessee Attorney General Herbert Slatery (pictured) has asked the Tennessee Supreme Court to set execution dates for an unprecedented nine death-row prisoners, the largest execution request in the modern history of Tennessee’s death penalty. On the same day, September 20, 2019, Slatery attempted to intervene in the case of death-row prisoner Abu-Ali Abdur’Rahman to reactivate his death warrant and undo a court-approved plea deal with Nashville prosecutors that would overturn his death sentence and replace it with three consecutive life sentences.

Slatery’s actions drew fire from defense lawyers but silence from Tennessee Governor Bill Lee, who said the attorney general had the prerogative to seek the execution dates and challenge Abdur’Rahman’s plea deal. Assistant Federal Public Defender Kelley Henry, whose office represents seven of the nine prisoners targeted in Slatery’s motion said the attorney general’s “request for mass executions” came as a “surprise.” “Each case is unique and represents a number of fundamental constitutional problems including innocence, racism, and severe mental illness,” Henry told the Nashville Scene. “We will oppose the appointed Attorney General’s request.” According to media reports, many of the prisoners targeted by the execution requests have significant histories of mental illness.

Slatery also filed a notice of appeal in the Tennessee Supreme Court seeking to overturn a plea deal reached between Abdur’Rahman and Davidson County (Nashville) District Attorney General Glenn Funk. Abdur’Rahman, who faced an April 16, 2020 execution date, had sought a new trial alleging that prosecutor John Zimmerman had discriminatorily excluded black prospective jurors from serving in Abdur’Rahman’s capital trial. Based on these and other misconduct allegations against Zimmerman, Funk agreed that justice would be served with Abdur’Rahman’s sentence being reduced to life in prison.

Funk told Davidson County Criminal Court Judge Monte Watkins that “[t]he pursuit of justice is incompatible with deception” and conceded that Abdur’Rahman’s trial had been infected by “overt racial bias.” “Prosecutors must never be dishonest to or mislead defense attorneys, courts or juries,” he said. Judge Watkins approved the plea deal and resentenced Abdur’Rahman to three consecutive terms of life in prison on August 30, 2019.

In a statement issued in conjunction with his court filing, Slatery said that the plea deal “essentially grant[s] clemency through a court and a district attorney that both lack the authority to do so.” He claimed the resentencing order “uproots decades of established legal procedure and lacks any legal justification.” Funk did not respond to Slatery’s comments, except to say that his office stands by the plea deal. Abdur’Rahman’s lawyer Bradley MacLean said the plea deal was binding on the state and called Slatery’s intervention in the case “unprecedented.” “By attempting to undermine the authority and the prosecutorial discretion of the District Attorney,” MacLean said, “the Attorney General is turning a blind eye to the gross injustices in Mr. Abdur’Rahman’s case and is attempting to sanction the kind of racial bias and egregious prosecutorial misconduct that occurred in the case. The Attorney General is not seeking to uphold our most cherished constitutional principles. Instead, the Attorney General is taking a stand for racism and a prosecutor’s violation of his constitutional and ethical duties.”

Tennessee has carried out 11 executions since reinstating the death penalty in 1974. Between 1974 and 2017, it had never executed more than two prisoners in any year. However, it executed three prisoners in 2018 and has executed two so far in 2019, with one more execution still scheduled this year.

Slatery is seeking execution dates for four death-row prisoners from Davidson County—Byron Black, Oscar Smith, Henry Hodges, and Donald Middlebrooks—as well as Pervis Payne and Tony Carruthers from Shelby County, Farris Morris (Madison County), Gary Sutton (Blount County), and Harold Nichols (Hamilton County).