A Tennessee death row inmate is challenging the newly expanded authority of the appointed state attorney general to argue certain capital cases, a power that lawmakers shifted away from locally elected prosecutors under a new law after some expressed reluctance to pursue the death penalty.
The law passed in April by the GOP-led Tennessee Legislature and signed by Republican Gov. Bill Lee has generated opposition from attorneys and Democratic lawmakers. They say the change violates the state Constitution, bypasses the will of voters and targets progressive-minded district attorneys who have defied lawmakers in the past.
The statute is the latest example of attempts by GOP governors and legislatures in several states to take on locally elected officials who have de-prioritized enforcement of laws they deem unnecessary.
Lawyer Robert Hutton has filed a motion for Larry McKay, asking a judge to disqualify Attorney General Jonathan Skrmetti from representing the state in McKay’s effort to have a judge hear new evidence and grant another trial.
McKay was convicted of two murders during a robbery and sentenced to death 40 years ago. McKay's motion claims new scientific methods have revealed that firearms evidence presented at trial was unreliable and a ballistics expert's conclusions cannot stand.
Skrmetti was handed authority over the case from the local prosecutor, Shelby County District Attorney Steven Mulroy, under the law passed this year.
The handoff involves collateral proceedings in death penalty cases before a trial court, which apply to issues related to new evidence, DNA testing and intellectual disability, for example. They don’t fall under the appeals process, which the attorney general oversees.
Mulroy in Memphis and Davidson County District Attorney Glenn Funk in Nashville both have said they oppose the death penalty. Both have also said that they would make prosecuting doctors under the state’s abortion ban a low priority and that state laws targeting the LBGTQ+ community are unnecessary.
In recent years, other district attorneys around the country have refused to prosecute some Republican-passed state laws, from voting restrictions to limits on certain protest activity. In Georgia, lawmakers passed a bill in March establishing a commission to discipline and remove prosecutors who Republicans believe aren’t sufficiently fighting crime.
In Florida, former state attorney Aramis Ayala clashed with Republican governors Rick Scott and Ron DeSantis for refusing to seek the death penalty. Both governors reassigned death penalty cases to other prosecutors.
Richard Dieter, the Death Penalty Information Center’s executive director, said tension exists in capital cases where the district attorney has said the death penalty is flawed and that they will almost never seek it.
“Governors and attorney generals have taken steps toward removing individual cases from the local DA's authority and even have sought to disqualify the DA from all potentially capital cases,” Dieter said.
Dieter said “it would make sense” for district attorneys to handle collateral challenges, which typically begin in trial courts.
Mulroy supports McKay's motion, which argues that the new law hurts the district attorney’s ability to fulfill his responsibilities as an official elected locally under Tennessee's Constitution. The attorney general is picked by Tennessee's Supreme Court.
"The new statute also violates the voting rights of such voters,” Mulroy's filing states.
Tennessee has put seven inmates to death since 2018, the most recent occurring in February 2020.
In 2019, Funk agreed to seek a sentence reduction to keep Black death row inmate Abu-Ali Abdur'Rahman in prison for life. Abdur’Rahman had petitioned a judge to reopen his case on claims that trial prosecutors treated Black potential jurors differently from white ones.
Republican Sen. Brent Taylor, the sponsor of the bill passed in April, argued that under the previous law, district attorneys could be unfamiliar with the sometimes decades-old death penalty cases under appeal. That means the post-conviction challenges “lose their adversarial characteristic that ensures justice,” Taylor said.
He also contended that the attorney general should control more of the cases that his office already handles through appeals. Additionally, Taylor said victims’ families would be better off communicating with just the attorney general's office.
Sen. Raumesh Akbari, the Democratic minority leader, said the law shouldn’t be changed because of possible dislike for the “policies of our more liberal district attorneys.”
“When you come for an entire office and change how things proceed based on who holds that seat at that time, that’s when you’re making bad policy,” Akbari said on the floor last month.
Mulroy, a Democrat, has said he opposes the death penalty “as a policy matter” and that he would vote against it if he were a legislator.
Still, Mulroy is pursuing the death penalty against Ezekiel Kelly, who is charged with killing three people during a Memphis shooting rampage. In announcing the decision, Mulroy said it's his duty to follow the law in Kelly’s case but maintained his general opposition to the death penalty.
Funk also has said he personally opposes the death penalty.
“I still follow the law, in that I review those cases and have a team of assistant DAs to work through the case to then provide any recommendations" about whether to seek death, the Democrat told The Associated Press in 2021.
McKay has always maintained his innocence. His motion notes that the district attorney can seek a lesser penalty if case circumstances change, a possibility that would benefit McKay if he were granted a new trial.
Shelby County Criminal Court Judge Paula Skahan is presiding over McKay's motion. She previously ruled that death row inmate Pervis Payne was intellectually disabled and unfit to be executed, removing him from death row.
Attorneys fear the state could use the law to step into other matters in capital cases and argue against consideration of DNA evidence and intellectual disabilities.
“The Attorney General’s intervention bill is fiscally irresponsible, unconstitutional, and an attack on the voters of Shelby and Davidson County, which will result in an unnecessary delay in the adjudication of death penalty cases by an entity that is not accountable to the voters,” said Kelley Henry, Payne’s lawyer.
The attorney general's office said it will file its response to McKay's motion but declined further comment. Skahan set a June 2 hearing about the motion.
