Hello and Happy Thursday,
In an unexpected move last Friday, a Memphis judge ordered a new trial for Pamela Moses, the Black Lives Matter activist who was sentenced to six years in prison for trying to register to vote.
The decision to order a new trial was in part based on new evidence I obtained and wrote about in this newsletter last week. W Mark Ward, the judge in the case, ruled prosecutors should have turned over that evidence to Moses’ lawyers before the trial. The document, an internal email from the department of corrections, showed officials had investigated why a probation officer signed off on a form telling Moses she was eligible to vote when she actually was not. The investigation found that the officer had made a good-faith error. Moses’ lawyers had never seen that document. Amy Weirich, the district attorney, said the Tennessee department of corrections never provided the document to her office.
Moses was released from prison on Friday. Weirich’s office now has to decide whether to appeal Ward’s ruling, drop the charges, or retry the case. A spokesman for her office did not respond to several inquiries.
I’ll be following closely whatever happens next. But I also want to focus on the reason Moses’ case attracted so much attention in the first place: her harsh punishment. This morning, we published a piece that digs into why that six-year sentence struck such a nerve.
It’s impossible to talk about the Moses case without talking about race.
Many compared it to cases in which white people who committed more intentional acts of fraud merely received probation. There were the white men in Pennsylvania and Nevada who voted on behalf of dead family members and received probation. Or the white man who impersonated his son at the polls and also got probation. And of course, the numerous defendants who have received far less punitive sentences for storming the Capitol.
“It shows the disparity,” said Linda Harris, a lawyer who is seeking the Democratic nomination to challenge Weirich. “Why was this case prosecuted so vigorously?”
“It illustrates the immense discretion that prosecutors have,” said Steven Mulroy, a law professor at the University of Memphis and a Democrat who is also running for district attorney. “It raises the real spectre that at least implicit bias is factoring into these discretionary decisions.”
At the same time, Daniel Richman, a law professor at Columbia, told me that it was really difficult to draw conclusions by comparing prosecutions in different jurisdictions. “Ours is not a state-based criminal justice system, it’s a county based criminal justice system. Where, even within a state, you could have very large disparities across counties in the way a case is prosecuted. Or whether it’s prosecuted at all,” he said. “Discretion is something we both value as a means of achieving individualized justice and fear as a potential vehicle for discriminatory treatment.”
In Moses’ case, I was also interested in whether Moses’ harsh sentence was influenced by the fact that she had several prior felonies. In his original sentencing order, Ward pointed to those felonies to justify the sentence.
What went unsaid was the underlying fact that people with felony convictions face immensely confusing rules about whether or not they can vote. Regulations vary widely by state and Tennessee has some of the most inscrutable in the US. And once someone already has a felony, the consequences of making a mistake become more severe
In a statement, Weirich also noted that she offered Moses a plea deal that would have kept her out of prison, but Moses refused it and wanted to take her case to trial. It reminded me of the case of Crystal Mason, a Texas woman who was also sentenced to years in prison for a voting mistake, even though she said she had no idea she was ineligible. The Texas prosecutor in that case similarly noted she had offered Mason a plea deal that didn’t involve prison, but that Mason rejected it.
“People are asking, why is it we have a system where a prosecutor can basically say to somebody, you plead, we’ll extend your probation. If you don’t plead, you’re facing six years,” Capers said. “If she had taken the plea, nobody would have known about this case.”
Also worth watching …
A long-anticipated Republican review of the 2020 election in Wisconsin argued that lawmakers could “decertify” Joe Biden’s victory in the state – something that is not legally possible.
New voting restrictions loomed over the Texas primary, where progressive notched key wins and a Donald Trump ally suffered a major blow.
A federal judge in Georgia declined to impose new electoral maps in the state, even though he found evidence that the ones Republicans passed last year were illegal.
