MEMPHIS, Tenn. (AP) — A Tennessee law that gives the appointed attorney general authority to try certain death penalty cases and takes that power out of the hands of locally elected district attorneys is constitutional, an appeals court has ruled.
The Tennessee Court of Criminal Appeals issued a decision Friday overturning a Shelby County judge’s ruling that the law passed by the state’s Republican-controlled Legislature was unconstitutional.
The law, which was passed in April 2023, allows the attorney general to intervene and take over capital cases after conviction. Judge Paula Skahan ruled later that year that the law was inconsistent with the Tennessee Constitution because it takes away the power of the locally elected district attorney to enforce it.
The attorney general is an appointee selected by the Tennessee Supreme Court.
Opponents of the law call it an example of efforts by Republican governors and legislatures in several states to crack down on local elected officials who have prioritized enforcement of laws those officials deem unfair. Some attorneys and Democratic lawmakers have said the new law targets progressive prosecutors who have expressed reluctance to seek the death penalty.
Meanwhile, attorneys for prisoners fear the state could use the law to argue against considering DNA evidence and intellectual disabilities.
Attorney General Jonathan Skrmetti, a Republican, appealed Skahan’s decision, which affects death row inmate Larry McKay’s motion for a new trial based on new evidence. Shelby County District Attorney Steve Mulroy, who joined the case on behalf of McKay and other prosecutors in the state, said the case “will ultimately be decided by the Tennessee Supreme Court.”
The law includes procedures outside the traditional appeals process in death penalty cases. These include appearing in court to present new evidence, requesting a DNA test or arguing that a suspect has an intellectual disability. The attorney general oversees traditional professions.
Skahan said that in court cases, the state constitution designates the district attorney as the state representative.
However, under the 2023 law, Skrmetti can replace Mulroy in McKay’s case. Mulroy supported McKay’s motion, which argued the new law hinders the elected district attorney’s ability to fulfill his responsibilities.
McKay’s attorney, Robert Hutton, filed a motion to disqualify Skrmetti from intervening. Hutton has said the law was an “overreach” of the legislature.
The bill’s sponsor, Republican Sen. Brent Taylor, has said prosecutors may not be familiar with the sometimes decades-old death penalty cases being appealed. That means the post-conviction challenges “lose the adversarial character that guarantees justice,” he said.
Taylor also said the victims’ families would be better off if they only communicated with the attorney general’s office.
The appeals court’s ruling has implications for other cases in Tennessee in which death row inmates challenged their convictions outside the appeals process. While the legislature cannot interfere with the district attorney’s “virtually unfettered discretion to initiate criminal charges,” the state has long been represented by the attorney general in “proceedings that undermine criminal convictions,” it said. court of appeal.
Skahan erred in ruling that the law transferring representation from the locally elected district attorney to the attorney general is unconstitutional, the appeals court said.
In recent years, other district attorneys across the country have declined to prosecute cases related to some Republican-passed state laws, from voting restrictions to restrictions on protesting. In Georgia, Republican lawmakers passed a bill in 2023 that would create a commission to discipline and fire prosecutors they say aren’t fighting crime enough.
Mulroy, in Memphis, and Davidson County District Attorney Glenn Funk, in Nashville, have said they oppose the death penalty. State Sen. Raumesh Akbari, the Democratic minority leader, has said the law should not have been changed because of possible resentment of the “policies of our more liberal district attorneys.”
McKay was convicted of two murders during a robbery in Memphis and sentenced to death more than forty years ago. His motion claims that new scientific methods have shown that the firearms evidence presented at his trial was unreliable.
His co-defendant, Michael Sample, was released from death row after he was found to have an intellectual disability.
