Judge strikes down law allowing Tennessee Attorney General to argue certain death penalty cases

A judge has ruled that the appointed Tennessee Attorney General cannot intervene on behalf of the state in the case of a death row inmate who is seeking a second trial

The appointed Tennessee Attorney General cannot argue certain capital cases on behalf of the state as in the case of a death row inmate who is seeking a second trial, a judge ruled Monday, saying that a new law violates the state Constitution.

Shelby County Criminal Court Judge Paula Skahan said the law granting Attorney General Jonathan Skrmetti authority to step into post-conviction death penalty cases is unconstitutional because it removes the power of the locally elected district attorney to argue such cases.

Skahan said the state Constitution designates the district attorney as a state representative in criminal trial court proceedings, which includes death row inmate Larry McKay's motion for another trial based on new evidence.

Lawyers for the state Attorney General plan to appeal. If it stands, the ruling would affect other cases in Tennessee where death row inmates are challenging their convictions outside of the appeals process.

McKay's lawyer, Robert Hutton, filed the motion to disqualify Skrmetti from arguing the case. Hutton said the ruling “strikes down an unconstitutional law,” which was the result of what he called “overreach” by the state Legislature.

The office of the Attorney General did not immediately comment on the ruling.

Skrmetti was granted the authority to argue the capital case under a law passed in April by the GOP-led Tennessee Legislature and signed by Republican Gov. Bill Lee. Under the law, Skrmetti would have replaced Shelby County District Attorney Steven Mulroy in McKay's case.

The law involves proceedings outside the traditional appeals process in death penalty cases — and going before a trial court to present new evidence, request DNA testing, or argue that a defendant has an intellectual disability. They don’t fall under the appeals process, which the attorney general oversees.

Mulroy supported McKay’s motion, which argued that the new law hinders the district attorney’s ability to fulfill his responsibilities under Tennessee’s Constitution. The attorney general is picked by Tennessee’s Supreme Court.

Hutton and Mulroy also argued that the law was unconstitutional because it violates the rights of voters who elect local district attorneys in 30 judicial districts across the state. The judge withheld a ruling on the voting rights argument.

Some attorneys and Democratic lawmakers said the statute targeted progressive district attorneys who have defied lawmakers in the past by expressing reluctance to pursue the death penalty. Attorneys for death row inmates have feared the state could use the law to step into other matters in capital cases and argue against consideration of DNA evidence and intellectual disabilities.

Opponents of the law also said it was the latest example of attempts by GOP governors and Legislatures in several states to take on locally elected officials who have deprioritized enforcement of laws they deem unnecessary.

In recent years, other district attorneys around the country have refused to prosecute cases related to some Republican-passed state laws, from voting restrictions to limits on protesting. In Georgia, Republican lawmakers passed a bill in March establishing a commission to discipline and remove prosecutors who they believe aren’t sufficiently fighting crime.

Republican state Sen. Brent Taylor, the bill’s sponsor, has said that 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.

Taylor 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.

Mulroy in Memphis and Davidson County District Attorney Glenn Funk in Nashville both have said that they oppose the death penalty. State Sen. Raumesh Akbari, the Democratic minority leader, has said the law shouldn’t be changed because of possible dislike for the “policies of our more liberal district attorneys.”

In arguing against McKay's motion, lawyers for the attorney general’s office argued that the law violated no part of the Tennessee Constitution and that McKay has not shown how he was negatively affected in ways that are not “conjectural” or “hypothetical.”

The attorney general’s office also denied that the law curtails the rights of voters who elected the district attorney.

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 the firearms evidence presented at trial was unreliable and a ballistics expert’s conclusions cannot stand.

His codefendant in the case, Michael Sample, was recently released from death row after he was found to be intellectually disabled.