Appeals court affirms law removing local DAs’ say in death penalty reviews
An appeals court has ruled that a 2023 Tennessee law removing a local district attorney’s discretion in certain death penalty review cases is constitutional.
The ruling reverses a trial court decision that the law was unconstitutional.
Robert L. Holloway Jr., a judge with the Tennessee Court of Criminal Appeals, authored the opinion Friday, Oct. 4, as part of a three-judge panel.
“After thoroughly considering the briefs and arguments of the parties and amici curiae, this court concludes that the trial court erred in finding that Public Chapter 182 was unconstitutional,” he wrote.
That trial court ruling came in July 2023 from Shelby County Criminal Court Division 1 Judge Paula Skahan.
Skahan found that the 2023 state law granting exclusive authority to the state attorney general in collateral review of death penalty convictions violated the state constitution. The law removed the power of collateral review, or determining whether there are constitutional errors in a death row inmate’s trial or sentence, from local DA’s offices.
Skahan’s ruling allowed the Shelby County District Attorney’s Office to represent the state in proceedings for a “writ of error coram nobis petition” filed by Larry McKay, a man who has been on death row for nearly 40 years.
A writ of error coram nobis cites new or previously unknown evidence that could potentially prove a convicted person’s innocence.
The Court of Criminal Appeals wrote in its opinion that defendant McKay did not prove the law was unconstitutional.
The appeals panel cautioned that it must “start with a strong presumption that acts passed by the legislature are constitutional” and that the court must be careful not to impose policy views or overstep the legislature’s policy judgments.
The panel also wrote that it was “persuaded” by a Pennsylvania Supreme Court decision, which found that the district attorney’s prosecutorial discretion narrows after the entry of a capital verdict.
“Any discretion the district attorney may have in the context of collateral review proceedings is curtailed due to the finality of the conviction,” the opinion reads.
McKay, a first-degree murder convict, filed the coram nobis motion in March 2023. McKay and Shelby County District Attorney General Steve Mulroy filed to challenge the state law on May 1, 2023, just days after Gov. Bill Lee signed it on April 28, 2023.
McKay’s attorneys argued that since the ratification of the constitution, the district attorney has represented the state in all criminal matters at the trial court level, while the attorney general has represented the state at the appellate level.
The Attorney General argued the new law did not violate the constitution and McKay could not prove injury from it. The office also argued that the constitution only provides for habeas corpus collateral review, in which a defendant alleges they are unlawfully and unconstitutionally incarcerated. The AG’s office also argued it had long represented the state at the trial court level in such proceedings.
McKay has been on death row since 1984. He and his co-defendant, Michael Eugene Sample, were convicted after being charged with murdering two people during an armed robbery.
Topics
Tennessee Court of Criminal appealsJulia Baker
A lifelong Memphian, Julia Baker graduated from the University of Memphis in 2021. Other publications and organizations she has written for include Chalkbeat, Memphis Flyer, Memphis Parent magazine and Memphis magazine.
Public Safety on demand
Sign up to receive Public Safety stories as they’re published.
Enter your e-mail address
Want to comment on our stories or respond to others? Join the conversation by subscribing now. Only paid subscribers can add their thoughts or upvote/downvote comments. Our commenting policy can be viewed here.