Law letting Tennessee attorney general argue certain capital cases is constitutional, court rules

A Tennessee law giving the appointed state attorney general authority to argue certain death penalty cases and removing that power from the hands of locally elected district attorneys is constitutional, an appeals court has ruled.

Tennessee's Court of Criminal Appeals issued a decision Friday striking down a Shelby County judge's ruling that the law passed by the state's Republican-controlled Legislature was unconstitutional.

Passed in April 2023, the law allows the attorney general to step in and take over post-conviction capital cases. Judge Paula Skahan ruled later that year that the law did not follow the Tennessee Constitution because it removes the power of the locally elected district attorney to argue them.

The attorney general is an appointee picked by Tennessee’s Supreme Court.

Opponents of the law have called it an example of attempts by Republican governors and legislatures in several states to take on locally elected officials who have deprioritized enforcement of laws those officials deem unfair. Some attorneys and Democratic lawmakers have said the new law targets progressive district attorneys who have expressed reluctance to pursue the death penalty.

Meanwhile, attorneys for inmates 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 another trial based on new evidence. Shelby County District Attorney Steve Mulroy, who stepped into the case on behalf of McKay and other district attorneys across the state, said the matter “will ultimately be decided by the Tennessee Supreme Court.”

The law involves proceedings that are outside the traditional appeals process in death penalty cases. Those include going before a trial court to present new evidence, request DNA testing, or argue that a defendant has an intellectual disability. The attorney general oversees traditional appeals.

Skahan said that in trial court matters, the state constitution designates the district attorney as a state representative.

However, under the 2023 law, Skrmetti can replace Mulroy in McKay’s case. Mulroy supported McKay’s motion, which argued that the new law hinders the elected district attorney’s ability to fulfill his responsibilities.

McKay’s lawyer, Robert Hutton, filed the motion to disqualify Skrmetti from intervening. Hutton has said the law was an “overreach” by the Legislature.

The law’s sponsor, Republican state Sen. Brent Taylor, has said that district attorneys might 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,” he said.

Taylor also said victims’ families would be better off communicating with just the attorney general’s office.

The appeals court ruling affects other cases in Tennessee in which death row inmates are challenging their convictions outside the appeals process. Although the Legislature cannot interfere with the district attorney’s “virtually unbridled prosecutorial discretion to initiate criminal prosecutions,” the state has long been represented by the attorney general in “proceedings collaterally attacking criminal convictions,” the appeals court said.

Skahan made a mistake in ruling that the law transferring representation from the locally elected district attorney to the attorney general was unconstitutional, the appeals court said.

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 2023 establishing a commission to discipline and remove prosecutors who they believe aren’t sufficiently fighting crime.

Mulroy, in Memphis, and Davidson County District Attorney Glenn Funk, in Nashville, have said that they oppose the death penalty. State Sen. Raumesh Akbari, the Democratic minority leader, has said the law shouldn’t have been changed because of possible dislike for 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 40 years ago. His motion claims new scientific methods have revealed 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 be intellectually disabled.