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Tennessee DAs say they should handle death penalty reviews

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(The Center Square) – The Tennessee District Attorneys Conference has attempted to interject itself in a fight over who has the authority to represent the state in post-conviction review of capital cases in the state.

The conference filed a Feb. 1 brief supporting Shelby County District Attorney Steve Mulroy in his attempt to represent the state in post-conviction reviews of Larry McKay, who was convicted of murder in 1982 and faces the death penalty.

Tennessee has not executed a death row inmate since 2019, when executions were paused during the COVID-19 pandemic and then due to a review of the state’s lethal injection protocols.

A state law passed by the Tennessee Legislature in 2023 gave Tennessee Attorney Jonathan Skrmetti exclusive authority to represent the state in post-conviction reviews. But Mulroy and the Tennessee District Attorneys Conference believe that law is unconstitutional.

After the conference filed its brief Feb. 1, Skrmetti asked the court to remove that brief from the record because Skrmetti believes he is the only legal representative the conference should have, not the outside counsel of David R. Esquivel and Jordan E. Thomas of Nashville’s Bass, Berry and Sims LLC that was hired to file its support of Mulroy.

The conference was created by the Legislature in 1961 and represents the district attorneys from Tennessee’s 32 judicial districts along with Executive Director Stephen D. Crump, who previously worked in the 10th Judicial District representing Bradley, McMinn, Monroe and Polk counties.

The brief states it has the unanimous support of the conference as it seeks to support the Shelby County trial court’s ruling the Tennessee law installing Skrmetti is unconstitutional.

The brief claims the Tennessee Constitution gives the authority to district attorneys to represent the state in post-conviction petitions.

“Allowing the attorney general to represent the state in post-conviction proceedings undermines the broad prosecutorial discretion afforded to district attorneys,” the brief says. “Finally, in death penalty cases, the district attorney is in the best position to gauge the conscience of the community, which Tennessee courts have recognized as an important factor in these unique cases.”

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