The elected District Attorney General of Shelby County, Tennessee, Amy Weirich, continues to defend herself against ethical complaints lodged against her by the Tennessee Board of Professional Responsibility. The ethical charges emerge from Ms. Weirich’s role as the lead prosecutor in the high-profile murder trial of Noura Jackson—a conviction that was unanimously reversed by the Tennessee Supreme Court due to Weirich’s prosecutorial misconduct. That misconduct took on two forms: Ms. Weirich’s improper comments in closing argument on Ms. Jackson’s decision not to testify; and the State’s failure to disclose exculpatory evidence to the defense team. Now, years later, the body charged with enforcing the professional rules of conduct for Tennessee lawyers is asking that Ms. Weirich be appropriately disciplined.
While the proceedings have been covered well by local media, one less-explored aspect of filings recently made available further reveals the depths to which Ms. Weirich is willing to stoop to avoid accountability. She responded to the Board’s initial petition for discipline by filing a motion for summary judgment in the hopes of having the petition dismissed without a hearing. The basis for the motion? Ms. Weirich essentially claims that the Board’s allegations have no merit because the judges who have reviewed the underlying criminal case never reported her. That’s right. Because state judges evidently failed to comply with their own code of conduct, Weirich reasons that she should be let off the hook under her own.
If this position sounds more than opportunistic—if it smacks of self-serving cynicism at its worst—you may be on the right track. Researchers have long known that although judicial codes of conduct technically require judges to report instances of lawyer misconduct to the disciplinary board, “judges do not perceive their role in regulating attorney conduct as an ethical mandate, nor do they appear to consider it a necessary component of their judicial duties.” This is, of course, a problem. (One may reasonably wonder if judges are particularly reluctant to report prosecutorial misconduct because so many are themselves former prosecutors.) Ms. Weirich’s response perversely underscores the need to address that problem by attempting to instrumentalize the institutional failure to her benefit. Pulling from a prosecutorial playbook we are becoming more and more familiar with, she seeks to preclude meaningful review of her actions by claiming that another body has already provided that review. In short, prosecutors facing potential sanction exploit the reality that “overlapping policing mechanisms create confusion about the appropriate locus of disciplinary authority.”
Fortunately, the Board’s lawyers responded clearly. It stated that Weirich’s motion “conflat[ed] the ethical obligation to report misconduct with the conclusion that a sanctionable violation of the Rules of Professional Conduct has or has not occurred. It is the responsibility of the hearing panel to make an independent determination of misconduct in this matter.” And, bluntly, “[n]one of the courts engaged in analysis of the Rules of Professional Conduct in their opinions or orders.” The hearing panel responsible for deciding the matter saw through the Shelby County DA’s deflection and denied Ms. Weirich’s motion.
The panel’s decision preserves the possibility that Tennessee will set a good and much-needed example of what it looks like when a disciplinary body takes allegations of prosecutorial misconduct seriously. Professional discipline in this context has been too rare. The Shelby County District Attorney General’s office may be a good place for the effort to start. After all, it is no stranger to misconduct. It has lost other convictions to its malfeasance and sloppiness, and it has previously tried to minimize the professional ramifications of Brady violations in a death penalty prosecution. (It will be interesting to see if Ms. Weirich takes the same approach to Brady again in response to a supplemental petition for discipline the Board of Professional Responsibility recently filed elaborating on the disclosure and diligence problems in the Jackson case.)
Meanwhile, media should continue to be on the lookout for other prosecutors who whack-a-mole accountability efforts by arguing that another body has already done the work. Ms. Weirich’s contention that “[t]he inaction of the nine judges [who reviewed the Jackson case] – and particularly the Supreme Court – is conclusive as to the allegations in the Petition” is wrong. The inaction is simply conclusive about another accountability problem that should not distract us from the deep and systemic prosecutorial accountability deficit that lawyer disciplinary boards must begin to fill.