Over the years, we have regularly covered Shelby County District Attorney General Amy Weirich and her office. After all, we focus on prosecutorial misconduct and accountability. Her office has supplied plenty of the former. And, based on how the Tennessee Board of Professional Responsibility was approaching its request for professional discipline of Weirich, we held out some hope for the latter. Alas, Weirich announced a few days ago that she and the Board made an agreement in which she accepted a private reprimand and the Board voluntarily dismissed its petition for discipline. If your immediate response is to ask whether a private reprimand means anything, you are not alone.
The Board filed a petition seeking discipline in January 2016 (and supplemented it in October 2016) because the Tennessee Supreme Court had overturned Noura Jackson’s murder conviction due to Weirich’s misconduct. Her misconduct in that case was neither an aberration nor an isolated incident; she had a history of making improper comments during trial that preceded the prosecution of Ms. Jackson. (As a result of a trial tainted by misconduct, Ms. Jackson spent over 10 years of her life in prison.) The Board’s move nevertheless appeared bold; several commentators have observed that it’s “highly unusual” for a sitting elected District Attorney to face disciplinary charges.
Weirich publicly contested the petition from the get-go. When a friend of Ms. Jackon’s filed the initial complaint about the DAG’s prosecutorial misconduct with the Board of Professional Responsibility, Weirich fired off this head-scratching claim: “This complaint sets a bad precedent for prosecutors, defense lawyers and even for trial judges. That’s why I have chosen to fight this complaint—because it is the right thing to do.” Later, in response to the Board’s petition, she dug in, attempting to get it dismissed on some questionable grounds. The panel assigned to hear the case rejected this request, and we wrote—in a moment of optimism—“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.”
The Board just threw that possibility out the window.
Incredibly, it also tied its own hands, agreeing to keep all details of the resolution confidential. According to an Associated Press report, “The board did not say in its ruling why it dropped the charges, and it cannot discuss the decision publicly, said Krisann Hodges, deputy chief disciplinary counsel for the board. Hodges described a private reprimand as a ‘non-public form of discipline.’” Non-public form of discipline? Perhaps a Board member brushed one forefinger over the other, imparting a deep sentiment of shame within the DAG?
Years ago, writing about how rare it is for prosecutors to face professional discipline, Professor Richard Rosen wrote: “Prosecutors, above all other lawyers, know the difference between a slap on the wrist and real punishment.” Make no mistake. The Board’s “non-public” discipline is a slap on the wrist, if that. And Amy Weirich knows it. Indeed, intimately familiar with wrist-slaps, she gave one comparably puny punishment to a lawyer in her own office whom a judge had called out for suppressing exculpatory evidence and lying about it in a capital murder case. Calling Tom Henderson’s deception a “clerical mistake,” Weirich shielded him from any consequences beyond removing him from the prosecution team in that one particular case.
The Board is also familiar with results that trivialize the disciplinary process. Weirich was not the only prosecutor who faced scrutiny for her role in Ms. Jackson’s case; Assistant District Attorney Stephen Jones also dealt with potential professional discipline because he failed to disclose exculpatory evidence, contrary to his constitutional obligations. At disciplinary proceedings, he testified that he “just forgot” to do what he was legally required to do. Despite the constitutional violation, the panel decided that Jones made an “inadvertent” mistake and did not deserve any discipline. Given the disposition in DAG Weirich’s case, the sum total of professional discipline for the egregious misconduct in the Jackson case is a private reprimand.
So what should we take away from these latest developments? Here are four lessons.
- Prosecutors remain all powerful in the criminal justice system
This truth was never in doubt. Radley Balko described the reality well in a classic Huffington Post piece, which refers to prosecutors as “The Untouchables”:
In the end, one of the most powerful positions in public service — a position that carries with it the authority not only to ruin lives, but in many cases the power to end them — is one of the positions most shielded from liability and accountability. And the freedom to push ahead free of consequences has created a zealous conviction culture.
Meaningful discipline against Amy Weirich for her wrongdoing in the Jackson case would not have changed this culture, but it would have been a step in the right direction. Instead, the Board has ensured the status quo can remain intact.
- State bar associations do not meaningfully discipline prosecutors
For decades, legal scholars have established and re-established that prosecutors consistently and effectively resist professional discipline. Professor Fred Zacharias, now deceased, was a leading national expert on legal ethics and the professional discipline of lawyers. In 2001, he found that “prosecutors are disciplined rarely, both in the abstract and relative to private lawyers.” Indeed, “[s]tudy after study has documented the ways that professional disciplinary organizations have failed to [discipline prosecutors] . . . .” Again, meaningful discipline against Amy Weirich in the form of a public censure, a fine, and/or a period of suspension from practice would have suggested the Board’s authority has some teeth. Instead, the Board backed off.
- “Private” discipline is practically no discipline at all
State bar secrecy confounds public accountability, including and especially when the prosecutor at hand is herself an elected official. That the Board could sweep the resolution under the rug is truly troubling. Prosecutors will not be deterred from future misconduct if the “punishment” they potentially face is not even made public. Professor Zacharias noted this, too, in his research, discussing the fact that “[d]isciplinary proceedings occur, for the most part, secretly . . . .” This outcome is another example of why the disciplinary system should be more transparent.
- Despite her plea for sympathy, Weirich has expressed no remorse
In her press conference, DAG Weirich sought sympathy from the public. She said that “It has been a long and hard year for my family,” and emphasized that she has experienced “tremendous expense, both financially and personally” because of the Board’s actions. Given her history and the manner in which she handled this process, one can be forgiven for raising an eyebrow. Remarkably, at no point has she expressed true remorse for her misconduct. In fact, she seemed to minimize it: “an error was made . . . . [h]uman errors are going to be made.” The real error here? The Board’s implicit communication that restoring public confidence in the justice system is a secondary concern to protecting a powerful prosecutor from meaningful accountability.