IN THE CRIMINAL COURT OF TENNESSEE FOR THE 30" JUDICIAL DISTRICT AT MEMPHIS DIVISION/Z STATE OF TENNESSEE, vg = 78 om CHARGE(S) DEFENDANT ORDER OF RECUSAL AND REMAND TO THE CLERK FOR REASSIGNMENT. It appearing to this Court it should recuse itself for the following reason: Vre lott 200) IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that this Court hereby recuses itself from holding any further proceedings pertaining to the above-styled cause, and remands it to the Criminal Court Clerk for reassignmey Entered this“Y day — of S APPROVED: Filed: LLOUEL) Attorney for Defendant Richard L. DeSaussuyy/ 1 Clerk By: DE. IANO AA 7IN THE CRIMINAL COURT OF TENNESSEE. FOR THE 30™ JUDICIAL DISTRICT AT MEMPHIS DIVISION STATE OF TENNESSEE /; f 4 ieee. CHARGES) DEFENDANT DEAT PEWATY CASE ORDER OF RECUSAL AND REMAND TO THE CLERK FOR REASSIGNMENT. reby recuses -syyled cause, and remandsit to the Criminal Court Clerk for reassignment. wang. Entered this_/ day of Dea 20 Lf. APPROVED: Filed: O-/4 2 Attorney for Defendant DC. Assistant Attorney General ll C744: 11/13/2017 10:34 AM ; o eo IN THE CRIMINAL COURT OF TENNESSEE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS DIVISION Vit STATE OF TENNESSEE § ichar, ssure, Clerk oy Oe vs. § NO. 00-03095 ‘ANDREW THOMAS § ORDER OF RECUSAL ‘The petitioner, indicted for the offense of murder in the Perpetration of a felony on March 21, 2000, was convicted by a jury and ‘sentenced to the death penalty on September 26, 2001. The Court of Criminal Appeals and the Tennessee ‘Supreme Court affirmed the conviction and sentence. The Court of Criminal Appeals affirmed Judge James C, Beasley, Jr's denial of a petition for post-conviction relief. Among other reasons, the Petitioner had alleged prosecutorial misconduct as grounds for post-conviction relief. The 6 Circuit Court of Appeals granted the defendant's appeal, finding that the State of Tennessee had violated the defendant's due process rights by failing to disclose that a witness had received $750.00 from the federal govemment before trial. On October 30, 2017, the United States Supreme Court declined to review the ruling of the 6" Circuit. On November 3, 2017, the United States District Court for the Wester District of Tennessee, Westem Division, granted the defendant a conditional writ of habeas corpus directing a ‘retrial in this case. The Court ordered a new trial within 120 days (see-attached orders),( seal tiny f 11132017 10:34 AM During the time that the petitioner was indicted for, convicted of, and sentenced for these offenses, Judge Coffee was employed as an Assistant District Attomey General with the Shelby County District Attorey’s Office. Per an advisory opinion by Justice Alan E. 8. W. 3d 720 (Tenn, Crim, App. 2001), Liteky v. ur 510 U.S. 640 (1994), State v. Alley, 882 S.W. 24 810 (Tenn. Crim. App. 1994), Pursuant to Stafe v. Scott, 2008 Tenn. Crim. App. LEXIS 268, the issue of a trial {vdge's recusal based upon alleged bias or prejudice rests within the discretion of the trial Coun Caruthers v. State, 814 S.W. 24 64 (Tenn. Crim. App 1991). A judge should grant @ motion for recusal whenever his or her “impartiality might reasonably be questioned." Tennessee ‘Supreme Court Rule 10, Code of Judicial Conduct, Canon HEX1), State v. MeCary, 119 S.W.3d 226, 260 (Tenn. Crim. App. 2003). In response to a disqualification motion, the judge should net only examine “subjective bies* but should also inquire( s1are017 1034 ant fee © oe whether the judge's impartiality might be reasonably questioned under an “objective Standard.” State v. Connors, 995 S.W. 2d 146 (Tenn. Crim, App. 1998). The latter Standard takes into account that disqualification is required if there is an appearance of Parlay to the reasonable observer, and itprecludes a judge from ‘avoiding recusal merely by avowing his or her impartiality.” Gaperton v. A. T. Massey Coal Co. 129 S.C. 2252 (2008). IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that this Court recuses itself from conducting any further proceedings Pertaining to the above-styled Cause and remands this matter to the Criminal Court Clerk for reassignment to a different Di case hes been assigned, all matters in the case shall be heard in that division”. This of Criminal Court. Per the Local Rules of Practice and Procedure 4.02., ‘once a Division of Court is not the last court that ruled on the continuing issues filed by this petitioner. Entered this 13" day of November 2017. Judge Lee V. €. Filed: Richard L: DeSaussure, Ill, Clerk By: De. stFILED IN THE CRIMINAL COURT OF TENNESSEE FOR™ =~ THE 30™ JUDICIAL DISTRICT AT. MEMES 2b P HIS STATE OF TENNESSEE No. 00-03095__ ANDREW THOMAS MOTION TO DISQUALIFY THE SHELBY COUNTY DISTRICT ATTORNEY GENERAL'S OFFICE FROM INVOLVEMENT IN ANY RETRIAL OF ANDREW THOMAS Seventeen years ago, Andrew Thomas was convicted of felony murder and sentenced to death in Tennessee state court based substantially on the testimony of his estranged wife, Angela Jackson, who had been secretly paid $750 upon the request of a joint state and federal task force afier her testimony against Thomas in his earlier federal trial arising from the same incident. Amy Weirich, the Assistant District Attomey General who prosecuted Thomas's state case," failed to disclose the $750 payment to Thomas’s defense counsel. A panel of the Sixth Circuit found that this failure to disclose violated Thomas's constitutional right to present “a complete and full-throated defense.” Thomas v. Westbrooks, 849 F.3d 659, 666 (6th Cit.), cert. denied, 138 S. Ct, 390 (2017). Weirich also failed to correct Jackson's testimony that she had not received payment for her testimony. In February 2017, a panel of the U.S. Court of Appeals for the Sixth Circuit remanded ‘Thomas's case with directions to the federal district court to issue a writ of habeas corpus “unless the State of Tennessee affords [Thomas] a new trial.” id. at 668. Fo avoid the actual contlict created by District Attorney General Weirich’s personal and political interest in Thomas's case, and 10 avoid the appearance of impropriety created by her ' The prosecution team also included then-Assistant District Attorney General Jennifer Nichols, who was recently appointed to serve as a judge in this Court ©involvement, this Court must disqualify the entire Shelby County District Attorney General's Office from involvement in any retrial of Thomas’s case. BACKGROUND I. FACTUAL AND PROCEDURAL HISTORY OF ANDREW THOMAS’S CASE On April 21, 1997, James Day, an armored car driver, was collecting deposits from a Walgreens in Memphis, Tennessee, See Thomas v. Westbrooks, 849 F.3d at 661. While transporting the deposits to the waiting armored car, he was shot by an assailant who stole the deposits, id, The shooter then entered the front passenger side of a car with a getaway driver and fled the scene. /d. Day was treated for his gunshot wound and released from the hospital. See id. A joint state and federal law enforcement team, the Safe Streets Task Force, led the investigation into the robbery and shooting. Id. at 661-62. A. Federal Trial In 1998, a federal grand jury indicted Thomas for three offenses related to armed robbery and illegal possession of a firearm. Indictment at 1-3, United States v. Thomas, No. 2:98-c1- 20100-JPM (W.D. Tenn.) (June 15, 1998), ECF No. 1. Thomas pleaded not guilty and proceeded to trial. At trial, the prosecution's key witness was Thomas’s estranged wife, Angela Jackson, See Thomas v. Westbrooks, 849 F.3d at 661. Jackson testified that Thomas had confessed to her that he committed the crime and that Thomas spent substantial amounts of money around the time of the incident. Transcript of Federal Trial Proceedings at 429:14-430:4, 436:14-437:14, United States v. Thomas, No. 2:98-cr-20100-JPM (W.D. Tenn.) (Nov. 9, 1998), ECF No. 100, Because there were no reliable eye witnesses who definitively identified Thomas as the shooter, Angela Jackson's testimony was essential to the prosecution’s case against Thomas. He was convicted and sentenced to life without parole, plus five years. ‘Thomas v. United States, 849 F.3d 669, 674 (6th Cir. 2017).B. State Trial In 1999, Day died from complications that the State alleged were a result of the shooting. See Tennessee v. Thomas, 158 S.W.3d 361, 374 (Tenn. 2005). A Shelby County Grand Jury indicted Thomas and co-defendant Anthony Bond for felony murder in connection with the robbery and shooting. Id. at 373. The Shelby County District Attorney General's Office prosecuted the case, with Weirich leading the prosecution. The Safe Streets Task Force also investigated and participated in the state trial. At Thomas’s state trial, Weirich delivered opening and closing arguments centered on the “greed and evil” of Thomas and his codefendant. She began her opening statement by telling the jury that “[y]ou can’t hide from greed and evil,” and that on April 21, 1997, “greed and evil took the form of the defendants before you this afternoon.” Transcript of State Trial Proceedings at 378:14, 379:5-6, Thomas v. Carpenter, No. 2:12-cv-02333 (W.D. Tenn.) (Sept. 17-26, 2001), ECF Nos, 12-13 to 13-15 (hereinafter State Trial Tr.]. Throughout her arguments, she referred to ‘Thomas and his codefendant as “greed and evil” no less than 21 times. See, e.g., id. at 380:2 (“Greed and evil got the bag of money... id, at 380:12-14 (“Greed and evil went home to Andrew Thomas’ apartment, divided up the money, celebrated, carrying out their plan.”); id. at 1574:24-25 (“{G]reed and evil really didn’t care that day whether [James Day] lived or died ....”); id. at 1575:8 (“But that wasn't good enough for greed and evil."); id. at 1583:22-24 (“Andrew Thomas and his partner—greed or evil, whichever you want to call him...."); id. at 1596:21-22 (“{G]reed or evil—whatever you want to call him.”). Angela Jackson was again the prosecution’s key witness against Thomas. Thomas ¥. Westbrooks, 849 F.3d at 661 (“Angela Jackson ... was the pivotal witness in both trials.”). Jackson testified that she had not received any reward—not “one red cent”—in exchange for her testimony against Thomas. State Trial Tr. at 739:15-16.Following his trial, Thomas was convicted of felony murder and sentenced to death. Id. at 1713:18-25, 2019:14-2020:2. The Supreme Court of Tennessee affirmed the conviction and death sentence. Tennessee v. Thomas, 158 S,W.3d at 383. C. _ Post-Conviction Proceedings and Appeals Following Thomas's federal and state convictions, he filed petitions in federal court under 28 U.S.C. §§ 2254 and 2255 to vacate each of his convictions and sentences. Thomas v, Westbrooks, 849 F.3d at 660-61; Thomas v. United States, 849 F.3d 669, 673 (6th Cir.), reh’g denied (Apr. 27, 2017), cert. denied, 138 8. Ct. 261 (2017). During evidentiary proceedings in 2011—nearly thirteen years after Thomas's federal trial—it came to light that the Safe Streets Task Force had paid Angela Jackson $750 after her testimony in Thomas's federal trial and before her testimony in his state trial. Thomas v. Westbrooks, 849 F.3d at 662. A member of the task force testified that Jackson had been paid a “reward” payment, which contradicted her testimony at the state trial that she had not received any payment. Q. Do you know whether Ms. Jackson was ever paid anything in the form of a reward or anything else in connection with her testimony? A. Yes, she was. After the conclusion of the case, after the sentencings, I believe she was given the sum of $750. ‘Transeript of Evidentiary Hearing at 293:5-9, United States v. Thomas, No. 2:03-cv-02416-JPM- tmp (W.D. Tenn.) (Oct. 13, 2011).? Weirich never disclosed the fact of this payment to ‘Thomas's defense counsel. Thomas v. Westbrooks, 849 F.3d at 662, After leaming of the payment, Thomas raised a federal claim in the district court that Weirich’s failure to disclose the payment violated his rights under Brady v. Maryland, 373 U.S. 83 (1963). Thomas also raised a ? Because the transcript does not appear on the relevant docket, an excerpt from the cited transcript is appended as Exhibit A to this motion.claim that Weirich engaged in prosecutorial misconduct by failing to correct Jackson's testimony. Thomas sought an evidentiary hearing to develop proof concerning both the Brady claim and the prosecutorial misconduct claim. One purpose of the hearing was to develop proof concerning the extent of Weirich’s knowledge about the payment. Thomas's request for an evidentiary hearing became moot, however, when the State conceded the fact of the undisclosed payment, the “knowledge” elements of both claims, and defended principally by claiming lack of prejudice. Thomas v. Westbrooks, 849 F.3d at 663; Joint Stipulation, Thomas v. Carpenter, No. 2:12-ev-02333 (WD. Tenn.) (Sept. 3, 2014), ECF No. 78 [hereinafter Joint Stipulation] See also Resp't’s Br. Clarifying Issues, No. 2:12-cv-02333 (W.D. Tenn.) (Feb. 3, 2015), ECF No. 95, Page ID 12043. (“Accordingly there is no remaining factual dispute as to state prosecutor's knowledge regarding the substance of the testimony in question.”) Thus, Weirich’s knowledge of the secret $750 payment for both the Brady claim and false testimony claim has been conceded in this case. The District Court denied relief in the state case, finding no prejudice. On appeal, the Sixth Circuit reversed, vacating Thomas's convietion and death sentence. ‘The panel held that Weirich had violated Brady v. Maryland by failing to disclose the $750 payment. Thomas v. Westbrooks, 849 F.3d at 667. The panel concluded that, if the jury had known about the payment, there is a reasonable probability it would have found Jackson untrustworthy and unreliable, resulting in Thomas's acquittal. Id at 665. The State sought rehearing en banc and certiorari to the United States Supreme Court, both of which were denied.I, SCRUTINY OF AMY WEIRICH FOR PROSECUTORIAL MISCONDUCT ‘Amy Weirich has served as the District Attorney General for Shelby County since 2011? In recent months, Weirich has come under heavy scrutiny in the national media for prosecutorial misconduct in Thomas’s case and several others. In July 2017, Harvard Law School released a study ranking the Shelby County District Attorney General's Office #1 in Tennessee for prosecutorial misconduct and #1 in Tennessee for reversal rate, for the period from 2010 to 2015, The Recidivists: New Report on Rates of Prosecutorial Misconduct, Fair Punishment Project (Jul. 13, 2017) [hereinafter The Recidivists].‘ In discussing Thomas's case, the study referenced both Weirich’s “greed and evil” characterization and her failure to disclose the $750 payment to Angela Jackson: [This] was not the first time Weirich had been wamed about making inappropriate and inflammatory comments during trial, In a 2004 capital murder trial, Weirich utilized her opening statement to repeatedly call the co-defendants “greed and evil,” using that phrase a total of 21 times in the opening and closing arguments. The Tennessee Court of Criminal Appeals reminded Weirich that “[iJt is improper for the prosecutor to use epithets to characterize a defendant,” referring to her argument as “unseemly.” In yet another case, the Sixth Circuit Court of Appeals reversed a conviction in a death penalty case after Weirich failed to disclose that one of the main witnesses was paid for her cooperation in the companion federal case, Although Weirich claimed she did not know about the Payment, under the Constitution Weirich had a duty to discover and disclose this information prior to trial. Id, (footnotes omitted), * About District Attorney Amy Weirich, SHELBY COUNTY DISTRICT ATTORNEY, https://www.sedag.com/home/about-district-attorney-amy-weirich (last visited Jan. 23, 2018). “ hnttp://fairpunishment.org/new-report-on-rates-of-prosecutorial-misconduct/In August 2017, The New York Times Magazine published an account of Weirich’s withholding a key witness statement in the case of Noura Jackson, who was convicted of second- degree murder for the stabbing of her mother and served nine years in prison. Emily Bazelon, ‘She Was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Would Have Freed Her., N.Y. TIMES MAG. (Aug. 1, 2017) (hereinafter Bazelon]. Soon after the Tennessee Supreme Court overturned Jackson’s conviction, Weirich announced that she would retry the case. Id, She eventually agreed to recuse her office from the retrial, id, explaining in a statement, “Jennifer Jackson [Noura Jackson’s mother] and her family and friends deserve to have this matter proceed in the courts without the distraction of our office's involvement. I am ‘making this decision in the interest of justice for Jennifer Jackson.” Ashley Crockett and Caitlin Alexander, DA Amy Weirich Recuses Herself from New Noura Jackson Trial (Feb. 13, 2015) {hereinafter Crockett and Alexander].® Following the publication of the Noura Jackson story, Weirich readily admitted that she “Jook{ed] pretty corrupt.” DA Weirich Responds to Lengthy Article About Nowra Jackson Case, WMC Action News 5 (last visited Jan. 23, 2018),? Like the Harvard Law School study, the story in The New York Times Magazine also highlighted Thomas's ca In February, the United States Court of Appeals for the Sixth Circuit reversed the conviction of Andrew Thomas, who was prosecuted by Weirich in a capital-murder case in 2001. At Thomas's trial, Weirich asked the pivotal witness if she had “collected one red cent.” The witness said no, even though she received $750 from the F.B.I. for cooperating in @ previous case against Thomas. Weirich said she didn’t know about the * hutps://www.nytimes.corm/2017/08/0 /magazine/she-was-convicted-of-killing-her-mother- prosecutors-withheld-the-evidence-that-would-have-freed-her html http://sreg.com/2015/02/13/da-amy-weirich-releases-statement-about-recusing-herself-from- new-noura-jackson-trial/ “ http://www.wmcactionnews5.com/clip/1 |3546728/da-weirich-responds-to-lengthy-article-about- noura-jackson-casepayment, and federal prosecutors backed her up on that point. But the appeals court said that “any competent prosecutor would have carefully reviewed the case file.” Bazelon.® LEGAL STANDARD ‘The Tennessee Supreme Court has set forth a three-part framework governing motions to disqualify prosecutors and prosecutor offices in criminal cases. First, “the trial court must " determine whether there is an actual conflict of interes, which includes any circumstances in which an attorney cannot exercise his or her independent professional judgment free of ‘compromising interests and loyalties."" State v. Culbreath, 30 S.W.3d 309, 312 (Tenn. 2000) (quoting Tenn. R. Sup. Ct. 8, EC 5-1), Second, “iJf there is no actual conflict of interest, the court must nonetheless consider whether conduct has created an appearance of impropriety.” Id. at 312-13 (citing Tenn. R. Sup. Ct. 8, EC 9-1, 9-6). Third, “if disqualification is required under either theory, the trial court must also determine whether the conflict of interest or appearance of impropriety requires disqualification of the entire District Attomey General's office.” Jd. at 313 (Citing State v. Tare, 925 8.W.2d 548, 550 (Tenn, Crim. App. 1995)). “The determination of whether to disqualify the office of the District Attorney General in a criminal case rests within the discretion of the trial court.” Id ARGUMENT This Court should disqualify Weirich from involvement in any retrial of Thomas's case to avoid the actual conflict created by her personal and political interest in his case and the * Beyond Thomas and Noura Jackson, the media has also highlighted Weirich’s misconduct in several other cases. For example, after Weirich secured a 2005 murder conviction, a manila envelope was uncovered in the case files labeled with a sticky note that said something along the lines of “do not turn over to defense” and was signed with Weirich’s initials. Bazelon. The envelope later disappeared. Jd. When ordered to testify on this topic, Weitich denied knowing anything about the envelope. Id.appearance of impropriety created by her involvement in any retrial. Further, under the particular circumstances of this case, this Court should disqualify the entire Shelby County District Attorney General's Office because of the improbability that Weirich, the chief prosecutor, could effectively screen herself or avoid having any influence on the prosecutors of ‘Thomas's retrial. I, DISTRICT ATTORNEY GENERAL AMY WEIRICH’S DISQUALIFICATION IS REQUIRED BECAUSE SHE HAS AN ACTUAL CONFLICT OF INTEREST “{A}n actual conflict of interest includes any circumstances in which an attorney cannot exercise his or her independent professional judgment free of ‘compromising interests and loyalties.” State v. White, 114 $.W.3d 469, 476 (Tenn, 2003). The ABA standards provide, “A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.” ABA’s Standards for Criminal Justice Prosecution Function and Defense Function, Standard 3-1.3(f) (3d ed. 1993), American Jurisprudence also includes “the display of personal antagonism and animosity toward the accused” as an indication of conflict. 63C Am. Jur. 2d Prosecuting Attorneys § 24 (2017). Weirich should be disqualified from involvement in any retrial of Thomas’s case based (on her personal and political interest in convicting and sentencing Thomas to death again, which impair her ability to exercise “independent professional judgment free of ‘compromising interests and loyalties.” White, 114 8.W.3d at 476. Weirich publicly admitted that she and her office should be recused from the retrial of Noura Jackson, another case in which she was found to have withheld critical evidence from the defense. The same outcome should apply to Thomas's case. Weirich’s conduct in Thomas's case reveals a deep-seated bias against Thomas, and she should not be permitted to have any involvement in any retrial of Thomas,Furthermore, as an elected official, Weirich's job depends entirely on her ability to present favorably in the eyes of the public. The national spotlight on her “record of misconduct,” The Recidivists, has affected her reputation. Following publication of the story in The New York Times Magazine, for example, one Memphis resident posted on Twitter that it was “ABOUT DAMN TIME” that “the entire country finally g{ot] to read how corrupt (her] local DA... . is.”° Other Twitter users posted similar sentiments, including “Shame on you, ... Amy Weirich”"® and “Weirich deserves prison for her history of blatant misconduct.”'' The incentive to remedy her reputation is evident in Weirich’s response to the negative media attention. In the days after the Noura Jackson story appeared in The New York Times Magazine, Weirich posted two dozen tweets attempting to reveal the “TRUTH” that the article “ignore{d]” and using the hashtag “#ProCrimeNYTimes” to suggest that The New York Times was carrying out a pro-crime agenda through its article.'? One local publication described Weirich’s response as a “Twitter Meltdown” while the Intemet watched, Chris Davis, Shelby Co. D.A. Has Twitter Meltdown, Internet Watches, MEMPHIS FLYER (Aug. 4, 2017)."° ‘Thomas's case now presents an opportunity for Weirich to change the negative perception that the media and the public hold of her. If she succeeds in securing a conviction ° @wendi_c_thomas, TWITTER (Aug. 1, 2017, 2:12 PM), https://twitter.com/wendi_c_thomas/ status/892493 174698070016. '° @alexonarainyday, TwiTTER (Aug. 1, 2017, 9:30 AM), https://twitter.com/alexonarainyday/ status/892422343129280512. " @crlamke, TwrrTer (Aug. 1, 2017, 892378419035598848, }? @ShelbyCountyDA, TwItTER (Aug. 2, 2017, 8:08 AM — Aug 3, 1:20 PM), https://twitter.com/ ShelbyCountyDA. "3 hutps://www.memphisflyer.com/Flyonthe WallBlog/archives/2017/08/04/shelby-co-da-has- twitter-meltdown-intemnet-watches (6 AM), https://twitter.com/crlamke/status/ 10and death sentence in Thomas's retrial, she could redeem herself in the eyes of the public and reaffirm her image as being “tough on crime.” It would instill confidence in her ability “to hold the guilty accountable and to protect the innocent in every case”—her reason for becoming a prosecutor—and revive her chances at reelection. See Katie Fretland, Shelby County DA Amy Weirich Ranked Highest in Tennessee for Misconduct, COMMERCIAL APPEAL (Jul. 13, 2017).!* This opportunity would be difficult to tum down for any prosecutor under the scrutiny that Weirich is facing. It creates a personal and political conflict that impairs Weirich’s ability to exercise independent judgment in camying out her role as 2 prosecutor, warranting her disqualification from any retrial of Thomas's case. Ul. DISTRICT ATTORNEY GENERAL AMY WEIRICH’S DISQUALIFICATION IS FURTHER REQUIRED BASED ON THE APPEARANCE OF IMPROPRIETY CREATED BY HER INVOLVEMENT IN ANY RETRIAL OF THOMAS’S CASE. An appearance of impropriety exists when “an ordinary knowledgeable citizen acquainted with the facts would conclude that the... . representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.” State v. White, 114 S.W,3d 469, 477 (Tenn. 2003). “The appearance of impropriety must be real, reflect an objective public perception rather than the subjective and anxious perceptions of the litigants, and reflect the views of a layperson with a knowledge of all the facts.” State v. Askew, No. M201401400CCAR3CD, 2015 WL 9489549, at *5 (Tenn, Crim, App. Dec. 29, 2015). For the same reasons that Weirich’s personal and political interest in Thomas's case should disqualify her from involvement in any retrial, Weirich’s involvement would create an appearance of impropriety that serves as an independent basis for her disqualification. Even if * http://www .commercialappeal.com/story/news/courts/2017/07/13/ethics-harvard-law-school- tennessee-prosecutor-amy-weirich/475649001/ athis Court finds that Weirich does not have an actual personal or political interest in securing another conviction and death sentence for Thomas, it would certainly appear that way to an ordinary citizen with knowledge of the facts. ‘An appearance of impropriety further exists because an ordinary citizen familiar with Thomas’s case would readily conclude that Weirich engaged in prosecutorial misconduct in Thomas's original trial, making her involvement in any retrial inappropriate and a disservice to the public interest, Weirich's conduct in Thomas's original trial was improper in two significant ways: First, she repeatedly characterized Thomas and his codefendant as the embodiment of “greed and evil,” improperly appealing to the bias and passion of the jury. Second, stipulations by the State in this case necessarily lead members of the general public to conclude that Weirich knowingly failed to correct the perjured testimony of her key witness, Angela Jackson, in clear disregard of Thomas’s constitutional rights. Thus, Weirich’s involvement in Thomas's retrial creates a substantial appearance of impropriety and disservice to the public interest. First, the inflammatory theme of Weirich’s opening and closing arguments during Thomas's original trial was “greed and evil.” Tennessee courts have consistently held that it is improper for a prosecutor to describe a defendant as “evil” in an argument to a jury. For instance, courts have found it improper to characterize a defendant as “evil personified” and “pure evil,” State v, Huskey, No. E1999-00438-CCA-R3CD, 2002 WL 1400059, at *133 (Tenn. Crim, App. June 28, 2002), as “the evil one,” State v. Cauthern, 967 $.W.2d 726, 737 (Tenn. 1998), and as an “evil, despicable human being(],” State v. Griffis, 964 S.W.2d 577, 599 (Tenn. Crim, App. 1997). Such characterizations improperly “appeall] to the bias and passion of the jury,” Cauthern, 967 8.W.2d at 737, and disregard the principle that “the state must refrain from argument designed to inflame the jury,” State v, Bond, No. W2005-01392-CCA-R3CD, 2006 12WL 2689688, at *8 (Tenn. Crim. App. Sept. 20, 2006) (finding such characterizations improper in a case involving Thomas's codefendant, Anthony Bond). In Thomas’s case, Weirich’s characterizations were particularly inflammatory because she did not merely describe Thomas and his codefendant as greedy and evil acting, Rather, she referred to them as “greed and evil”: “[GJreed and evil took the form of the defendants before you this aftemoon.” State Trial Tr. 379:5-6, “Greed and evil got the bag of money ....” Id. at 380: “[G)reed and evil really didn’t care that day whether [James Day] lived or died.” Id. at 1574:24-25, “But that wasn’t good enough for greed and evil.” /d, at 1575:8. Indeed, she repeatedly told the jury that it didn’t matter whether they wanted Thomas to be “greed” and his codefendant to be “evil”—or the other way around. See id. at 1583:22-24 (“Andrew Thomas and his partner—greed or evil, whichever you want to call him ....”); id. at 1596:20-22 (“[G]reed or evil—whatever you want to call him."). On appeal, the Tennessee Court of Criminal Appeals found Weirich's repeated use of “greed and evil” to be “improper” and “unseemly.” State v. Thomas, No. W2001-02701-CCA- R3DD, 2004 WL 370297, at *46 (Tenn, Crim. App. Feb. 27, 2004), aff'd, 158 §,W.3d 361 (Tenn. 2005). The court admonished that “[iJt is improper for the prosecutor to use epithets to characterize a defendant.” Jd. The court’s finding, coupled with a general appreciation of the prosecutor's role, allows an ordinary citizen to easily conclude that Weirich’s inflammatory characterizations were improper and reveal strong feelings of disdain and animosity toward Thomas. See Griffis, 964 S.W.2d at 599 (acknowledging the feelings of evil that the prosecutor “harbored” for the defendants), Second, Weirich failed to correct Angela Jackson’s false testimony that she had not received payment in exchange for het testimony against Thomas. The Tennessee Attomey 13General admitted that Weirich had “constructive knowledge” of the $750 payment. Appellee’s Br. 10, Thomas ». Carpenter, No. 15-5399, ECF No. 40, Page 21 (6th Cir. 2016); see Joint Stipulation 9; Thomas v. Westbrooks, 849 F.3d at 667. Before the district court, the State conceded the knowledge prong of a false testimony claim—rendering ‘Thomas’ request for an evidentiary hearing on the matter moot, and conclusively establishing this fact, See Respondent's Br. Clarifying Issues, Thomas v. Carpenter, No. 2:12-0v-02333 (WD. Tenn) (Feb, 3, 2015), ECF No. 95, Page ID 12043 (“Accordingly, there is no remaining factual dispute “So state prosecutor's knowledge regarding the substance of the testimony in question.”). Thus, Weirich’s knowledge of the secret $750 payment for both the Brady claim and false testimony claim has been conceded in this case, and the Court must accept this concession as established fact because the State, under the doctrine of equitable estoppel, cannot now take the Contradictory position that Weirich lacked knowledge. See Williams v. Buraczynski, No E20160160SCOAR3CV, 2017 WL 3078173, at *5 (Tenn. Ct. App. July 19, 2017) (“In those instances where... the party is attempting to gain an unfair advantage by maintaining ‘consistent legal positions, the doctrine of equitable estoppel should be applied”). Given this concession, one may conclude that Weirich presumably allowed Jackson to Perjure herself forthe same reason that she neglected to tun over evidence ofthe $750 payment ‘o Thomas's defense counsel: because Jackson was her key witness, and evidence that she had ‘eceived payment in exchange for her testimony could undermine her credibility before a jury and risk Weirich’s chances of securing a conviction, “The Supreme Court has long held that a prosecutor violates a criminal defendant's due Provess tights when she knowingly allows perjured testimony to be introduced without correction.” Thomas v. Westbrooks, 849 F.3d at 666. As discussed above, the Tennessee 4Attomey General conceded in prior court proceedings that Weirich had constructive knowledge of the $750 payment. supra. In light of this concession Weirich’s failure to correct Jackson’s false testimony regarding the $750 payment creates at least an appearance of impropriety. ‘Though the Sixth Circuit had no need to decide the merits of Thomas's prosecutorial misconduct claim, it nonetheless took the opportunity to speak critically of Weirich, going so far as to suggest that if it did decide the issue, it would find that Weirich had knowingly failed to correct Angela Jackson’s perjured testimon; Given the importance of Jackson’s testimony to the State's case and the State’s repeated questioning about her purportedly high-minded reasons for testifying, it seems that any competent prosecutor would have carefully reviewed the case file for evidence that Jackson might have been testifying for some less-than-altruistic reason in order to guard against the risk of impeachment. This seems especially true in a case like this one where the witness had already testified against the same defendant in a related federal proceeding. Had the prosecutor done so, the parties agree that she would have come across a document indicating that Jackson had received a significant payment from the FBI after the conclusion of the federal trial. Thus, were we to presume that the State’s prosecutor ‘engaged in diligent preparation for trial, we would conclude that she knew of the payment at trial. Id. (emphasis added) Particularly in light of the Sixth Circuit's published criticism, an ordinary citizen familiar with Thomas's case would reach the same conclusion that Weirich engaged in prosecutorial misconduct by failing to correct Angela Jackson’s false testimony. Weitich’s public image thus evinces a disregard for Thomas's constitutional rights and her willingness to compromise her professional obligations to secure Thomas’s conviction, For this reason, along with Weirich’s repeated characterization of Thomas and his codefendant as the embodiment of “greed and evil,” Weirich’s involvement in any retrial of Thomas's case would create an appearance of impropriety warranting her disqualification. 15IIL, THE CONFLICT OF INTEREST AND APPEARANCE OF IMPROPRIETY REQUIRE DISQUALIFICATION OF THE ENTIRE DISTRICT ATTORNEY GENERAL'S OFFICE In any case requiring the disqualification of one prosecutor based on a conflict of interest oF appearance of impropriety, “the trial court must also determine whether the conflict of interest ©F appearance of impropriety requires disqualification of the entire District Attorney General’s office.” Culbreath, 30 $.W.3d at 313 (citing Tate, 925 §,W.2d at $50). Courts consider the “particular circumstances” of the ease when resolving disqualification issues, See Tate, 925 S.W.2d at 556. Generally, disqualification of the entire District Attomey General’s office based on the disqualification of one prosecutor is not required if that prosecutor “does not disclose confidences or other Participate in the prosecution,” State v, Ownby, No. M200701367CCAR3CD, 2009 WL 112582, at *9 (Tenn. Crim. App. Jan. 14, 2009), though “there is a presumption of shared confidences” that would need to be overcome. Tate, 925 S.W.2d at $58. Other courts have held that “Where the conflict of interest lies with the chief Prosecutor (i.e, the District Attorney), the prosecution is barred and the conflict cannot be resolved by delegating the matter to an assistant DA.” Com. v: Brown, 141 A.3d 491, 497 (Pa, Sup. Ct. 2016), ‘The particular circumstances of Thomas’s case warrant the disqualification of the entire Shelby County District Attorey General's Office. As the elected District Attomey General dealing with a nationally profiled death penalty case, Weirich is not simply one prosecutor who can effectively be screened from one case. As the chief prosecutor in the Shelby County District Attomey General’s Office, Weirich oversees the activities of the entire office and has the ultimate authority to decide whether and how to retry Thomas’s case. Even if Weitich is Screened from the case and a different prosecutor takes charge, it would be difficult to eliminate her influence entirely, Every prosecutor in the office reports to Weirich and has a personal and 16professional interest in carrying out her prosecutorial philosophy and avoiding conflict with her. Delegating Thomas's retrial to another prosecutor in the Shelby County District Attomey General's Office would not ensure Thomas a prosecution that is free of Weirich’s involvement, ‘The recent media attention on Thomas's case further amplifies the need to disqualify the entire Shelby County District Attorey General’s Office. Because Thomas's case has appeared in several articles criticizing Weirich's prosecutorial miseonduct—and because the Shelby County District Attomey General's Office now has an opportunity to retry his case—it is highly improbable that Thomas's case has not been a subject of discussion within the office and highly improbable that Weirich has shielded herself from such discussions. In these particular circumstances, the risk is high—and it is presumed—that Weirich has already “disclose[d] confidences” about the ease to other prosecutors in the office. Owndy, 2009 WL 112582, at *9. To “preserve[] the integrity of the criminal justice system,” “the more cautious approach is {therefore} to disqualify the office and appoint an entirely new prosecution team.” Tate, 925 8.W.2d at 558. As in the Noura Jackson case, Thomas's retrial should be able to proceed “without the distraction of [Weirich’s] office’s involvement.” Crockett and Alexander. CONCLUSION For the reasons stated above, this Court should grant Andrew Thomas's motion to disqualify the Shelby County District Attorney General's Office from involvement in any retrial of his case. 7Respectfully submitted, Bee Deudlin 4 Lege! Ned 0d gir on Kevin C. Wallace (admitted pro hac vice) Elizabeth A. Cate (admitted pro hac vice) Mollie R. Richardson (admitted pro hac vice) WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166 Tel: (212) 294-6700 kwallace@winston.com ecate@winston.com mrichardson@winston.com eh slo Robert L. Hutton GLANKLER BROWN, PLLC 6000 Poplar Avenue Suite 400 Memphis, TN 38119 Tel: (901) 525-1322 rhutton@glankler.com BPR: 015496 Counsel for Andrew L. Thomas 18CERTIFICATE OF SERVICE | hereby certify that on January 24, 2017, 1 served the foregoing MOTION TO DISQUALIFY THE SHELBY COUNTY DISTRICT ATTORNEY GENERAL’S OFFICE FROM INVOLVEMENT IN ANY RETRIAL OF ANDREW THOMAS via hand delivery, on counsel of record at the following addresses: Amy Weirich Shelby County District Attomey General 201 Poplar Avenue 3rd Floor Memphis, TN 38103 Telephone: (901) 222-1300 Facsimile: (901) 222-797] se Robert L. Hutton GLANKLER BROWN, PLLC 6000 Poplar Avenue Suite 400 Memphis, TN 38119 Tel: (901) 525-1322 thutton@glankler.com BPR: 015496 Counsel for Andrew L. Thomas 1836-4879-0716. 0.1 19Exhibit AUNREDACTED 247 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION UNITED STATES OF AMERICA, Plaintife, NO. 03-2416-sEM EVIDENTIARY HEARING BEFORE THE HONORABLE CHIEF JUDGE JON PHIPPS MCCALIA ER ONORABLE CHIEF JUDGE JON PHIPPS MCCALLA BRENDA PARKER OFFICIAL REPORTER SUITE 1142 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 3810310 1 12 14 15 16 17 18 19 20 21 22 23 24 25 DIRECT - SCOTT SANDERS subjected to being arrested during her interview or before her interview? A. Tim trying to recall, We -- I don't think so. 2. Po you know whether Ms. Jackson was ever paid anything in the form of a reward or anything else in connection with her testimony? aA. Yes, she was, After the conclusion of the case, after ‘he sentencings, I believe she was given the sum of $750. Q. And who provided that money? A. The FBI funded the payment, and I believe I paid her. a. Thank you, sir, Be you recall the robbery of a wholesale jewelry store at 3385 Summer in June of 19932 A. No, I was not involved in that Anvestigation. 1 dontt doubt it happened. Do you have a name? Q. Po you know a Gary Smallwood or Sharon Joiner? A. No, I do not. MR. ARVIN: I object to the relevance unless there's some -- something I'm missing, THE COURT: Objection sustained at this point, Hf has not been demonstrated any relevance in this area. MR. O'REILLY: Thank you, Your Honor, BY MR. O'REILLY. Q. Mr. Sanders, yesterday you were present during theIN THE CRIMINAL COURT FOR SHELBY COUNTY, TENNESSEE THIRTIETH JUDICIAL DISTRICT, AT MEMPHIS. DIVISION IX STATE OF TENNESSEE ) ) Docket No. 00-03095 fet ) pica Saeiearsy Clark ANDREW THOMAS ) Re ee Dc: STATE’S RESPONSE TO DEFENDANT’S MOTION TO DISQUALIFY This matter came to be heard upon defendant, Andrew Thomas’ Motion to Disqualify the Shelby County District Attorney General’s Office from involvement in the retrial of his case. In Response the State contends defendant has failed to demonstrate an actual conflict of interest on the part of Shelby County District Attorney General Amy Weirich and further contends there is no appearance of impropriety requiring the disqualification of General Weirich. In the event, the court determines an actual conflict of interest or an appearance of impropriety exists requiring the disqualification of General Weirich, the State further submits defendant has failed to demonstrate such conflict would require the disqualification of the Shelby County District Attorney General’s Office as a whole. I. Procedural and Historical Background The State submits the facts presented in defendant's petition are cherry picked and do not give an accurate portrayal of the events surrounding the reversal of Thomas’ state court conviction, The state has endeavored to provide the court with a complete time line of the events leading up to the payment that was provided to the government witness at issue in the Sixth Circuit's opinion reversing Thomas’ state court conviction and has provided unedited and dispassionate documentary evidence in support of its assertions. ‘The state contends the type of documentation provided by Thomas in support of his petition is not the type ordinarily relied upon by courts in that itis neither factually accurate, complete or from a reliable source.