The Tennessee District Attorneys General Conference (TNDAGC) filed an amicus brief last week, which was labeled illegal in a Tuesday response by the Tennessee Attorney General’s Office, supporting the efforts of Shelby County District Attorney Steve Mulroy to free a death row inmate who was convicted of two murders over 40 years ago.
The conference filed the amicus brief in a lawsuit brought by death row inmate Larry McKay against Tennessee over a law passed by the General Assembly in 2023, which expands the number of capital cases that the state’s attorney general must directly oversee.
McKay, who seeks his case reexamined due to what he claims is new evidence, saw a Tennessee court rule in favor of his effort to disqualify the attorney general, but the state quickly appealed the decision. McKay wants to prevent Attorney General Jonathan Skrmetti from reviewing his capital offense and instead wants Mulroy’s office to handle any future developments.
The TNDAGC argued in its brief in favor of McKay’s arguments that the General Assembly violated the Tennessee Constitution, removed the ability for justice to consider the “conscience of the community” via its elected district attorney, cuts the local district attorney’s ability to employ prosecutorial discretion, and directly affects Mulroy (pictured above, left) because his office will be called to represent the state if a new trial is warranted.
However, the TNDAGC’s decision to file the brief using outside legal counsel is itself illegal, according to a response by the Tennessee Attorney General.
After noting the conference is “purportedly represented by outside counsel,” the filing declared, “the Attorney General is the only legal counsel authorized to represent the Conference in this appellate litigation.”
The filing also said that Skrmetti (pictured above, right) did not authorize the representation to be delegated.
According to the filing, “the Conference’s unlawfully filed amicus motion and brief should be stricken.”
Citing the TNDAGC’s existence as a state agency, the response by Skrmetti’s office further explains there are typically “only two situations where the Attorney General does not represent a state entity,” primarily when an attorney general chooses to “exercise discretion to delegate self-representation back to a state entity,” and when the attorney general and governor both determine additional attorneys are necessary for a restricted purpose.
The controversy surrounding whether Mulroy should be allowed to oversee McKay’s attempt at release comes after the district attorney faced criticism last year from Tennessee State Senator Brent Taylor (R-Memphis), who questioned the agreements between Mulroy’s office and a handful of restorative justice organizations that openly seek the elimination of cash bail.
A recent report published by Mulroy’s office revealed the district attorney spent much of his first year focused on improving diversity and fairness within his office, even as Memphis faced a surge in violent and property crimes.
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Tom Pappert is the lead reporter for The Tennessee Star, and also reports for The Georgia Star News, The Virginia Star, and the Arizona Sun Times. Follow Tom on X/Twitter. Email tips to [email protected].
Photo “Steve Mulroy” by Steve Mulroy.
