Judge: DA’s office can stay on capital case retrial
A special judge has denied a motion to disqualify the Shelby County District Attorney General’s office in the retrial of Andrew Thomas, who was sentenced to death in 2001 for the murder of James Day.
Day was shot in the back of the head at a Walgreen’s store on Summer Avenue in 1997 while working as a courier for Loomis, Fargo and Co. He died more 17 months later.
Thomas had already been sentenced in federal court to life in prison after an armed robbery conviction.
He was granted a retrial on the murder after it was learned his exgirlfriend, Angela Jackson, a key defense witness in both trials, had been paid $750 by a member of the Safe Streets Task Force. The multiagency group of federal and state law enforcement officers investigated and assisted in the federal trial.
The payment was made after the federal trial, but before Day died.
Special Judge William Acree noted in his order the testimony in the June 29 hearing on the motion from Tony Arvin, an assistant United States attorney.
Arvin said a month after the federal trial, he was contacted by Deputy
U.S . Marshal Scott Sanders, who asked him to authorize the payment to Jackson.
The payment was intended to compensate her for her time and assistance in the case. Arvin said he approved the payment and made no notation or record of the conversation or payment.
District Attorney General Amy Weirch was then an assistant district attorney and tried Thomas’ case with now Criminal Court Judge Jennifer Nichols. Weirich has said she did not know about the payment.
Weirich also testified in the June hearing that she had never heard of a lay witness receiving payment for testimony and had no reason to inquire about it.
Jackson was asked about a payment during cross-examination and denied it, Weirich said.
However, Bennett Gershman, a law professor at Pace University’s Elisabeth Haub School of Law and an expert witness for the defense, opined that Weirich should have known of the payment by properly preparing the case for trial.
In addition, Gershman asked if Weirch was prosecuting Thomas for legitimate, personal or political reasons.
In his order, Acree stated that no one in the DA’s office knew about the payment to Jackson until 2011 and that there is “no actual conflict of interest” by the DA or the staff that would require disqualification in Thomas’ retrial.
“I’m grateful for Judge Acree’s findings, and now look forward to once again asking a jury to hold the defendant accountable for the murder and robbery of James Day 21 years ago,” Weirich said in a statement. “Mr. Day’s family has been through enough.”
This ruling is not a setback for the defense, said attorney Claiborne Ferguson, who is one of a team of lawyers representing Thomas.
“It doesn’t impact the way we handle the case. It’s just going to be nice to finally get the case moving forward and get some discovery from the state,” Ferguson said. “We’re hoping to get complete discovery this time and that we don’t end up having to try this case for a third time.”
The retrial was scheduled for March 2019, but Ferguson now expects it to be pushed back to late next summer.
Defense attorneys had also asked Criminal Court Judge W. Mark Ward to disqualify himself from the retrial, a motion he denied. Ward has made legal contributions to Nichols’ campaign to be elected to the bench.
But Ward did ask the Tennessee Administrative Office of the Courts to provide a judge to handle the motion to disqualify Weirich’s office.