MEMPHIS, Tenn — Republican lawmakers violated the Tennessee Constitution when they passed a law this spring giving the state attorney general more authority to argue certain death penalty cases, according to a judge's ruling Monday.
The new law allows the attorney general to step in and take over post-conviction capital cases. But Shelby County Judge Paula Skahan said that's unconstitutional because it removes the power of the locally elected district attorney to argue them. The state attorney general is an appointed position, not elected.
The office of Attorney General Jonathan Skrmetti said it will appeal Monday's decision, which affects death row inmate Larry McKay's motion for another trial based on new evidence.
Some attorneys and Democratic lawmakers say the new law targeted progressive district attorneys who have expressed reluctance to pursue the death penalty. Attorneys for inmates fear the state could use the law to argue against considering DNA evidence and intellectual disabilities.
The law, passed in April, involves proceedings that are outside the traditional appeals process in death penalty cases. Those include going before a trial court to present new evidence, request DNA testing, or argue that a defendant has an intellectual disability. The attorney general oversees traditional appeals. The judge said Monday that in trial court matters, the state Constitution designates the district attorney as a state representative
If it stands, the ruling would affect other cases in Tennessee where death row inmates are challenging their convictions outside the appeals process.
McKay's lawyer, Robert Hutton, filed the motion to disqualify Skrmetti from intervening. Hutton said the ruling "strikes down an unconstitutional law," which was the result of what he called "overreach" by the state Legislature.
Under the law passed by the GOP-led Tennessee Legislature and signed by Republican Gov. Bill Lee, Skrmetti would have replaced Shelby County District Attorney Steven Mulroy in McKay's case.
Mulroy supported McKay's motion, which argued that the new law hinders the district attorney's ability to fulfill his responsibilities under the state Constitution. The attorney general is picked by Tennessee's Supreme Court.
The judge withheld a ruling on whether the law violates the rights of voters who elect local district attorneys across the state.
Opponents of the law have called it the latest example of attempts by GOP governors and Legislatures in several states to take on locally elected officials who have deprioritized enforcement of laws they deem unnecessary.
In recent years, other district attorneys around the country have refused to prosecute cases related to some Republican-passed state laws, from voting restrictions to limits on protesting. In Georgia, Republican lawmakers passed a bill in March establishing a commission to discipline and remove prosecutors who they believe aren't sufficiently fighting crime.
Republican state Sen. Brent Taylor, the bill's sponsor, has said that district attorneys could be unfamiliar with the sometimes decades-old death penalty cases under appeal. That means the post-conviction challenges "lose their adversarial characteristic that ensures justice," Taylor said.
Taylor also said victims' families would be better off communicating with just the attorney general's office.
The attorney general's office said it respectfully disagrees with the court's decision.
"Ensuring the adversarial system remains fully engaged over the life of a capital case is our obligation to the victims' families because no family should be deprived of justice" said Elizabeth Lane Johnson, a spokesperson for the attorney general's office, in a statement released after the ruling.
Mulroy in Memphis and Davidson County District Attorney Glenn Funk in Nashville both have said that they oppose the death penalty. State Sen. Raumesh Akbari, the Democratic minority leader, has said the law shouldn't have been changed because of possible dislike for the "policies of our more liberal district attorneys."
Lawyers for the attorney general's office argued that the law violated no part of the Tennessee Constitution and that McKay has not shown how he was negatively affected in ways that are not "conjectural" or "hypothetical." The attorney general's office also denied that the law curtails voters' rights.
McKay was convicted of two murders during a robbery in Memphis and sentenced to death 40 years ago. McKay's motion claims new scientific methods have revealed that the firearms evidence presented at trial was unreliable.
His codefendant in the case, Michael Sample, was recently released from death row after he was found to be intellectually disabled.
