In the third edition of the TBA Criminal Justice Section’s survey of candidates in contested district attorney general races across the state, we hear from candidates in Shelby County: District Attorney Amy Weirich (incumbent) and challenger Steve Mulroy, a criminal defense lawyer and professor at the University of Memphis Cecil C. Humphreys School of Law. We asked them seven questions; the participants' respective responses are below. Voters will decide between Weirich and Mulroy in the County General Election on Thursday, Aug. 4.

The homicide rate nationwide has increased dramatically in recent years, particularly between 2019-2010. What is your plan for addressing this crisis in Shelby County?

WEIRICH: The primary function of this office in response to violent crime, particularly homicides, is to hold offenders accountable to the fullest extent of the law while also providing assistance and support to the victims and their families. To accomplish these things, we have senior prosecutors and victim witness coordinators specially trained to handle homicides. They respond to law enforcement 24 hours a day, seven days a week advising during the investigation stage and approving charges. Our new vertical model allows us to know immediately or at the latest when charges are filed which ADA will be handling the case. This—as well as the staff I have added to our Victim-Witness Unit—allows us to reach out immediately to the family and begin working with them. 

I have implemented several changes and programs to remove low level offenders and cases from traditional prosecution and give us more time and resources for homicides and other violent crimes. A few examples of these programs: Community Justice (restorative justice); Community Prosecution (placing senior ADAs in police precincts to work with communities); we don’t prosecute Driving on Revoked License cases if the sole reason for the revocation is monetary; and we give anyone charged with prostitution a chance to attend a class in exchange for dismissal and expungement. 

Too many families who have lost loved ones to homicide never know the closure of an arrest and prosecution. Witnesses refuse to share information with law enforcement because of perceived or real fear of retaliation. To combat this, we developed 901 WRAP (Witness Relocation Assistance Program). We have trained all law enforcement in Shelby County and have three of our investigators on call 24 hours a day, seven days a week to move witnesses to safe locations moments after a murder. If more permanent housing needs to be found, we assist with that as well. If more citizens feel comfortable sharing information with law enforcement, more arrests can be made and more offenders prosecuted.

Finally, I created a Crime Strategies and Narcotics Prosecution Unit—for the purpose of identifying crime drivers in Shelby County and making sure their cases get swift and certain response from this office. This unit also oversees our Focused Deterrence program—an evidence-based strategy connecting violent offenders on probation or parole with community services and resources to decrease the likelihood of them re-offending.

MULROY: In Shelby County, the rate has been rising steadily since the current DA took over in 2011, higher than the national average—both before and after the pandemic, and before and after the General Assembly’s loosening of restrictions on guns in cars and permitless carry. My plan is fourfold. 

First, refocus on violent crime. We waste too much time on petty prosecutions—marijuana, fines and fees, protesters, people trying to vote—and not enough on things that matter, like homicides, carjackings, domestic violence. 

Second, invest more heavily in programs like Youth Villages’ Memphis Allies program. This program uses people who’ve been through the system themselves to recruit recidivist risks to a year-long program of training, counseling, housing assistance, etc., in small groups with teams of clinicians and facilitators. The aim is to reduce violent recidivism by providing at-risk ex-offenders with realistic alternatives to life on the street. It’s modeled on programs which reduced gun homicides in Chicago as well as Stockton and Oakland, Calif. It is more robust and personalized than what passes for “focused deterrence” currently. 

Third, hire more cops, pay them better for recruitment, train them better. The data shows that more police mean less crime. We need to train them on de-escalation, implicit bias and search/seizure so that we can reduce excessive force, racial profiling and privacy violations, respectively. 

Fourth, reform the system generally to increase the reality and perception of fairness. Juvenile court reform, reducing racial disparities generally, fixing our broken bail system, ending opposition to post-conviction DNA testing, establishing a Conviction Review Unit, etc. This can restore public confidence in the fairness of the system, which the Crime Commission’s own polling data shows is lacking, especially in the Black community. This will incentivize the community to cooperate with law enforcement in a way they haven’t been—providing tips, reporting crimes, serving as witnesses. This is essential if we are to bend the curve on violent crime.

Do (or will) you have an “open file” policy regarding discovery? Why or why not? If you (will) have an open file policy, does (would) that also apply to law enforcement agencies in your jurisdiction? Are there exceptions to this?

WEIRICH: We have an open file discovery policy and it applies to law enforcement. They must certify that they have provided us with everything in their possession when they submit a case for indictment. The only “exclusions” to the policy is information that by law we cannot disclose—some identifying information, Department of Children’s Services information, etc.

MULROY: I favor an open file policy. It would apply to law enforcement agencies, to the extent I would have authority. Obviously, we would have to make exceptions to protect ongoing investigations, protect confidential informants, protect witnesses from retaliation, etc. In many cases, this could be handled case-by-case through redactions. 

The incumbent claims an open file policy. But there are many examples of exculpatory evidence being withheld, to the point that the defense bar mistrusts assertions that no Brady material exists. The office also does not do open file “downstairs” in General Sessions Court. Ditto Juvenile Court regarding transfer hearings. The latter was cited by the independent federal court monitor as one part of the “toxic combination for African American youth” that plagued the DA’s office handling of adult transfer. 

Do you believe bail bond reform is necessary? Are you in favor of, or against, abolishing cash bail in Shelby County? Why/why not?

WEIRICH: I believe bail bond reform is necessary; however, eliminating cash bail is not the answer. Without cash bail we would have no way to protect the public and ensure the offender returns to court. At the same time, low level offenders charged with low level offenses shouldn’t be detained pre-trial simply because they don’t have adequate financial means. Your bond should reflect the current crime and your past criminal history. Currently, ROR bonds make up the largest number of bonds set by commissioners. Our office does not participate in the setting of bonds. We do, however, review new cases daily and make motions to increase bond if appropriate as well as work to lower bonds if needed. Again, a bond should reflect the offender’s current alleged crime and the offender’s past criminal history. Unfortunately, that result is not always achieved. We see too many cases in which a violent and/or repeat offender is given too low a bond and re-offends. Each time you re-offend while on bond, your bond should be higher. That is not happening with the current system. I believe we need a system in which bail is set by a judge after a hearing that includes our office, attorney for the defendant and the victim.  

MULROY: Bail reform is necessary. Not just providing individualized bail hearings before a regular judge which take into account the individual’s ability to pay, which is required by law but which is not happening currently. But also, to increase pretrial release on one’s own recognizance. 

Too many people languish for too long behind 201 Poplar’s bars for no other reason than they can’t afford cash bail. Twenty-five percent are there for more than 500 days; many are there for years. The longer one is there, the more likely they are to be Black. Many are ultimately released without a conviction, but by then it’s too late, for we’ve permanently disrupted their lives and damaged the communities. 

Putting aside the most serious violent offenses, we should have a presumption of pretrial release absent specific evidence that that defendant was a flight risk or danger to the community. 

Are you in favor of, or against, imposing a trial “penalty” or tax” on defendants who proceed to trial and are convicted?

WEIRICH: I am not in favor of a trial penalty. No one should be intentionally penalized for exercising their constitutional rights. It does happen, however, that a judge will sentence an offender to more time than the offender would have received had the offender accepted the state’s offer.

MULROY: I oppose the trial penalty. Obviously, inherent in a plea bargain is the idea that a sentence reduction is contingent on accepting the plea. But too often, when the defendant rejects the plea offer, the prosecution retaliates by throwing the book at them—not just seeking the original, higher sentence, but going even higher in retaliation. 

The recent, infamous Pam Moses case for improper voting is an example. (The case should not have been brought in the first place but put that aside.) The incumbent’s office offered Moses a misdemeanor time served deal. When she exercised her right to go to trial, rather than simply proceeding on a misdemeanor charge of 10 to 11 months, they brought felony charges which under the Guidelines were guaranteed to result in at least three years, and ultimately became six years. 

Will you (or do you) have a policy regarding the disclosure of exculpatory evidence? If so, do you think that policy applies to impeachment information? Mitigation? Do you think exculpatory, or any other evidence should be turned over in General Sessions court?

WEIRICH: Yes—the disclosure of exculpatory, impeachment and mitigation evidence are part of our open file discovery policy. It should be and is turned over as soon as we learn about it. Since 1990, 84% of the cases reversed in Shelby County have been reversed because of judicial or juror error. The next largest category is ineffective assistance of counsel—defense attorney error—at 12%. Prosecutorial error has resulted in .04% of the reversals. No prosecutor in this office has ever withheld evidence. Under the law, we are deemed to have everything in our possession that law enforcement has—even when we don’t have it. My opponent references a study by a law student who cited three cases handled before I became DA. The research for the study consists of news articles and accusations from convicted murderers—not case files or evidence—to support the claim that I withheld evidence. I have tried 130 jury trials and personally handled thousands of cases. In only one of those did my actions result in a reversal—and that was for something I said in closing argument.

MULROY: Yes, a robust policy for disclosure of exculpatory evidence. Consistent with Brady and Giglio, this would include impeachment and exculpatory information. The policy should apply both in General Sessions and in Juvenile Court regarding adult transfer. 

Will Assistant District Attorneys General in the office be free to negotiate their own cases, or will they be subject to policies that dictate limits on their plea offers? If so, what are those limits or what will those limits be?

WEIRICH: Our ADAs are free to negotiate cases. They also can rely on supervisors—including me—to discuss how to handle a case. We don’t pursue prosecution unless and until we can prove every element beyond a reasonable doubt given all possible defenses. And there are some policies in place for certain cases—for several violent crimes, supervisors must approve any reduction or dismissal. For cases at the other end of the spectrum, we have alternatives to prosecution and dismissal policies in place to get those cases off the dockets. I hire outstanding attorneys and trust their judgment. Our vertical team chiefs do an incredible job daily handling their caseload while training those they supervise. Our new vertical model has also resulted in exposing new ADAs to all aspects of the office—general sessions, grand jury and criminal court.

MULROY: I favor allowing ADAs to use their professional judgment and make case by case determinations with broad discretion, both for morale reasons and because such flexibility is necessary given the infinite variety of circumstances out there. As for limits—I would issue guidelines regarding pretrial detention as described above, and would require high-level approval of petitions for adult transfer. 

Do you believe there are racial and ethnic disparities within the criminal justice system? If so, what can the District Attorney General's Office do to address those disparities?

WEIRICH: There are racial and ethnic disparities within the criminal justice system. Too many communities of color are impacted by crime in Shelby County. More can certainly be done, starting at the community level, to prevent crime and intervene in the lives of low-level offenders before the conduct escalates. Some of the things I have done since becoming DA:

• Community Prosecution—senior level ADAs working in the community along with Juvenile Court probation officers
• Community Justice—Restorative Justice model using citizens who live in the community where the crime occurred to decide punishment.
• I’ve grown the number of African American and Hispanic members of the staff—30% of our staff are African American or Hispanic; 21% of our ADAs are African American or Hispanic. We also have more females in supervisory roles than ever.
• We no longer prosecute Driving While License Revoked cases if the reason for revocation is solely financial—over 40,000 cases were dismissed the first year of the policy. 
• I helped start Mental Health Court and Veteran’s Court
• I host Restoration Saturday—events that provide help with jobs, child support, expungement and driver’s license issues
• Recently enacted a policy in juvenile court that requires an assessment be done for any juvenile charged with an A, B or C felony.

MULROY: There are very serious racial and ethnic disparities. The DA can and should do several things.

First, increase diversity among prosecutors. We currently have 15% Black prosecutors in a system where about 90% of both defendants and victims are Black. We can do better. 

Second, the DOJ proved discrimination at multiple stages in the juvenile system in Shelby. We can address those by limiting adult transfer as described above, and welcoming assistance from DOJ, whose involvement was prematurely terminated by the Trump DOJ. 

Third, given the significant racial disparities described above regarding pretrial detention, fixing our broken bail system as described above will ameliorate some disparities. 

Fourth, we need to do more implicit bias training for the staff.

Fifth, we need to do a better job of collecting and publishing data on racial disparities. When I was at DOJ Civil Rights, I had a supervisor who said, “If you want to improve something, measure it.” We need more robust statistics on charges, dispositions, etc. by race of defendant, victim, arresting officer, etc. We should publish them on the DA website in a publicly accessible dashboard. Let the public, reform groups, the media, victims’ groups, clergy, etc. hold the office accountable as they track progress (or lack thereof) on reducing racial disparities.