- (female announcer) Production Funding for Behind the Headlines is made possible in part by the WKNO Production Fund, the WKNO Endowment Fund, And by viewers like you, thank you.

- DA Steve Mulroy, tonight, on Behind the Headlines.

[intense orchestral music] I'm Eric Barnes with The Daily Memphian.

Thanks for joining us.

I am joined tonight by Steve Mulroy, Shelby County District Attorney.

Thanks for being here again.

- Pleasure to be here.

- Along with Aarron Fleming, who covers criminal justice and public safety for us at The Daily Memphian.

I'll start with, we'll talk about a lot of things today, but one thing, and I should note at the top that, that we're holding this a week in case when this comes out a week later, things have happened that we don't ask you about.

And I'll mention that a couple times.

So the federal government came out with a report on MPD with a lot of, certainly it's a series of incidents that are, I think, objectively horrible to read about in terms of police misbehavior, violence towards people who've been in custody, those sorts of things.

The city is pushing back.

We had Mayor Paul Young on last week on whether they go into a consent decree, they're trying to look forward.

There's a lot of complicated stuff, some political stuff going on with that.

Unless I'm wrong, you and your office are not directly involved with this.

This report came from the federal government.

- That's right.

- But let me ask you a general question first and we'll get a little more specific.

What was your general reaction to it?

Have you read it in detail?

How did you take it?

- Yeah, I have read it in detail and my reaction is I was very concerned about it.

I mean, I think clearly it suggests that there are issues of culture that need to be addressed.

The vast majority of people on the Memphis Police Department force are people of good faith, and they have an extremely tough job.

They're out there under stressful conditions and they have to make snap judgment, quick decisions under trying circumstances.

But that doesn't mean that it can also be true that there are issues of culture that need to be addressed and that there's need for reform.

And clearly there's things that have to be done with training, with supervision, with accountability, with the way that MPD responds to mental health consumer calls in particular, looking at racial disparities and the use of non-lethal force, getting away from that as punishment for someone who is not obeying the police officers.

- Tasers, there's a number of instances.

- Pepper spray, things like that.

So, yeah, there's a lot to be concerned about.

- The report, you've been in office two, a little over two years that came out of the Tyre Nichols.

This report came out of the Tyre Nichols incident when the federal government got involved.

Have you seen, in the time you've been in office changes in how NPD operates?

- Some, yeah.

I think, Chief Davis, certainly after the Tyre Niles incident, talked about how they need to do a better job of having supervisors on hand for some of these incidents.

But I think there's more to do.

- What now?

I mean, since you've been in office, I mean, and going forward, excuse me, the DA's role in incidents where someone comes forward and says, "Hey, I was abused while in custody.

I was mistreated in custody."

Where and how does the DA get involved in that?

Are you guys looking for that or is that more that someone brings it to you?

They've hired a lawyer, they say, "Hey, I was mistreated by MPD."

Like, how is that whole circle work?

- Well, typically complaints like that come to us.

We're not going out looking for them.

And we interact with them in a couple different ways.

One is, if we think that there's merit to it, or at least enough merit that it jeopardizes the case, we may need to make a decision about whether we're gonna go forward with that case.

And so we had to dismiss a number of the cases where a SCORPION Unit police officers were involved, after the Tyre Nichols incident.

But if the evidence is serious enough and the alleged misconduct is serious enough, then we have to decide whether we're gonna prosecute.

And that responsibility lies in our office with the Justice Review Unit, which is the independent unit that we created, basically to look out for wrongful convictions and wrongful sentences.

I've also given them that job as well, because they're an independent unit.

- But before I go to Aarron, I mean, do you look at that DOJ report and look at some of those incidents and think, "Hey, we maybe need to look into those?"

Or have all those been looked into by your office or someone else?

- These incidents, I think have already been looked into.

A lot of them occurred under my predecessor.

- Okay.

- So, yeah.

- Okay.

Let me bring in Aarron.

- I mean, that's sort of what I was gonna ask, just a similar question, but like with it being a civil investigation, like is there room for criminal prosecution?

- Sure, yeah.

The one does not preclude the other.

- Let's just segue out of that into crime generally and some of the things you're working on right now.

The stats that have come out in the last couple quarters from the Crime Commission have shown reductions in violent crime particularly and other types of crime.

That is, I mean, I guess one caveat on that is that's from pretty, pretty high levels.

- Right.

- But what do you take from those declining numbers and what is your office doing to try to keep those numbers going in that direction?

- Right.

So there is some good news, right?

So for four consecutive quarters, starting at the last quarter of 2023, we have seen significant continued decline in crime across all categories.

Double digit decreases in almost every category, including violent crime, including auto thefts and things like that.

Yes, it's coming down, but it's coming down from an unacceptably high level, right?

And so, we still have work to do.

We can't be popping any champagne corks anytime soon.

But there are things that we can do working cooperatively with law enforcement and state, city and county officials to try to keep that crime rate going down.

One of the things that we've been focusing on a lot with respect to violent crime is our V11 initiative, which I think I might have mentioned in the past.

- Yeah, go ahead.

- At the beginning of the year, we brought this online, we've identified 11 categories of offenses that are either violent or associated with violence for special priority and the file gets stamped V11 and we give it special treatment.

What does that mean, it means three things.

First, we're tougher on bail.

So if it's a V11 case, the presumption is in favor of unaffordable bail, meaning that they will be remaining in custody until the case is disposed of.

If they do get out on bond, we'll ask for monitoring.

We'll be checking to see if they've had any contact with law enforcement.

If they're rearrested, we will immediately move to revoke that bond.

Second, speed.

We're moving the V11 cases quicker through the system.

There's a series of internal deadlines that the prosecutors have to move those cases along.

And then third and finally we're doing more robust investigations if it's a V11 case.

To give one good example, if it's a V11 case, we're listening to jail calls.

And that has already borne fruit in a number of instances.

Earlier this year, we had a couple of instances where we were actually able to prevent a crime from taking place in the first place because we heard it being planned.

- And that's someone who's in custody in the jail.

And you all can legally listen in on those.

- That's right.

There's no expectation of privacy in jail.

And then the second, just a quick example, just recently I had a junior associate come into my office all beaming because he thought, because of proof problems that we were gonna have to agree to a time served plea deal.

But then he listened to the jail calls and he heard the defendant confessing, so.

- Oh, okay.

Let me bring Aarron.

- And yeah, just on that, I mean, do we have data on how this has been going?

- Some.

Partial data.

It's still early days, so we don't have complete data yet.

I can tell you that we have given a thousand cases, over a thousand cases, the V11 treatment so far this year.

I can also tell you that the cases are moving out of general sessions court, the downstairs misdemeanor pretrial court, and upstairs to the felony level criminal court at a quicker pace.

- And that's a thousand out of roughly how many, it's not a math test, but.

- Right.

So we handle over 40,000 cases a year.

About 3,000 of those are violent.

- So the V11, so maybe a third of the, okay.

The ones that don't, somebody's listening saying, "Yeah, but what about the ones that don't get that treatment?"

Why wouldn't all violent crimes be treated with that level of intensity?

- You're talking about sometimes like, so let's take aggravated assault, for example.

Aggravated assault covers a wide variety of things.

If you've got two neighbors who are across the street from each other yelling and having an argument, and one of them even briefly brandishes a weapon, let alone pointing it, let alone pulling the trigger, let alone anything, that's technically aggravated assault.

Aggravated assault is also putting several bullets into somebody's body.

So there's a wide variety of things.

We're focusing on the things that really are public safety related.

So one of the V11 categories is aggravated assault when the gun is actually discharged.

- And let's play that scenario, that hypothetical out a little bit more.

I mean, again, do you in that scenario, because this is a thing that comes up all the time when you get criticized or your office gets criticized when the judicial commissioner is setting bail or judges get criticized.

Well, yeah, the person who, and this is hypothetical, right, who holds up the gun, doesn't point it, doesn't shoot it.

But then when you look at their record, they have a long history of other times where maybe they did point and maybe they did shoot.

- Sure.

- How does that kind of thing play out?

- We always look at the criminal history.

I mean, that is just, that's Prosecution 101, right?

So if that person has a history of prior criminal conduct, particularly if it's prior violent conduct, well then that definitely goes into our decision about how aggressively to prosecute and what kind of sentence to seek.

- Again, before I go to Aarron, I think you and a lot of other folks in the criminal justice system are advocating for a law next year, correct me where I get this wrong, that with juveniles, there's an exception, that the system such as it is, can look when sentencing a juvenile, they can look at their prior history and their record, but when setting bail, you cannot.

- Right.

- And that is probably a shocking reality for a lot of people listening that you can't look at the prior, other times where guns were pointed or shot or there was violence.

You can't look at that.

The judges can't look at it.

No one can see that.

- So the adult court judge when setting bail cannot look at the juvenile court record.

The juvenile court record is sealed.

The state law says that the adult court judge can definitely look at the juvenile court record when they are sentencing somebody after they have been convicted in adult court, but not for bail.

I have been advocating for a while, a change in state law that would allow adult court judges to look at the juvenile court record.

But more than that, I'm not just waiting on the state legislature, Eric.

For a while now, I have been working with Judge Sugarmon-- - Juvenile Court Judge.

- Juvenile Court Judge.

Yeah.

Judge Sugarmon in juvenile court judge to try to get an agreement whether or not we get state legislation for certain types of offenses, violent offenses and auto break-ins and auto thefts, where Judge Sugarmon would allow the adult court judges to take a look at the juvenile court records.

And I wanna make some point important point here, Eric.

I understand why juvenile court records need to be confidential.

I don't think that if a kid makes a mistake that it should follow 'em for the rest of their lives.

I don't want that popping up when they're seeking a job or applying for a loan or trying to seek housing.

But if you've got a 19-year-old who is accused of car theft and the judge is setting bail, don't you want that judge to know when that kid was 16 and 17, he had three car theft convictions?

- Yeah.

Aarron.

- Yeah.

I mean, it seems like a lot of people are on board with doing this.

I mean, do you see any potential drawbacks to doing it though, in opening those records up?

- Well, for the same reason that we want juvenile court records to be confidential in the first place, right?

We don't want it to follow that person like a scarlet letter throughout the rest of their life when they made mistakes when they were young and kids.

So, I might be open to an idea where the juvenile court records can be used up until age 25 or something, right?

Because by the time you're in your 25 and your 30s, you have a track record as an adult that you can look back to.

- When we talk to you about these things.

In the news we might write about it, local TV might do stories about a given person who's been let out on their own recognizance and they re-offend and everyone's angry, right?

And it comes up in the comment section like we, this is not me saying this, it's just you get a lot of sentiment.

You get it from politicians.

We'll talk about that as well.

The sentiment that the DA's Office needs to treat everyone more harshly when it comes to violent crime.

And this notion of releasing people on their own recognizance.

The DA can do more when a judge releases them.

How, two years into this, do you view that criticism or that request of your office do more with repeat violent criminals to keep them in jail?

- See Eric, the simple reality is that our prosecutors every day are in the courtroom asking for higher bail when it's appropriate, asking to revoke the bail when we have legal grounds to do so.

But we don't make the final decision.

The vast majority of bail determinations are made by judicial commissioners who are like assistant judges appointed by the County Commission without any involvement of our office.

If and only if that defendant's still in custody seventy-two hours later, then there's a bail hearing, which is our first opportunity to weigh in.

And even then, all we can do is make a recommendation.

The judge makes the final decision.

And the vast majority of these cases you're talking about that have gotten public attention, these controversial bail decisions, those decisions were either made without our involvement before we got involved, or in a situation in which we did not agree with what the judge did.

So I believe that we are being unfairly blamed 'cause we are in the courts every day fighting for what we think are appropriate bail decisions.

- Aarron.

- You kind of brought up local TV news and Channel 5 did a story recently where they talked to Judge Anderson who has been criticized a lot for his bail decisions and your office has appealed some of those decisions.

And he mentioned that when he's looking at bail, he does not consider a person's current charges.

What is your response to that?

- So we have a respectful disagreement with Judge Anderson on the law on that point.

We believe the statutes regarding bail are clear that you can consider the current charge and the strength of the proof, or lack thereof, regarding that current charge when you are setting bail.

And that's why we took a couple of those cases up on appeal.

We hope that the criminal court judges will clarify this so that we don't have this disagreement going forward.

- All this kind of, this pushback on these what these incidents what some people would say it's a pattern.

I think you would push back on that and you can, has led to talk about the legislature this next session trying to recall you trying to put you out of office.

I mean, I can't remember if we- - Removal.

- Removal.

What is your response to that?

And again, we'll be covering as the session starts in January, I think we're gonna have Brent Taylor, local state senator who's been a big critic of yours and London Lamar, State Senator, a democrat, on I think next week we're hoping, but your response to this effort or this talk of removing you from office.

- Sure.

So Senator Taylor certainly raised his profile by continuing these attacks and talking about removal and we've certainly gotten a lot of press from it.

But the bottom line is, by any objective standards, there's no grounds for removal here.

And you don't have to take my word for it.

Former Judge and State Attorney General Paul Summers, a Republican DA Fred Agee, from a neighboring jurisdiction here in West Tennessee, locally Otis Sanford, they've all publicly come out and explained there's just really, there's no there there.

If you think about this, Eric, for the last decade, violent crime rose steadily under my predecessor to the point where we were number one in the country for the two years before I took office.

And there were all these reports of ethical violations.

No one said anything about removal.

A year after I took office, crime has finally, finally started to go down for four consecutive quarters.

Now it's still too high.

We agree with that, but at least the trend lines are in the right direction.

And now suddenly we're talking about removal?

It's hard not to think that some of this is political, particularly when you take a look at our history.

That particular constitutional provision that we're talking about removal, in our 200-plus years of history as Tennessee as a state, it's never been used to remove a DA, not once.

It has been used to remove a judge about a half a dozen times, but always when there's been an actual conviction for bribery or some sort of felonious conduct, right?

- Like there were due process, a whole court case.

- Yeah.

- And part of the punishment was the state legislature stepping in.

- Right, right, right.

And and it's never even been considered unless you either had criminal conduct or official findings of gross ethical misconduct that could lead to disbarment.

You've got nothing like that here.

And instead you've got somebody who a year into his term, has now seen crime finally coming down.

All these initiatives that we're talking about, we're doing what we can.

There's just really nothing to this.

- Right.

And I'll say we had Frederick Agee, the neighboring DA, on the show some months ago.

People can go to wkno.org and look for Frederick Agee and see that conversation.

He also wrote a column for us this very issue.

And so we've covered that, but let me get Aarron back in.

- I'll go back to bail for a second just because we brought up Taylor.

He's also mentioned, so with your office appealing some of these bail decisions you've used the writ of certiorari, and you've called that sort of an emergency or rare power, but it's been used a little more frequently.

But Taylor has mentioned that you could be doing it more often.

What is your response to that?

- Couple of things.

First of all, if you take a look at my predecessor or her predecessor, Bill Gibbons and Amy Weirich, it was almost never used.

It was extremely rare.

And so we're not doing anything different than our predecessor.

In fact, we're probably using that writ of certiorari procedure more than our predecessors, right?

- Go back to law, professor.

- Yeah.

- Explain what that is for the layperson out here.

- Right.

So ordinarily you don't immediately appeal something, you wait until the case is over and then you appeal all the decisions, right?

So you don't have this immediate, what we call interlocutory appeal.

And when a general sessions court judge, who is the county judge downstairs in the building who does the misdemeanors and pretrial stuff, makes a bail decision, normally that's the end of it until the case is over.

In rare cases, you can immediately appeal that up to a criminal court judge who is also a trial level judge, but is a state level judge and is a little bit higher.

They handle the felony cases.

They are a state level judge.

It's called a writ of certiorari.

It's extremely rare to be used.

And there's case law that talks about how it should not only be used in extreme circumstances, not just 'cause you disagree with the judge.

Under either of the two versions of the writ of certiorari that Senator Taylor has been talking about, at a minimum you have to identify a specific legal or factual error by the general sessions judge in order to take it up for that immediate appeal.

It can't be used just because you disagree with how the general sessions judge exercised his discretion.

You just think he was too lenient, right?

And so that's my response to that.

But I'll also mention one other thing.

It's really important that we not demonize people here.

Okay?

I have a lot of respect for Judge Anderson.

I disagree with him on a couple of points of law.

I disagree with him about a lot of these decisions he's been making.

But I just think it's important for us to be respectful.

- Six minutes left here and I should remind everyone we're taping this a week ago as you are watching it.

So if there are things that have come up or something like that, 'cause it's a fast moving space that the DA works in.

For my schedule, we needed to pre-tape this.

So I should have reminded everyone with that.

Aarron today, which would be a week ago, has a story in The Daily Memphian about huge problems being identified at the jail in terms of intake.

They're overwhelmed.

There are people waiting in holding cells, they're sharing rest- It's, and I don't think, and Aarron can correct me if I'm wrong, it's not just violent criminals, it's just anybody going into the jail is being held in a really, really terrible situation and not being processed and moved forward quickly enough.

- Right.

- And this is on top of a whole host of issues, locks that don't work in the jail.

- Yep.

- Overcrowding...

Does that reality influence your decision making around appealing bail decisions, letting people out that you know there's this problematic, I think by most any standard, not, some people may say, "Well who cares?

They were arrested."

But I think most people are like, "Well, there needs "to be some fairness and legally there needs to be some sort of standard of treatment."

But does that influence you that you know there's so many problems over there?

- It actually doesn't.

- Okay.

- We make our decisions based on the facts and the law on a case by case basis.

Like I said, where we think the bail should be higher, we aggressively argue for it.

Where the person's been rearrested, we move to revoke.

We take into account the seriousness of the offense, what the criminal history is, we just do that.

But onto that point, this is something that we really should be concerned about.

Jail intake should be measured in hours, not days.

And the fact that it sometimes takes days is problematic.

And you mentioned, oh, well, some people say they don't care, they've been arrested.

The important thing we need to realize here is that these people under the law are presumed innocent until proven guilty.

And some of them are actually innocent and they don't deserve to be treated this way.

Now I have a fair amount of sympathy for Sheriff Bonner.

He is understaffed, they've been chronically understaffed for a long time.

But nonetheless, it's cold comfort to the people, particularly the innocent people who are getting treated this way and having these kinds of delays and these kinds of bad conditions.

We need to take it seriously.

- Aarron.

- Does it, I mean we talked about, influencing your office, but does it impact it at all in the sense that like a lot of these guys, like they're not even fully in the jail yet.

So like what does that do to a case if they're not fully even processed into the jail and they're just sort of waiting in intake?

Does that affect that at all?

- Well, I don't think all that much because normally, these cases are measured in weeks, months, before we're resolved.

So that kind of delay wouldn't necessarily affect the overall disposition of the case.

It's just a concern because we want people to be treated humanely.

We want the system to work efficiently.

- Just a couple minutes left, I mentioned the legislature.

What is on your list of requests?

I mean a lot of people do forget, I think that most of the laws you're enforcing are set at the state.

They're not local laws.

And so what are you looking for from the state beyond what we already talked about?

- Yeah, I think there are at least four things that we really wanna focus on with the state legislature this year.

One is to increase the penalty level for the possession of those Glock switches.

Those devices where it's attached to a handgun, it makes it a machine gun.

Right now they are illegal but they're only an E felony, which is the lowest type of felony.

We think it should be raised up to a C felony, at least.

That's an important thing.

I wanna change the law so that adult court judges have access to juvenile court records for bail, at least, until they're 25 or 30 years old.

We want funding for a crime lab.

I know the report came out and we haven't talked about that, but there are discrete types of things that we can do short of standing up and building from scratch an entire full service crime lab, like Rapid DNA, like better cell phone extraction work that we could use some state funding on.

And I think that would really help with our clearance rate, our solve rate.

And then finally, I would like some more state funding for PURE Academy type facilities.

So this is a private boarding school for justice involved youth.

It has some very, very good statistics on low recidivism rates, high graduation rates.

We have a dearth of residential facilities for kids who are getting in trouble.

And I'm not just talking about cages, I'm talking about places with wraparound services.

So the state could help us with the funding with the crime lab and the PURE Academy-type places and help us with the Glock switch penalty and juvenile court records.

- Real briefly, we do a whole show on this, but we talked with Mayor Young last week about violence intervention programs.

It's been a big topic at City Council.

There are many, many programs that are doing this.

Maybe some are saying too many overlapping, where's your space in this?

These are folks who go out when they get word of some violence maybe happening, try to work with people, try to talk them down.

I'm simplifying, where do you play in that?

- Big fan of it.

Memphis Allies, part of the Youth Villages system.

It shows great promise, HEAL 901.

There are a number of different organizations.

The way we interact with it was that we will refer cases out to those organizations.

We will negotiate a plea saying, "We will give this guy a chance, "but they have to enroll in this program and successfully complete it."

And we need way more of those.

- Okay, I didn't give you enough time on that, but I appreciate you being here.

Thank you very much.

Thank you Aarron.

That is all the time we have this week.

If you missed any of the episodes, you can go to wkno.org or YouTube or The Daily Memphian to get it, you can also get past episodes, including Mayor Paul Young who was on last week.

We talked a lot about criminal justice and other issues with him.

But that's all the time we have this week.

Thanks very much and we'll see you next week.

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