- (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.

- The race for district attorney tonight on Behind The Headlines.

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

Thanks for joining us.

We are joined tonight by both candidates for District Attorney.

We have Amy Weirich the current District Attorney, Republican, running for reelection.

Thanks for being here.

- Sure, thanks for having me.

- Steve Mulroy, former County Commissioner, former federal prosecutor, currently a law professor at U of M, the Democratic candidate.

Thanks Steve for being here again.

- Pleasure to be here, thanks.

- Of course, Bill Dries joining me tonight for the questions.

I'll say a couple things before we get started.

Early voting starts in really give or take two weeks, July 15th, and election day is August 4th.

Candidates have been here and said, "No rules and no limitations," which I appreciate immensely, And I think everyone will appreciate other than to be civil and, you know, try to allow everybody to talk.

We'll try to get through everything we can in 26 minutes.

we will not get to everything we should in 26 minutes.

So again, I appreciate you both being here.

I'm gonna start with a question I probably wouldn't have had we done this a couple weeks ago, but I'm gonna go to use the incumbent and just, I made that up in my mind right here.

Roe v. Wade and the trigger law that kicked in in Tennessee, the Supreme Court has ended the right to abortion and overturned Roe versus Wade.

So there's still a lot of uncertainty about certain things, but the right to an abortion in Tennessee is gone.

There's a Fetal Heartbeat bill.

I mean, everything has kicked in.

The bill as I understand it, this is a non-lawyer, I got two lawyers at the table, does not criminalize a woman who gets an abortion, but it does criminalize anyone who gives an abortion.

And so are you as prosecutor, if you are, as you are now, as DA, if you get reelected, would you want to pursue cases against doctors who are found to give abortions, and let's also get into people who self administer an abortion and the distribution and use of medical medication to induce abortion?

- I don't want to pursue cases against anyone.

And we don't look forward to prosecuting anyone for any type of crime in Shelby County.

What I have said on Roe versus Wade, and what I'll continue to say is what you've hit on.

That there are still a lot of unknowns.

It's very fluid in terms of who has jurisdiction and authority, whether it comes through the Health Department, state department, those types of organizations or law enforcement, but under 87106, a prosecutor cannot make broad statements about cases that they won't prosecute until they have the facts and the circumstances in front of them to make that determination.

So if they do make those statements, it triggers the Attorney General coming in and asking for a protem district attorney to come in and handle the cases.

- Okay, one follow up.

There have been times I think you and I talked about some years ago, when you, as district attorney, made a choice to no longer prosecute small level offenses, you know, broken taillights, unpaid tickets.

You have a certain amount of discretion to choose what you go after.

Is that a fair question?

Is that a fair interpretation of the broad power that you have?

- Yes, but we look at the facts and the circumstances.

So our driving on revoked policy is a great example of that.

We don't prosecute driving on revoked cases if the reason for the revocation is strictly financial, but we don't know that until the case hits the door, until the arrest has been made, the citation has been issued, and we're able to make that determination of why it's been revoked.

- Steve, same questions to you about Roe v. Wade is if you are to become district attorney, I mean, would you pursue cases against doctors who are found to give abortions?

And what about self administered abortions?

And what about medical medication around abortion in terms of shipping, receiving, and using?

- I think we can answer the question actually.

While a prosecutor shouldn't be in the business of saying, "I will never prosecute X," nonetheless, any prosecutor can say, "Here's what I think is a policy matter, "and here's what I think should be a high priority, and here's what I think should be a low priority."

And I've already answered that question publicly over and over again.

I'll do it now.

I think it's a public policy matter.

It's a very bad idea to use the criminal justice system on matters of reproductive choice.

Therefore, these kinds of prosecutions would be extremely low priority for me.

So we know that there's a clear difference between the way I would handle it and the way that Ms. Weirich would handle it, because even though she declines to really answer the question, we know from her past record, because between 2014 and 2016, she was one of the few prosecutors in the state of Tennessee who prosecuted so-called fetal assault laws, right?

So if there was reason to think that the woman had had substance abuse issues while she was pregnant, then you could go after her criminally, right, for assaulting the fetus.

Shelby County was responsible for about 25% of all such prosecutions in the state during the two years when that law was active.

And it was a public health disaster, public health experts almost uniformly said that what it was gonna do was gonna disincentivize pregnant women from seeking medical treatment for fear of being prosecuted.

That is in fact what happened.

And Ms. Weirich went to the legislature and lobbied for that law to be continued.

A position that was so extreme that even the Republican legislature declined to do it.

So I think we know where the two candidates stand on this.

- Okay.

And I was gonna answer your question about self-administered abortions, but you want to go to Amy.

- Yeah, yeah.

Go ahead and respond to that, to those.

- Yeah.

And in fact, I think I've been on this show before and talked about our use of drug court to address those women who gave birth to children who tested positive for illegal drugs.

We were using the drug court to help those women get treatment.

And to say it was a complete disaster ignores the women who were very thankful for the opportunity to get connected to resources and to get help for their drug addiction.

- You wanted to go on and answer my original question.

- Yeah, see, because part of the problem here is that, you know, we've heard that there's some ambiguity about whether it's gonna be the Health Department or the criminal justice system, the law, the trigger law, makes it a Class-C felony to perform an abortion or assist in any way.

And under accomplished liability principles, that could apply not only to a doctor, but to anybody who assists.

For that matter could be the woman who assists, right?

And, you know, a self-administered abortion might come under the very broad language of that law.

So again, my answer is the same thing.

I think it's bad public policy.

I think it would be a very low priority for me.

- Okay, let me go to Bill.

- Do you think that the state law is going to go through court again, despite the US Supreme Court opinion?

Because of the questions that both of you have have said- - You're talking about the trigger law?

- Yes.

- Oh yes.

I think there's great likelihood.

That's why I say that this is, it's very hard to answer these questions without the waters being settled a little bit more than they are.

We know what 87106 says.

We know the language of that is very clear, but as for, you know, where this all lands, I think that's still very much up in the air, yes.

- Your opinion on that.

- The trigger law is very clear about some things.

We know that anybody who performs an abortion or assists in any way is prosecutable for a Class-C felony.

Don't think it's gonna be any question about that.

That'll be no need for litigation to clarify that.

And so I think the voters deserve a straight answer on, is that gonna be a high priority, a low priority in the people that they elect to be their chief prosecutor.

Now, are there gonna be some questions about, you know, how it applies to self-administered abortions or what if the woman is charged as an accomplice, could it be stretched that far?

Yes, but I think that's the case with any new criminal law.

- Let me ask both of you about the basic nature of this race.

Is this race as simple as being about criminal justice reform?

Is that how voters should look at the choice that they're making here?

- Well, I think it depends on how you define criminal justice reform.

I think the choice is very clear in the sense that I am and always have been a prosecutor that holds offenders accountable.

I don't believe the answer to our violent crime problem is to open up the prison doors.

It's one of the reasons I've fought for so long and so hard for truth in sentencing, which takes effect tomorrow.

One of the things that had to happen in this state to get a handle on violent crime was for us to close the prison door that's been opened too wide for too long.

And so this statute and this legislation will help do that.

But freeing violent criminals from prison is not the answer to our violent crime issues.

- Is it that simple?

Is this one candidate who favors criminal justice reform against another candidate who does not favor criminal justice reform?

- Actually, I don't think that's very far off the mark, right?

Because there's a lengthy list of criminal justice reforms that I have been in favor of that have been tried successfully in other cities around the country and have not resulted in an increase in a crime that Ms. Weirich opposes.

Ms. Weirich regularly opposes post-conviction DNA testing in case after case after case.

I would not do that.

I favor a conviction review unit to make sure, like they have in Nashville, which has worked successfully in Nashville.

Every couple of months there's a new headline outta Nashville about an exoneree, somebody, you know, who was wrongfully convicted because of the conviction review unit.

Ms. Weirich opposes that.

I think we need juvenile justice reform and the independent court monitors appointed by the court in the juvenile court case agree with me.

They said they excoriated the prosecutors for the way they treated the question of adult transfer in juvenile court.

They called quote "a toxic combination for African-American youth."

Ms. Weirich opposes those reforms.

So I think a lot of it does have to do with criminal justice reform versus the status quo, but there's one other issue that's really on the table that we need to address.

And that is crime, which has gone out of control under the incumbent's watch.

Violent crime was actually dropping in the years before Ms. Weirich took office in 2011, has been rising steadily ever since, almost every year, to the point now where we're not just number one in the state, we're number one in the country for violent crime.

Now I'm not blaming any one official for that solely.

It's a complex problem, but clearly what we've been doing ain't been working, and we need change.

- You wanna address?

- Yeah.

- Yeah, yeah, please.

- So I started my answer with it depends on how we define criminal justice reform.

I'm very proud of the reformative programs that we've implemented in our office.

Community justice is a great example of that, our restorative justice program that I'm sure Professor Mulroy will discredit here in a moment because we've only had 88 cases go through it.

But to understand the program, you have to understand that offenders have to want to take advantage of the program.

Victims have to consent to have the case handled that way.

And so to, you know, to kind of dismiss the effectiveness of that program is really insulting to the hardworking men and women in our office who make it work and the volunteers in the community who have made it work.

As far as post-conviction DNA testing, our office participates in on a daily basis the review of cases, whether it is from the moment of arrest or whether it is from post-conviction standard.

We have not opposed DNA testing by any stretch of the imagination.

What we do is follow the law and we follow the statutes and the procedures that are set forth so that we know that it's done in the right way.

Conviction integrity, I think the citizens of Shelby County would rather have 110 prosecutors assigned to a conviction integrity unit than one prosecutor assigned to a conviction integrity unit.

That is what we do every day with every case that we either decide to continue prosecution on or not.

On any given day, there are many more cases dismissed from the system than those cases that we decide to proceed on.

And we don't submit anything to the grand jury unless and until we know we can prove that case and every element of it beyond a reasonable doubt.

Community prosecution is a reformative program that we've implemented, our driving on revoked policy, our prostitution diversion program, focus deterrents, all of these are evidence-based programs that are reformative in nature.

- Commissioner, as you contend, this is a race about reform.

Is it then a race about who will hold those who break the law more accountable?

- And let me say, there's 13 minutes left.

Just so, we're halfway through the show.

- Okay.

You know, Ms. Weirich, there's no shortage of ability for us to hold criminals accountable.

I think we need to refocus on violent crime, which is out of control in Shelby County.

And we need to be tougher on violent crime.

So there's no unwillingness on my side to hold people accountable, but I also think prosecutors need to be held accountable when they break the rules, and Shelby County DA's Office is the worst in the state for prosecutorial misconduct, not sharing evidence with the defense when they're required to do so by law, making prejudicial comments to the jury when they're not supposed to, and both the office itself and Ms. Weirich personally have been cited repeatedly by courts for doing that, including by the State Supreme Court, the Sixth Circuit Court of Appeals, and an ethics panel of the Tennessee Bar.

So yes, I think we need to be holding people accountable.

I think we need to be refocusing on violent crime in a way that we haven't, and I also think we need to hold prosecutors accountable for when they break the law.

- I wanna come back to your strategy about violent crime, but I wanna give you a chance to respond.

- So violent crime is the number one priority of this DA's Office, and always has been.

Not prosecuting juveniles for violent crime is not the answer to our violent crime problem, and that's one of my opponent's platforms, to not transfer juveniles.

- That's not true.

- Well, you've said it.

The juveniles that we've asked for transfer on have committed murder, rape, carjacking, and other violent offenses, criminal attempt, murder in the first degree.

Forty cases were transferred last year, Thirty-two of those cases involved deadly weapons, the majority of those juveniles were 17 to 18 years old, and if we didn't file that transfer notice, they would be out back in the community within less than two years with absolutely no probation, no restrictions on them.

I agree that violent crime is a problem, but the solution is not opening up the prison doors and refusing to hold offenders accountable.

As to the ethics, may I please address this?

- Yeah, that's what I wanna make sure you got a chance to- - Thank you.

Cases are reversed for three reasons.

Judicial error, defense counsel ineffectiveness, and prosecutorial error.

In Shelby County, the majority of cases that are reversed are reversed because of judicial error.

The next highest number of category of cases is ineffective assistance of counsel.

Defense attorney's not doing their job.

Trailing in number three is prosecutorial error.

I have tried, handled, touched, been responsible for millions of cases in my 32 years as a prosecutor.

In one of those cases, I said something in a closing argument in a way in which I shouldn't have said it.

I knew it when I said it, and I was cited by the Board of Professional Responsibility.

I agreed to take a private reprimand.

They didn't want to do that, and they carried it through litigation until finally letting me plead guilty, if you will, to a private reprimand that I made public.

But that was one case.

And this study and this quote from us being the worst DA's Office in the history of the world and the worst DA's Office in the state of Tennessee is absolutely disingenuine and a bold faced lie.

It is based upon a report from a defund the police group of criminal defense attorneys and prosecutor haters who have taken allegations and accusations from convicted murderers, that I've convicted, that are mad about being in prison, and they've cut and pasted their allegations none of which have been substantiated by the court, and only one of which led to the ethical violation from my closing argument.

- I wanna come back, Steve, to violent crime.

And you had said, as DA Weirich was speaking that you were not opposed to transferring juveniles to the adult court.

Clarify your position on that.

- There are gonna be cases we're gonna have no choice but to transfer a young person to adult court, right?

Extreme.

But those should be the rare exceptions, not the rule, because the evidence shows that when you do that, not only are they at greater risk for sexual assault and suicide, but they're actually more likely to reoffend when they come out.

It's basically crime college.

And that's gonna make us less safe, not more safe.

So it should be a last resort.

That's not what's been happening in Shelby County.

Every year, Shelby County does more adult transfer in one county than all other counties combined.

Ninety-five percent of them- - But those forty- Let me interrupt you and say the 40 that were transferred- - Let me address that.

- Okay.

- Ninety-five percent of all of those transfers every year are black, by the way, okay?

And the Department of Justice Civil Rights Division, my old shop, the statistical study that proved that black teens were treated worse, pound for pound, apples to apples comparison, than white teens.

But among that 40, some of them were as young as 14, and there's a lot of play in how you charge something as a prosecutor.

You can charge something as first degree murder, second degree murder, reckless homicide, you can charge something as carjacking, or just regular theft.

There's a lot of play in those rules, but when it comes to violent crime, can I just point this one thing out?

This is really important.

For someone who talks so tough about violent crime, the DA's Office is pretty spotty when it comes to actually aggressively prosecuting violent crime.

On this show, Mayor Strickland made headlines recently by saying, "Well, in 2021, only 1 in 4 "of aggravated assault convictions resulted in actual jail time."

I mean, one in four of them resulted in no jail time.

A fair point, but that's the DA's Office's fault.

Those were the result of plea agreements that Ms. Weirich's office agreed to.

You can't blame the judges for that.

- Okay, yeah, I am gonna let you, yeah, we've got seven minutes here.

- Thank you.

- But there are violent, I mean, sadly, I mean, everyone on this table would say sadly, there are teenagers who commit very violent crimes.

Are you saying that of the 40 that were transferred last year, some of those should not have been transferred?

- Yes.

Yeah, I'm saying that.

I'm also saying that in every other county in Tennessee, they have problems with teen violence and violent crime, and yet they don't go off the charts with adult transfer the way we do.

We are a complete outlier in the state of Tennessee.

Ninety-five percent of them are black, and an independent federal court monitor said that this was a toxic combination for African-American youth.

That wasn't me talking.

And by the way, that study about the prosecutorial ethics, that was a Harvard Law School study.

That was not a defund the police organization.

- It was the Fair Punishment Project- - Harvard Law School.

- Located near Harvard University somewhere, but it was not a Harvard Law School study, and if it was a Harvard Law School study, then that's very embarrassing for the Harvard Law School, because one of the cases they cited, the author of the study couldn't even find an order from the judge completely throwing out the allegations of the convicted- [people talking indistinctly] - Steve, Steve, Steve, hang on.

Hang on.

We got a lot going on.

We got about five minutes here.

I want you to come back.

- I would like to be able to respond to that, because when asked, you present- - And then I would have to as, as well, right?

- I'll move on.

I'll move on.

- I'll give you a minute here.

I'll give you a minute.

Go ahead, go ahead.

- On the violent crime issue, we are the biggest county with the most business.

The most cases come through the door at the Shelby County DA's Office every year.

We are not a small rural jurisdiction.

Of those 40 cases, I cannot imagine one of those victims' families or one of those victims, I don't know who I would pick to sit across a table from and say, "I'm sorry, we've transferred "too many young people this year, "and I can't seek a transfer on the person "who killed, raped, or robbed you at gunpoint "earlier this year.

Sorry, I can't do it."

That's not my job.

If we are frustrated as a community because too many juveniles are being transferred, and I'm as frustrated by it as anybody else, and quite frankly, I don't think the juvenile court system is tough enough when it comes to holding juvenile offenders accountable, but it needs to be timely and it needs to be appropriate.

And when it is violent, that appropriate response becomes something very different.

- I have time too?

- Yeah, yeah.

- That was a long minute.

- No, we agree.

We got time.

- Okay.

All right, good.

- We're not doing this to the second.

Go ahead.

- First of all, there were seven different court cases that I'm aware of where the courts overturned a conviction and specifically called out Ms. Weirich personally for prosecutorial misconduct, not just one, but on the violent crime thing, we should make sure we understand what the trend line is.

- Okay.

- Can camera two see this?

This is where violent crime was low at the time that the incumbent took office.

And the overall trend has been rising steadily.

It may have fluctuated, but we're at record levels right now, right?

There's no way to discount that.

And I think part of it is because we've lost our focus.

We're not focusing enough on violent crime, we're focusing on petty prosecutions like Pam Moses for attempting to register to vote.

And I think that's really the number one issue that voters care about.

- Every prosecutor in our office, that's all they do, is focus on violent crime.

We have two courtrooms dedicated to doing nothing but prosecuting repeat violent offenders.

You know, everybody acts like there's this big mystery about what we do down at 201 Poplar every day and the aggravated assault quotation or quote from the mayor.

Come down to court.

You've been down there.

Come down and watch what goes on in every one of the courtrooms every day.

Aggravated assault cases take many shapes and forms.

Sometimes it's somebody pulling a gun on somebody.

And then when we need that victim to come to court, nine times out of ten, we can't find them.

We can't prosecute a case.

Aggravated assault is a probatable offense under the law.

And if someone is eligible for probation, what good does it do for us as prosecutors to hold some impossible, tough line of, "No, we're seeking prison sentence here."

We're always trying to reform individuals, and we are constantly trying to give them a second chance, but if they continue to victimize, they leave us no choice.

But with this juvenile issue, again, it's got to be something the community looks at long before it lands on my desk to decide whether or not we're gonna seek a transfer.

Why do we have 12 year olds out committing car jackings?

- We've got two minutes here, so Bill, last thoughts here.

- I wanna talk about truth in sentencing, which you advocated for very vocally in support of it.

- Yes, sir.

- We had Class-X felonies, I believe in the 1980s, as a state law, that didn't work that well in this regard built on the model of what we now call truth in sentencing.

What do you think is going to be different this time than the prisons filling up and the prisons becoming worse and not rehabilitative.

- We're sitting here talking about violent crime being a problem in Shelby County, and one of the main reasons it is a problem is because people were getting into the prison system and the prison system was running them out the back as fast as they could.

And we had victims who we were trying to explain why someone who had been sentenced to 10 years was out of custody in less than three years, back in the community, victimizing more innocent people.

And so we have to stop the bleeding.

And one of the most important and effective ways of stopping that bleeding is holding those offenders accountable.

This is not a mandatory incarceration bill.

What this merely says is that if you are sentenced to prison, if we had tried probation before and you have failed, or if this crime is so egregious that you have to go to prison, you're gonna do the time that we, legislature have deemed appropriate.

- Let me give same time to Steve.

- Okay, great.

Bill, you are absolutely correct.

As Governor Bill Lee, who's himself no liberal, said when he refused to sign the truth in sentencing bill, we tried something very, very similar to this in Tennessee a few decades ago, and it didn't work.

The crime rate did not go down.

But what did happen was the prison budget ballooned.

And we ended up wasting a lot of money for no effect.

We're gonna be spending 40 to $50 million more every year on building prisons under this new law.

If we could take half that money and put it into youth intervention and reentry services, we'd actually be safer and save money at the same time.

On this issue, Ms. Weirich is to the right, not only of Governor Bill Lee, but the American Conservative Union.

I don't think it's right for Shelby County.

- Okay, that is all the time we have for now, but we are gonna be able to get some more questions about truth in sentencing, some issues around advertising, we'll get to that in the podcast version of Behind the Headlines.

You can get that on WKNO, you can get it on The Daily Memphian site, you can get it wherever you get your podcasts.

Thanks to the candidates for both being here.

Thank you, Bill, and again, join us again next week.

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