Top Prosecutor in Memphis Censured in Death Penalty Case

Thomas Henderson, a top prosecutor in the Shelby County District Attorney’s office, has been censured by the Tennessee Supreme Court for his actions in the death penalty case of Michael Rimmer as reported in Saturday’s Commercial Appeal. Henderson, a district attorney in Shelby County since 1976, currently supervises more than 50 trial attorneys who prosecutes felony cases in the county’s 10 criminal courts.

In 1998, Henderson secured a murder conviction and death sentence against Michael Rimmer for the murder of Rimmer’s ex-girlfriend, Ricci Lynn Ellsworth, though her body was never found. She was last seen at the Memphis motel where she worked as a night clerk. Her office showed signs of a struggle. Rimmer had served time for raping and assaulting her and was arrested in Indiana a month after the crime in a stolen car with her blood in the back seat.

In 2004, Rimmer was resentenced to death after an appeals court found that incorrect jury forms were used in his first sentencing.  In 2012, Rimmer was awarded a new trial by Criminal Court Judge James Beasley Jr.

Attorney Kelly Gleason, an assistant with the Office of the Tennessee Public Defender, filed a complaint against Henderson with the Tennessee Supreme Court’s Board of Professional Responsibility in November 2012 alleging misconduct in Rimmer’s case as well as other death penalty cases.

She said that in Rimmer’s case, Henderson failed to tell defense attorneys about both police and FBI records of an eyewitness, an Army sergeant based in Hawaii, who said that he saw two men at the motel around the time of the victim’s disappearance with blood on their hands.  According to the witness, these men  did not match Rimmer’s description. In fact, the witness identified another man, a local felon, in the photo array as one of the men that he saw. He did not select Rimmer’s photo, which was also included in the photo line-up.

The Memphis police identified the felon and his friend, who matched the artist’s sketch of the second man with blood on his hands, but cleared them both. Jailhouse informants said that Rimmer stated he would kill Ellsworth when he got out of prison, and the police and prosecutors were convinced of Rimmer’s guilt.

In preparation for the first trial,  Rimmer’s defense attorneys asked prosecutors about any evidence that might assist in exonerating their client, evidence to which they are entitled by law. Henderson wrote, “the State of Tennessee is now unaware of any evidence which tends to exculpate the defendant of the crime charged against him.”

Again in 2003, when attorneys were preparing for Rimmer’s resentencing hearing, Henderson wrote that, “the state is not aware of any ‘misidentification’ in this case.”

Judge Beasley, in his decision to award Michael Rimmer a new trial,  cited, “a substantial question as to (Henderson’s) honesty, trustworthiness, or fitness as a lawyer,” and found that the prosecutor “purposefully misled counsel with regard to the evidence.” The Judge did not disqualify the rest of the district attorney’s office from the case but ordered a new trial due to ineffective assistance of counsel, who did not thoroughly investigate the evidence which contained the report of the witness statement. Shelby County District Attorney General Weirich wrote in her statement concerning the censure, “Michael Rimmer has been awarded a new trial because his defense attorneys were ineffective, not because of any actions or inactions of the District Attorneys’ General’s office.”

Henderson agreed to plead guilty to a rules violation and accept a public censure, which is basically a symbolic slap on the wrist. Rimmer’s new attorneys are asking that the Shelby county DA’s office be removed from the case.

Today, the Commercial Appeal published an editorial calling for District Attorney General Weirich to remove her office from the case. The editorial, in commenting on Weirich’s assertion that Rimmer was awarded a new trial based on ineffective assistance of counsel and not misconduct by her office, states, “That may be, but the bigger problem is that one of her top prosecutors cheated, in our world -respected judicial system that is intolerable, in our judicial system honesty, integrity and a strict adherence to the rules of court procedure are sacred.”

Sadly, this kind of conduct is not isolated. In fact, other Shelby County death penalty cases were referenced in the original complaint against Henderson, and numerous cases exist of exonerated individuals across the nation sent to prison or death row who were convicted, at least in part, because of such misconduct. A disturbing article by Radley Balko also demonstrates that such behavior is more common than we would like to admit.

How can anyone trust our system to determine who lives and dies when those who are sworn to follow the rule of law bend the rules, and worse,  just don’t tell the truth?  This most recent revelation from the Shelby County DA’s office, a county which sends more people to death row than any other county in our state (40% of death row comes from Shelby County) and is the 13th county nationwide in the numbers of people sent to death row, should be a wake-up call to everyone. We cannot trust this system to make life and death decisions for anyone, particularly when we have alternatives available. Rather than moving to resume executions, this troubling example is another reason why Tennessee should instead be moving to repeal the death penalty.

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