Brady, With A Double Dose of Banal Failure

While the non-lawyer narrators try to scam the unwary into believing that a campus adjudication is all about one trick or another, one problem and failure, at it’s close enough, the “real McCoy” criminal justice system goes on its merry way. Courts provide the fully array of due process protections. Guilt is determined under the “beyond a reasonable doubt standard.” If college trials are good enough, these must be so spectacularly fair that there is no chance anything could go wrong.

A major piece in the New York Times magazine by Emily Bazelon dissects the conviction of Noura Jackson for the murder of her mother. Jackson was 18 at the time and a bit of a ne’er do well, especially if the only things you knew about her were the bad things. But as with most murders that get on the radar, pressure mounted for the police to find her mother’s killer, mostly because people watch too much TV and think cops can actually investigate things, have magic CSI voodoo or a sixth sense that informs them that the butler did it in the library with a candelabra. But action was demanded, and something had to be done.

With concern about the case mounting — ‘‘Mystery Stabbing Death Unsolved,’’ local ABC news reported that August — the case went to Amy Weirich, who at 40 was a rising star in the Memphis prosecutor’s office. A long-­distance runner and the mother of four children, Weirich was a former chief of the gang-­and-­narcotics unit and the first woman to be named deputy district attorney in Shelby County. She was considered a highly skilled trial lawyer.

At 28 years of age, someone can be a “rising star.” At 40, one is a dinosaur in a district attorney’s office. But since Amy Weirich is the goat of the story, a little melodrama is needed to cast the villain. And Weirich, “highly skilled” or not, earned her castigation.

The police came to arrest Noura that September as she was finishing up a babysitting job. She had no history of violence, and the case quickly became a local sensation. Weirich asked for a life sentence. The judge, Chris Craft, eventually set a bond of $500,000. Unable to pay, Noura spent a total of three and a half years in jail awaiting trial, on a heavy regimen of anti-­anxiety and antidepressant medication.

Murder is as heavy a charge as it gets, and three and a half years in jail awaiting trial is a very long time.  This particularly so when there’s nothing but narrative, a story of why, without evidence to back it up. And with evidence to show it’s false.

Noura’s DNA was excluded as a match for any of the three DNA profiles. But Weirich dismissed the absence of Noura’s DNA. The DNA results ‘‘didn’t point to anything, as DNA often doesn’t,’’ she told me in an interview this past spring. No physical evidence ever linked Noura to the killing.

Noura’s trial aired live on Court TV in February 2009. Over two weeks, Weirich called witness after witness to portray Noura as rebellious and angry. One neighbor said that in the weeks before the murder, she overheard Noura demanding money from her mother ‘‘in a rage.’’

A daughter fought with her mother. That never happens. But it was on the TV, which exerts a pressure that watchers can’t fathom to sate the audiences’ blood lust for justice.

In her final argument, Weirich stood facing Noura and raised the question the defense left unanswered by discouraging Noura from testifying. ‘‘Just tell us where you were!’’ she shouted, throwing up her hands in a gesture of impatience. ‘‘That’s all we are asking, Noura!’’

This could be a line from any TV melodrama, the sort that appeals to the passions of the crowd. At trial, not so much, as it shifts the burden of proof to the defendant and is flagrantly improper. In Bazelon’s telling, it just hangs there, unexamined.

Five days after the verdict, a note passed to prosecutors during trial, by Andrew Hammock, the only witness who puts Jackson at the scene, is disclosed. He was ‘‘rolling on XTC.’’ Instead of immediately turning it over to the defense to use on cross, it was stuck inside a notebook and forgotten. Oopsie.

On Aug. 22, 2014, the Tennessee Supreme Court unanimously overturned Noura’s conviction. ‘‘It is difficult to overstate the importance of this portion of Mr. Hammack’s testimony,’’ the justices wrote, pointing out that no DNA evidence linked Noura to the crime scene and that the ‘‘blood of unknown individuals’’ was ‘‘present in the victim’s bed.’’

So this was all about the undisclosed note, as Bazelon then launches into a deep dive about Brady material. And, indeed, the Brady violation was flagrant and significant. But for the sake of illuminating the failure of a legal system that held Noura Jackson in jail, then prison, for nine years before her conviction was reversed for a Brady violation, this was at best a missed opportunity. At worst, it makes people more simplistic, even stupider, about the failure of the system.

Noura Jackson was convicted on circumstantial evidence, an emotional narrative and no evidence. And she was convicted nonetheless. What strikes a lawyer reading Bazelon’s story is the series of banal, ordinary errors that are seen in almost every trial. This was a chance to dissect how each failure, each error, happens and builds upon itself. This was a chance to show that even in a criminal trial before a real judge, in a real court, with real rules and the full panoply of constitutional protections, how easy it is for all of it to fail.

With or without the Brady violation, Noura Jackson should not have been convicted. She shouldn’t have been arrested, She shouldn’t have been prosecuted. And there is no way if this system worked a tenth as well as we want to pretend it does, she should have been convicted.

And then there was the Brady violation on top of it.

Local news asked Weirich what she thought of Bazelon’s story, which she claimed she hadn’t yet read. Weirich responded.

“To push an agenda of pro-crime, anti-police, anti-prosecutors,” she said.

This is what it’s reduced to, the most simplistic and reductivist of slogans conflating legal impropriety with being pro-crime. One might expect better of a “rising star,” but then, when all public discussion is reduced to the lowest common denominator, ad hominem platitudes are good enough.

Actually, they’re as good as it gets, since anything deeper will bore you and make your head hurt. Nobody, Weirich or Bazelon, wants to make people’s head hurt from thinking too much about law.

18 thoughts on “Brady, With A Double Dose of Banal Failure

  1. Jake

    I would say something like Weirich’s callous disregard for the depth of her mistake is exceptional but the truth is she seems (to me) like exactly what you get in an adversarial system that favors victory over truth-seeking.

    The search for justice writ-large may be naive, but I don’t believe half-measures are going to fix this system.

    1. SHG Post author

      Everyone believes they’re on the side of “justice writ large,” Jake. There’s a dead women. Somebody murdered her. What about that? What about her killer? How can you be so sure that Noura Jackson didn’t murder her mother for the money? Her own family believes she did. What makes you think Weirich doesn’t believe, honestly and sincerely, that Noura Jackson is a killer? Justice is a funny thing, pal. Everybody thinks they own it.

      1. Ross

        Everyone thinks they are on the side of justice, and demand a resolution to every crime, with a convicted defendant languishing in prison. Too many are unable to understand that we don’t always get an answer, and that justice means we sometimes don’t get a result that anyone is happy with. I remember the folks demanding the head of George Zimmerman for “murdering” Trayvon Martin, even though there wasn’t enough evidence to convict, since only two people knew the truth, and one was dead and the other wasn’t talking. Not really a satisfying resolution, but still the correct one.

      2. B. McLeod

        Well, Noura Jackson may or may not be a killer. Either way, we have rules for how that is determined, and Weirich didn’t follow them. As I mentioned in relation to a recent faux pas by a certain ACLU lawyer, there are few circumstances in which a lawyer is permitted to directly address remarks to an opposing party. Closing argument is not one of them, and that should have been a clue to Weirich in and of itself. Impermissibly commenting on the defendant’s decision not to testify moved the needle even further into the misconduct zone. Credentials aside, Weirich was profoundly unprofessional.

        I have been on both sides of criminal trials, and it is hard for me to understand how so many colleagues seem so unable to follow basic and well-defined rules when they are prosecuting a case. It just shouldn’t be that difficult to avoid these massive departures from ethical conduct. It just shouldn’t.

  2. Richard Kopf


    “Banal” is the perfect word choice for the series of errors and that includes the Brady violation. I wonder how many readers who are not CDLs will truly understand what you mean and the significance of your point. No matter, they have the New York Times magazine and Emily Bazelon to give them the Cliff Notes version.*

    All the best.


    * CliffsNotes was started by a Nebraska native named Clifton Hillegass in 1958. At that time, as now, there was either not enough or too much sex in Nebraska.

  3. Dan

    ‘‘Just tell us where you were!’’ she shouted, throwing up her hands in a gesture of impatience. ‘‘That’s all we are asking, Noura!’’

    How did that not result in a mistrial?

    1. SHG Post author

      Somebody has to object. Somebody has to rule. On topic question is how come Bazelon fails to note this as a huge flaw.

      1. Neil Faiman

        Bazelon does report:

        The justices also overturned the verdict against Noura for another reason — Weirich’s closing exclamation in front of the jury demanding: ‘‘Just tell us where you were! That’s all we are asking, Noura!’’ The Constitution’s protection of the right to remain silent means that a defendant’s decision not to testify ‘‘should be considered off limits to any conscientious prosecutor,’’ the Tennessee justices wrote, so that the jury doesn’t view it as an implicit admission of guilt. Weirich was ‘‘doubtless well aware’’ of the rule, the justices added in a striking footnote, citing three previous cases in which appellate judges criticized her and her office for making prejudicial statements to the jury.

        1. SHG Post author

          Yes, eventually, secondarily and underwhelmingly. As I note, a “huge flaw,” not just, “oh yeah, this too.”

      2. Onlymom

        Seems to me the final authority in the court room is the judge. Even if the defense failed to object the judge should have moved at that point to inform the DA you had no real evidence no DNA and with this question you know is improper at a minimum this case is done with prejudice

        1. B. McLeod

          It is not infrequent for courts to allow (and appellate courts to uphold) convictions on circumstantial evidence. If there weren’t prosecutorial misconduct issues here, this conviction probably would not have been vacated simply on the poor quality of the evidence.

  4. Pingback: An interesting justification for a Brady violation — Court-Martial Trial Practice Blog — August 5, 2017

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