CBMS Attorney Secures Plea Deal that Removes Pro Bono Client from Tennessee’s Death Row After 18 Years

Capell Barnett Matalon & Schoenfeld LLP attorney Elizabeth Cate recently successfully negotiated a favorable plea agreement for a CBMS pro bono client who was facing the death penalty for the second time on capital murder charges in Memphis, Tennessee. As the ABA Death Penalty Project noted “a term-of-years plea deal for a reduced charge on a remand capital case is extremely rare.” Ms. Cate and her co-counsel also uncovered new evidence that will provide the client, Andrew Thomas, with a basis to challenge his federal convictions and life sentence on charges stemming from the same 1997 armed robbery for which he faced charges in Tennessee state court.

Under the plea agreement, reached on the morning that opening arguments in Mr. Thomas’s re-trial were scheduled to begin, Mr. Thomas entered an “Alford plea” to one charge of Murder in the Second Degree and in return, the Shelby County District Attorney’s Office agreed to a sentence of 25 years. An “Alford plea” is a guilty plea under which the defendant does not admit that he is guilty of the crime charged, but admits that, if he went to trial, the evidence presented by the prosecution would likely result in his conviction. Under local rules, Mr. Thomas will receive credit for the 22 years he has already served in custody, making him eligible for release from state custody within the next three years.

Ms. Cate began working on Mr. Thomas’s federal and state habeas corpus petitions in 2013 while at her prior firm, which acquired the case through a referral from the ABA Death Penalty Project. In 2017, she and her team successfully vacated Mr. Thomas’s state conviction and death sentence for felony murder charges in the Sixth Circuit Court of Appeals. A panel of the Sixth Circuit found that Mr. Thomas’s conviction and death sentence should be reversed because the state prosecutor had a duty to disclose to Mr. Thomas’s trial counsel a $750 payment that law enforcement made to Mr. Thomas’s ex-wife after her testimony against him at his 1998 federal trial on armed robbery and weapons possession charges relating to the 1997 armed robbery. Mr. Thomas’s ex-wife also testified at his state trial for capital murder charges three years later stemming from the delayed death of the armored car guard shot during the robbery. Mr. Thomas’s lawyers in both of his trials were never told about the payment. The Sixth Circuit found that “the prosecutor had a duty to disclose this payment rather than allow the witness to commit perjury by denying its existence” and that failing to disclose this evidence was “particularly egregious.”

A re-trial in Shelby County criminal court was scheduled for July 2019. Ms. Cate, along with appointed Memphis counsel Claiborne Ferguson and Mike Working, were prepared to challenge the state’s claims that he shot the guard in the robbery and that the guard’s eventual death over two years after the shooting was a direct result of the gunshot wound inflicted during the robbery. After four days of jury selection, and extensive negotiations with the Shelby County DA’s Office, the prosecutor agreed to the deal that Ms. Cate and local counsel proposed – an Alford plea to Murder in the Second Degree with a 25-year sentence.