IN DISCIPLINARY DISTRICT IX OF THE FILED BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE —-@016 0CT 24 PM 4? 45. BOARD OF FROF ESEIDUAL INRE: AMY P. WEIRICH RESPONSIBILITY BPR No, 14441, Respondent, DOCKET NO, 2015-253: AOS SEF An Attorney Licensed to Practice ¢ yer Law in Tennessee (Shelby County) REPLY OF AMY WEIRICH TO BOARD’S RESPONSE TO HER MOTION FOR SUMMARY JUDGMENT ‘The Board’s Response to Mrs. Weirich’s Motion for Summary Judgment fails to address the substance of her motion. First, the Board’s Response addresses an issue that is not even advanced by Mrs Weirich. The Flowers decision does indeed hold that the identity of a complainant is not necessarily significant and Mrs, Weirich has never contended otherwise, True, Mr. Shelton is not a lawyer and, true, he is a close personal friend of Noura Jackson. But, all other relevant factors aside, he does have standing to make a complaint, However, as the Panel will surely note, Mr, Shelton’s standing has no bearing on Mrs, Weirich’s motion. Next, the Board argues that, in effect, it is a “stand alone” entity in the disciplinary process and can proceed regardless of what the Supreme Court (and the other judges) have done. Again, the Panel will surely note that this is simply incorrect, The Board is an arm of the Supreme Court. Critically, ALL public discipline (as sought here) MUST ultimately be reviewed and approved by the Supreme Court, What the Supreme Court considers to be unethical behavior is, at the end of the day, the be-all and end-all of the disciplinary process. Indeed, as the Supreme Court stated in Flowers Court is the final and ultimate arbiter of the propriety of the professional conduct of all lawyers practicing in Tennessee.”Next, the Board argues that there are factual issues that defeat Mrs. Weirich’s motion. But the Board never identifies what factual issues there might be and, indeed, there are none, as will be discussed once again below. All of which leads to why Mrs. Weirich’s motion must be granted: ‘The Board argues that disciplinary issues were not before the judges and that they therefore did not consider them, This argument misperceives, first, what Rule 2.15 requires and, second, what the undisputed facts establish. Rule 2.15 does not require that a judge resolve an ethical issue, Rather, it requires that if!a judge has reason to believe that an ethical violation has occurred or might have occurred, he/she shall take appropriate action, such as a referral to the Board, The disciplinary process might then result in various outcomes but the referral from the court is, under appropriate circumstances, the ial step, an indication that there is reason to believe that an ethical violation has occurred or may have occurred. Obviously, the court’s resolution of this preliminary issue would not be discussed in its opinion, With all of this as background, it is absolutely clear that if Rule 2.15 is to have any meaning, it must be applied in this matter. To repeat, at every stage of the criminal proceeding the facts conceming Mrs, Weirich’s rebuttal argument were fully known and, eritically, their import was fully considered, The trial court specifically considered the nature of Mrs. Weirich’s trial conduct in its entirety and as it specifically related to her rebuttal argument, All of this was in the record considered by both the Court of Criminal Appeals and the Supreme Court, In the Court of Criminal Appeals, the two concurring judges discussed, but ultimately did not opine on whether Mrs. Weirich’s argument ‘was a mistake or intentional. Which leads to the Supreme Court, ‘The Supreme Court’s opinion is itself, of course, ample proof that the ethical issues surrounding Mrs. Weirich’s rebuttal argument could not have been outside the court’s 2contemplation. But the extended record makes that conclusion even clearer. In the very first page of Noura Jackson's Supreme Court Brief, (See Exhibit | to the Affidavit of Jef Feibelman) there is reference to “prosecutorial misconduct”; in the last page of her Brief there is reference to “prosecutorial misconduct.” And there are many other such references in the intervening pages. Here, Mrs, Weirich is charged with a violation of Rule 8.4, a rule adopted by the Supreme Court itself. And what is the caption of Rule 8.4? MISCONDUCT. Itis simply not credible to say, as the Board in effect does, that Rule 2.15 did not come into play. If it did not come into play here, it will NEVER come into play. Rather, the only reasonable inference is that, problematic as the Court thought it was within the context of the Nouta Jackson trial, the Supreme Court (and the other judges) did not think that the conduct of Mrs. Weirich could reasonably be considered a disciplinary violation, Here, the Board seeks to second guess the nine judges who were fully aware of all of the facts and their ramifications and such second-guessing, of course, cannot be permitted. If Mrs. Weirich is wrong in her motion, the Board would have a right to appeal and the Supreme Court could itself address the issue for a second time. However, as is apparent, itis unlikely to reach a different result. Respectfully, Mrs. Weirich’s Motion for Summary Judgment is well taken and should be granted. Respectfully submitted, BURCH, PORTER & JOHNSON, PLLC n (#7677) Court Avenue Memphis, TN 38103 ‘Telephone: (901) 524-5109 Email: jfeibelman@bpjlaw.com Counsel for Respondent Amy P. WeirichCERTIFICATE QF SERVICE | certify that a copy of the foregoing has been served upon Chief Disciplinary Counsel Sandy Garrett and Deputy Chief Disciplinary Counsel Krisann Hodges, Tennessee Board of Professional Responsibility, 10 Cadillac Driyg, Suite 220, Brentwood, Tennessee 37027, by First Class US mail, postage prepaid on this gf / ' “day of October, 2016 SGIN DISCIPLINARY DISTRICT IX OF THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE INRE: AMY P, WEIRICH BPR No, 14441, Respondent, DOCKET NO, 2015-2533.9-KH An Attorney Licensed to Practice Law in Tennessee (Shelby County) AFFIDAVIT OF JEF FEIBELMAN STATE OF TENNESSEE COUNTY OF SHELBY I, Jef Feibelman, do hereby state under oath that Exhibit 1 hereto consists of true and accurate copies of Page 1 and Page 51 of the Brief filed in the Tennessee Supreme Court on behalf of Noura Jackson in the matter of State of Tennessee v, Noura Jackson, My Commission Expires: oeCERTIFICATE OF SERVICE L certify that a copy of the foregoing has been served upon Chief Disciplinary Counsel Sandy Garrett and Deputy Chief Disciplinary Counsel Krisann Hodges, Tennessee Board of Professional Responsibility, 10 Cadillac Driyg, Suite 220, Brentwood, Tennessee 37027, by First Class US mail, postage prepaid on this 2 "ay of October, 2016, LPREAMBLE, ‘The voluminous record of Defendant’s two week trial cannot obscure the prejudicial errors which require reversal of her convietion for second degree murder, The Court of Criminal Appeals? affirmance of the Trial Court's erroneous rulings contravenes due process of law and the conviction of Defendant resulting therefrom is a miscartiage of justice. Questions of law raised in the Trial Court were subject to an improper standard of review by the Court of Criminal Appeals. Important issues involving the due process protections afforded by the rule of law in Brady, Giglio, and Jencks; by the attorney-client privilege; by the Fifth Amendment; by prohibitions sein feosorril moma rebuttal; by reliance on character evidence received inadequate evaluation when an improper standard of review was applied to reach an interpretation of law that erodes constitutional protections and prejudiced Defendant's right to a fair trial, compelling reversal in deference to principles of due process, So too, was Defendant's enhanced sentence an improper exercise of judicial authority contrary to Sixth Amendment jurisprudence. In this appeal, Defendant will demonstrate that fundamental fairness was absent in the proceedings which resulted in her conviction for her mother's murder Page 1 of 52PRAYER FOR RELIEF ‘Multiple violations of Defendant's constitutional rights resulted in prejudice to Defendant in her trial for the first degree murder of her mother and in her sentencing after convicted for second degree murder, The Trial Court erroneously: admitted evidence which was unconstitutionally obtained in violation of Fifth Amendment and Sixth Amendment guaranties of the U.S, Constitution and the corresponding provisions of Article I, § 9 of the Tennessee Constitution; violated the Defendant’s attorney-client privilege in permitting testimony by the attorney Defendant consulted to Defendant’s injury; allowed a dozen witnesses to testify to scores of uncharged drug crimes and bad acts of Defendant which were highly prejudicial and only superficially suggestive of the State's ever-changing theories of motive which were the premise for admissibility; condoned violations of Tenn, R, Crim, P, 16 and 26.2, Brady, Jencks, Giglio by the State, which concealed a witness’ impeaching, exculpatory written statement before trial, suppressed the staiement throughout trial, and after the witness who made the undisclosed statement testified; permitted the State’s inflammatory appeal to juror’s emotions and Cents to Defendant's failure to testify and explain where she was when her ‘mother was murdered, thereby impugning her presumption of innocence and improperly izing her for exercise of her Fifth Amendment right of silence; and ignoredGroseeutorad> CeiscondsDinctaing arguing as facts in evidence the 404(b) testimony introduced reputedly for state of mind, Defendant submits these errors cumulatively rendered the trial constitutionally and rit fundamentally unfair and contributed so the Trial Coust’s improper enhancement of Defendant's, sentence beyond the presumptive minimum without appropriate fact finding by the jury, For the foregoing reasons, Defendant prays that this Honorable Court reverse the Page SI of 52