Fibet IN THE DISCIPLINARY DISTRICT IX GITMAR~2 ABI: 3 BOARD OF PROFESSIONAL RESPONSIBILITY poe bcHSlaILtiy SUPREME COURT OF TENNESSEE — INRE: _ STEPHEN P. JONES, BPR #16764 DOCKET NO. 2016-2534-9-KH Respondent, an Attorney Licensed to Practice Law in ‘Tennessee (Shelby County) FINALORDER B. UND This proceeding originated in the prosecution of Noura Jackson for the stabbing death of her mother, Jennifer Jackson, on June 4-5, 2005. The prosecution had been pending for a considerable time when, in 2008, Amy Weirich, then Assistant District Attorney General for the Thirtieth Judicial District of Tennessee, asked Respondent Stephen Patrick Jones, also an Assistant District Attomey General, to assist as “second chait” in the trial of State of Tennessee v. Noura Jackson, a prosecution for murder, first degree. Respondent Jones assisted in the prosecution from approximately two months before trial through post-trial proceedings. Defense counsel Arthur Quinn and Valerie Corder, before trial, asked for “exculpatory evidence and information” in serial pre-trial motions which both preceded and followed entry of Respondent Jones into preparation of the State’s case. Well before trial began, the prosecution disclosed to defense attorneys two “statements” prospective witness Andrew Hammack made to detectives during the investigation of the homicide," At all times relevant to the trial testimony of Hammack, defense counsel possessed copies of Hammack’s statements to police and a | These statements are attached hereto as Exhibits 1 and 2,supplemental report? which summarized a discussion between Detective Mark Miller and Hammack and which referred to a handwritten note created by Hammack. About midway through trial, during a recess on Sunday, February 15, 2009, Respondent Jones, who was preparing direct examination of Millet, noted the reference to Hammack’s handwritten note in the supplemental report (Exhibit 3). The reference in the supplemental report was to a handwritten note brought voluntarily by Hammack to Miller on June 13, 2005, shortly, before Miller’s assignment to other duties removed him from the investigation. The investigation file in the hands of Respondent Jones at mid-trial on February 15, 2009 did not contain the handwritten note mentioned in the supplement, so he asked an investigator with the District Attomey General’s Office to seek it out. Respondent Jones received the handwritten note on Monday, ‘ebruary 16, 2009, before trial proceedings resumed, Respondent Jones, who had not seen the handwritten note before, read it and then placed the original note in a “flap” of a trial notebook. He intended to, but did not, provide a copy of the note to defense attorneys nor did he tell Weirich about the handwritten note. Per the handwritten note, during the relevant time period, Hammack was “rolling on ecstacy” during the night/morning of June 4-5, 2005. At trial, Weitich conducted direct examination of Hammack, and Quinn conducted all cross-examination of Hammack.‘ Quinn did not ask at trial for “Jencks” statements after direct examination and before ctoss-examination. ‘The transcript of Hammack’s testimony does not contain met n of Tenn. Code Ann, § 40-17-120 requiring produetion to opposing counsel upon 2 This supplemental report is attached hereto as Exhibit 3. 3 The handwritten note is attached hereto as Exhibit 4 4 ‘The transcript of Hammack's testimony is attached hereto as Exhibit 5their motion of “any” statement of a testifying witness which relates to the subject matter of the witness's testimony. It must be noted there was no direct or eyewitness testimony at trial regarding the death of Jennifer Jackson, The State's case was circumstantial, Tennessee’s Patter Jury Instructions describe circumstantial evidence: Circumstantial evidence is indirect evidence that gives clues about what happened. Circumstantial evidence is proof of a fact, or a group of facts, that causes the conclusion that another fact exists ‘The uncontradicted and uncontroverted portions of Hammaok’s testimony indicate: (1) Hammack never went to th 5, 2005; ene of the stabbing of Jennifer Jackson on June 4- (2) Hammack never saw in person Noura Jackson on June 4-5, 2005; (3) All contact on June 4-5, 2005, between Defendant Noura Jackson and Hammack was by telephone by either (a) brief conversations or (b) text messages or (c) an unanswered call; (4) Hammack admitted on direct examination and cross-examination at trial that he ‘was intoxicated; (5) Oneross-examination Hammack additionally admitted he smoked marijuana, ‘The apparent primary purpose for the prosecution to call Hammack as a witness was to place the content of telephone conversations and the time of conversations or texts into the record. Hammack testified that his first conversation on June 4-5, 2005, was “between 10 and 12” and that Jackson “wanted to meet up or whatever” at her house. Hammack also recalled a telephone conversation with Jackson “earlier that night” about her being at Eric’s house and Jackson’s wish to meet Hammack at her house. A juror interrupted direct examination asking Hammack to clarify “which date this was in 2005." Hammack responded, “June 5*.” He did not recall, however, the exact timeframe,eventually placing the time as after an earlier conversation with Jackson about her being “at Brie’ ’s house.”’ Hammack’s testimony then placed “the first conversation” at between 12:00 and 2:00, and the other conversation as “maybe 4ish.” On cross-examination, Quinn procured Hammack’s agreement that Jackson called him sometime “between 11:00 p.m. and 1:00 a.m.” and subsequently that Jackson was asking Hammack to come over to her house “at 1, not only at, 4 or 5 or whatever your testimony was.” On re-direct examination, Weirich asked Hammack if Jackson called him at 4:47 a.m, on June 5, 5:00 a.m., 5:01 a.m., 5:02 a.m., 5:03 a.m., and 5:06 a.m. to which Hammack responded, “T really don’t remember.” A second juror asked for repetition of the times of calls, to which Mr. Hammack responded, “I know I didn’t talk to her six times in a row.” In sum, Hammack’s only contact with Jackson was by a form of telephonic communication; he never saw her in person, was admittedly intoxicated, and was vague about the timing and order of texts and calls. Separate interjections by jurors focused on times as recorded by telephone company computer equipment, Respondent Jones testified that he forgot about the note until he-came across it again in the notebook’s “flap” after trial ended and while he was putting the file in order. Trial ended on Saturday, February 21, 2009, Respondent Jones filed a “Notice of Admitted Jencks Statement in Relation to Testimony of Andrew Hammack” on Thursday, February 26, 2009. A copy of the handwritten note was attached to the notice, and Respondent Jones sent copies of the filing to defense attorneys contemporaneously. Almost five months later, on July 17, 2009, the Trial Court entertained the Motion for New Trial, presented by defense counsel! on behalf of Jackson. Their Motion for New Trial 5 Jackson's friend, Bric Whitaker, was a witness a trialincluded an assignment of error grounded on the prosecution’s post-verdiet disclosure of the handwritten note. The Trial Court denied the Motion for New ‘Trial insofar as matters relating to the handwritten note were concerned. Jackson appealed her conviction by the trial jury for murder, second degree to the Tennessee Court of Criminal Appeals, which affirmed the verdict and post-trial decisions of the Trial Court. Jackson then appealed to the Supreme Court of Tennessee and again designated non-disclosure of the handwritten note as error of constitutional dimension meriting reversal. On August 22, 2014, the Supreme Court of Tennessee reversed Jackson’s convietion and remanded the case for re-trial in part because the prosecution’s failure to disclose the handwritten note of Hammack to defense counsel before his testimony violated the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. State of Tennessee v. Noura Jackson, 444 S.W.3d 554 (Tenn, 2014). Shortly after the decision of the Supreme Court of Tennessee, William Shelton, a resident of Germantown, Tennessee, filed a complaint with the Tennessee Board of Professional Responsibility complaining, among other things, of the ethical and professional conduct of Respondent Jones with respect to the handwritten note of witness Hammack. The Board of Professional Responsibility thereafter filed formal proceedings against Respondent Jones. DUR, This Panel previously entered summary judgment in favor of Respondent Jones with regard to several of the counts asserted by the Board of Professional Responsibility. As such, this, Panel considers the application of the facts of this case to the remaining counts: Rules of Profe ‘Tenn mnal Conduct 3.8(d): ‘The prosecutor in a criminal case: (A) shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense ..‘Tennessee Rule of Professional Conduct 8.4(a)(d): It is unprofessional conduct for a lawyer to: . (a) violate or attempt to violate the Rules of Professional Conduct, knowingly exist or induce another to do so, or do so through the acts of another. @ engage in conduct prejudicial to the administration of justice. ANALYSIS. 1 Did Hammack’s handwritten note tend to negate guilt or mitigate the offense? The somewhat lengthy rec n of the facts of the Jackson prosecution is necessitated by the language of RPC 3.8(d), which requires disclosure by the prosecutor of “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.” Thus, the prosecutor's duty pursuant to RPC 3.8(d) is triggered only by evidence that negates guilt or mitigates the offense. If Hammack’s handwritten note did not negate guilt or mitigate the offense, RPC 3.8(d) has no application. In testimony before the Panel, Respondent Jones described the circumstantial case as a “jigsaw puzzle.” Telephone records introduced at trial and noted in the opinion of the Tennessee Supreme Court showed Jackson called Hammack from her cell phone at 12:55 a.m, on June 5. Another of Jackson’s friends, Clark Schifani, received a hang-up call from the landline of the home of the Jacksons at 12:59 a.m, At 1:09 a.m., Schifani received a call and a voicemail from Jackson’s cell phone number. Jackson called her boyfriend, Perry Brasfield, at 1:00 a.m. for a ‘two minute conversation and again at 1:06 a.m. for another two minute conversation, At 3:00 a.m,, Jackson called Erie Whitaker who encountered Jackson at the end of his driveway shortly afterwards.Jackson was captured on store cameras at 4:01 a.m. entering a Walgreens store at Poplar Avenue and Massey Road, where she made a cash purchase of bandages and antiseptic. At 4:20 am, , video footage at 6646 Poplar Avenue showed Jackson making a credit card purchase of, gasoline. Telephone records introduced at trial established a time of two hours five minutes between 1:13 a.m, and 3:18 a.m, on June 5, 2005, in which Defendant did not text or call, but her cell phone received a text at 2:11 am. Police officer Mark Miller recorded telephone numbers dialed from the landline number of the Jacksons, ‘The last number shown on the home landline phone was the cell phone number of Hammack. The last number on Jackson's cell phone also was the cell phone of Hammace! ‘The trial record shows, even without mention of ee: y, that Hammack was impaired in his ability to form and recall memories of events. His answers were vague about the timing of events and his statements contained an admission that he had disordered them. Hammack’s testimony was self peaching, and Mr. Quinn emphasized Hammack’s unreliability on cross~ examination. Based on the foregoing, reasonable minds could, and have, differed as to whether Hammack’s handwritien note tends to negate guilt or mitigate the offense. Trial Court Judge Craft had an opportunity to view all of the evidence at trial, to assess the credibility of the witnesses who testified, and to weigh the relative strengths of the arguments of the parties. In testimony before this Panel, Judge Craft testified without hesitation that, in his view, the handwritten note did not tend to negate guilt or mitigate the offense. As noted above, however, the Tennessee Supreme Court eventually ruled that Jackson’s convi fon was constitutionally unsound. Significantly, the Supreme Court based its decision, not only on the failure of theprosecution to timely produce the handwritten note, but also on other actions of the prosecution that are not before this Panel. As such, it is not clear whether the Supreme Court would have reversed Jackson’s conviction in the absence of these other actions. ‘The Board of Professional Responsibility has directed this Panel's attention to ABA Formal Opinion 09-454 (July 8, 2009), which provides that “evidence or information ordin: ly will tend to negate guilt of the accused if it would be relevant or useful to establishing a defense or negating the prosecution's proof.” ‘The Board of Professional Responsbility argues that the handwritten statement could have been used for impeachment purposes and to establish that Hammack was under the influence of ecstacy. On the other hand, Hammack had already admitted to being intoxicated, and there were several other inconsistencies in his testimony. Further, to the extent Hammack’s primary value as a witness was essentially to “authenticate” the phone records, his credibility and the nature of his intoxication would not have been particularly helpful to Jackson. The Panel has had a great deal of discussion as to whether the handwritten statement qualifies as evidence that tends to negate guilt or mitigate the offense but is also mindful that criminal defendants should have the opportunity to determine for themselves how best to use the evider available to them. is Panel cannot predict all of the ways in which resourceful defense counsel could have made use of the handwritten note, had it been timely produced in this, entirely circumstantial case. Fortunately, the remainder of our analysis of this matter obviates the need for the Panel to reach a firm conclusion with regard to this element. I Is there a mens rea element to violations of RPC 3.8(4), RPC 8.4(a), and/or 8.4(d)? One of the primary questions facing this Panel is the extent to which Rules of Professional Conduct 3.8(d), 8.4(a), and 8.4(d) incorporate a mens rea element. The plainlanguage of these Rules is devoid of such an element, and it would be tempting to merely hold that, had the drafters of the Rules wanted there to be a mens rea element, they would have said 0. Indeed, the Board would have this Panel apply principles of strict liability and only consider Respondent Jones’ mental state in assessing the appropriate sanetion to be imposed, ‘There are no guiding or controlling judicial decisions by Courts in Tennessee which apply Tennessee Rules of Professional Conduct 3.8(d) and 8.4 to prosecutors. The parties have directed this Pane! to the decisions of courts of s ler states that have analyzed these provisions or rules that are substantially similat. For example, in In re Attorney, 47 P3d 1167 (Colo. 2002), the Supreme Court of Colorado decided “to read the rule itself as including the mens rea of intent.” In re Attorney, 47 P.3d at 1174. On the other hand, in In re Jordan, 913 So.2d 775 (La. 2005), the Supreme Court of Louisiana specifically noted that, although Rule 3.8(4) does not incorporate “a mental element,” the rule on sanctions does. As such, the Supreme Court of Louisiana did not consider intent for purposes of determining whether there had been a violation but did consider intent for purposes of assessing sanction. In re Jordan, 913 So.2d at 783-84. When the Supreme Court of North Dakota considered the question, and the two cases previously cited, it concluded that violations of Rule 3.8(d) are not limited to intentional conduct but could also reach conduct related to “a knowing or negligent failure to disclose.” Disciplinary Action against Feland, 820 N.W.2d 672, 678-81 (N.D. 2012). Having considered the eases relied upon by the Parties and the argument of counsel before the Panel, this Panel holds that Rule 3.8(4), 8.4(a), and 8.4(4) contain an implied scienter clement. In other words, these are not Rules of strict liability. Notwithstanding the mandatory 6 In this regard, the Panel notes that itis not authorized to find that Respondent Jones committed a technical violation without assessing, atthe very least, the sanction of public reprimand. Tiwi. Sun. Cr. R. 9, § 15.4(a). The Preamble and Scope to Rule 8 of the Tennessee Supreme Court Rules states that “the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previous violations.” (emphasis added) Nevertheless, pursuant to the portion of Rule 9 cited above, this Panel lacks thenature of the language used, the Preamble and Scope to Rule 8 provide that “[tJhe Rules of Professional Conduct are rules of reason. ‘They should be interpreted with reference to the purposes of the legal representation and of the law itself.” ‘The purposes of the rule requiring prosecutors to turn over exculpatory evidence are well- established, but they will not be furthered by analyzing these Rules as mandating strict liability Indeed, Rule 3.8(¢), by its own ter 's, only applies in the context of evidence or information “known by the prosecutor that tends to negate the guilt of the accused ot mitigates the offense..." The Rules require that, when a prosecutor knows of such information or evidence, it must be disclosed. If a prosecutor fails to make this disclosure due to pure inadvertence, there ‘would seem to be litle value in using the attorney discipline process as a means of redress; such discipline would not impact the case in which the failure to disclose occurred and would seem to have no deterring effect (again, assuming that the failure to disclosure was truly inadvertent). This is not to say, of course, that there are no consequences for inadvertent mistakes, A prosecutor who fails to disclose exculpatory evidence will likely see a reversal of convictions, which would, in turn, likely lead to job-related consequences. In addition, there would likely be significant reputational detriment to an attorney who proves incapable of avoiding even inadvertent violations of these Rules. None of these matters, however, are before this Panel. With regard to the specific question of violations of the Rules of Professional Conduet at issue, this Panel concludes that there should be no professional sanction associated with an isolated, inadvertent violation of Rules 3.8(d), 8.4(a), or 8.4(d).7 diseretion to find, for example, that Respondent Jones committed a violation of a strit liability rule but that, under the circumstances, no sanction is warranted 7 The Pane! notes that, unlike other jurisdictions which have analyzed violations of these rules under principles of strict liability, Tennessee only requires a showing “by a preponderance of the evidence” (as opposed to a higher evidentiary standard) that an attomey has violated ethical rules,Turning now to the facts of the matter before it, this Panel concludes that Respondent Jones’ account of his treatment of Hammack’s handwritten note is entirely credible, In other words, this Panel credits Respondent Jones’ testimony that he briefly reviewed the note upon receiving it in the middle of trial, determined that it (like nearly all other documents in the prosecution’s possession) should be turned over to Jackson, placed the note in a trial notebook, and then forgot all about it until after trial had concluded. None of the evidence in this matter suggests that Respondent Jones acted inten nally. Nearly all of the witnesses attested to Respondent Jones’ integrity and candor, and even Jackson’s defense attorneys did not allege that Respondent Jones had intentionally withheld Hammack’s handwritten note.* Simply put, there is nothing in the record that would support a finding that Respondent Jones intentionally withheld Hammack’s handwritten note. Instead, this Panel credits Respondent Jones’ assertion that he intended to produce the note but then forgot. In other words, in the press of very busy and high profile trial, Respondent Jones made a mistake. It was a serious mistake with serious consequences; nevertheless, it was still an inadvertent mistake. ‘The Trial Court concluded, following the Motion for New Trial, that not disclosing Hammack’s handwritten note to defense counsel was both wrong and inadvertent. The Court of Criminal Appeals affirmed the decision. The Supreme Court of Tennessee concluded otherwise and reversed the two Lower Courts upon their conclusion that lack of knowledge of the handwritten note precluded its use impeaching Hammack and its potential basis in leading to discovery of other circumstances; however, the Supreme Court noted: 8 In order to conclude thet Respondent Jones acted intentionally, one would have to believe that he reviewed the document in question and determined that it was so helpful to the defense that he would withhold it but that it was ‘not so helpful to the defense that it would result in a reversal of the convietion when he disclosed it after trial, The Panel holds that such a belief would strain credulity,By our holding we do not disturb the Trial Coust’s finding that the prosecutor did not intentionally withhold Mr. Hammack’s third statement, ‘This Hearing Panel has no reason to disagree with, much less ineffectually to contra the conclusion of all reviewing Courts that omission in the delivery of the note to defense counsel ‘was either inadvertent or not intentional. ‘The Code of Judicial Conduct Rule 2.15 responding to Judicial and Lawyer Misconduct provides: “(B)_A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.” “(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.” Of all of the Judges who have considered this matter in the Trial and Appellate process, not one has seen fit to report Respondent Jones to the Board of Professional Responsibility. The absence of action by any of these Judges further supports the conclusion there has been no substantial question regarding his honesty, trustworthiness, or fitness as a lawyer, In point of fact, Respondent Jones’ disclosure to the Trial Court of Hammack’s handwritten note upon discovering his mistake reflects very favorably on his honesty, trustworthiness, and professionalism. This Panel finds, as a matter of fact, that Respondent Jones did not act intentionally or knowingly in failing to timely disclose Hammack’s handwritten note to defense counsel. ThePanel concludes, as a matter of law, that this lack of scienter compels the conclusion that Respondent Jones did not violate Rule 3.8(d), 8.4(a), or 8.4(d).° CONCLUSION Under our system of criminal justice, prosecutors have enormous power and exercise tremendous discretion; therefore, prosecutors must always be held to the highest ethical standards. Nevertheless, prosecutors are still human beings who make inadvertent mistakes. Although these mistakes could have grievous consequences to the prosecutors and, more ally, criminal defendants, there are other avenues for addressing those consequences. The Tennessee Supreme Court has already addressed and remedied the constitutional infirmities in Jackson's conviction. The purpose of these proceedings is to allow this Panel to evaluate whether Respondent Jones violated his obligations as set forth in the Rule of Professional Conduct, The Panel concludes that he did not."” / Hayden L s/Michael Tauer Hayden Lait, Hearing Panel Chair Michael Tauer, Hearing Panel Member 9 Because this Panel finds that, at most, Respondent Jones’ conduct amounts to negligent conduct, this Panel need not conclude whether a finding of knowing conduct, as opposed to intentional conduct, would constitute a violation ofthe Rs. 10 Further, Panel Members Lait and Tauer would note that they agree entirely with the rationale set forth in the ‘Concurring Opinion.Panel Member Leland McNabb joins in the result of the Final Order and has issued the following Coneurting Opinion Tagree with the result reached by my colleagues but wish to note supplemental reasons for reaching it. ‘The parties before the Hearing Panel had and have no substantial disagreement about salient facts 1, Respondent Jones should have disclosed the handwritten note of witness Andrew Hammack to defense counsel at the latest at the time the prosecution concluded direct examination of Hammack. 2. Respondent Jones did not do so. 3. Deseribing the handwritten note as an “omitted Jencks statement,” Respondent Jones disclosed it to the presiding Judge five days after the jury's guilty verdict and about five months before he: ing of Defendant Noura Jackson’s Motion for New Trial. 4. In. combination with other distinct trial errors, belated disclosure of the handwritten note led to reversal of the judgment of conviction and to remand of the charges for a new proceeding. ‘We examined these facts in light of the text of the Rules which the Board of Professional Responsibility insists Respondent Jones violated and in light of the statements of professional goals and aspirations contained in the Preamble and Statement of Scope of the Tennessee Rules of Professional Conduct: [10] ... Within the framework of these rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive, professional, and moral judgment guided by the basie principles underlying the rules ...[15] ... The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself, Some of the rules are imperatives, cast in terms of “shall” or “shall not.” ‘These define proper conduct for purposes of professional generally cast in the term “may” are permissive in defined areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion... [20] ... Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The Rules pte-suppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules pre- suppose that whether or not discipline should be imposed for a violation, and the severity of the sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previous violations. (emphasis added). Respondent Jones testified he did not consider the handwritten note to negate or to tend to negate Noura Jackson’s guilt, thinking the handwriting had insignificant or merely cumulative impeaching effect on Andrew Hammack’s testimony in the context of his other inconsistent statements and his admission about the effect of intoxication on his mentation. The Trial Court and the Tennessee Court of Criminal Appeals, four Judges in all, agreed and coneluded the handwritten note was not material to the outcome at trial, ‘The five Justi es of the Supreme Court of Tennessee disagreed. ‘They concluded that the note was exculpatory and material and should have been made known to defense counsel in time to have been employed in eross-examination and otherwise earlier for investigation seeking other evidence to which the handwritten note might have led,‘The procedural history of the underlying prosecution demonstrates that learned, detached legal minds with full knowledge of the trial record may disagree about whether the handwritten note was inculpating or exculpating or negating or validating of guilt, or, for that matter, material to the outcome, ‘The Board of Professional Responsibility emphasized its view of the importance of witness Andrew Hammack to the trial in Paragraph 15 of submitted proposed Findings of Fact: 15. Andrew Hammack was a witness for the State who had knowledge of Ms. Jackson's whereabouts on the night of the ‘murder, He was one of three people who were tested for DNA by the police department. Mr. Hammack was the only witness who could testify that Ms. Jackson told him she was at her house on the night of the murder. (emphasis added). ‘Noura Jackson’s trial involved assembly of bits of circumstantial evidence from many sources which the prosecution saw as a mosaic establishing its theory of events and her guilt. Among those bits of evidence were the many statements Noura Jackson made to her friends and to investigating detectives. Noura Jackson told Police Sgt. Justice that she called Andrew Hammack to meet her at her home to see her kitten, and that she did not call Hammack after she got home and discovered her mother’s body. Noura Jackson said to Justice she had arrived home between 4:00 a.m. and 5:00 a.m. Sunday, June 5, 2005. She told Sgt. Justice that she cut her hand on a broken bottle at a street festival on the preceding Friday, June 3, 2005. In a second interview with Sgt. Justice, Noura Jackson recanted a statement to Sergeant Justice about stopping at a Taco Bell restaurant on het way home on the morning of June 5, 2005. Defendant Jackson told her friend Perry Brasfield she cut her hand on glass while chasing her kitten through the kitchen, She told Caroline Giovannetti, also a friend, that she cut her hand on Friday at the street festival while intoxicated, however, Giovannetti told jurors she did not noticeat the street festival a cut on Defendant’s hand. Defendant also told Giovannetti she had driven by her home returning from a party around midnight, saw that lights were out, drove to Eric Whitaker’s house, and returned to find her mother between 4:00 a.m. and 5:00 a.m. Defendant Jackson gave Regina Hunt a different versi of her whereabouts, saying that she had gone home but had sneaked back out, Defendant Jackson told Genevieve Dix when Ms, Dix asked Defendant about telephoning Perry Brasfield from her home around 12:30 a.m. to 1:00 a.m. on. June 5, 2008, that she had driven by her home, noticed that lights were off, assumed Jennifer Jackson was asleep, and then drove to a boy’s house and did not return home until after 4:00 a.m. Extensive testimony was offered about telephone calls from telephone company records. Among the calls were: Date Detail June 5 Call from home phone line to Noura Jackson’s cell. June $ Call from home phone line to Noura Jackson’ cell. June S$ Jackson signs a credit card receipt at a BP station at 4830 Poplar Avenue several blocks from her home. June 5 Noura Jackson called Andrew Hammack. June5 Clark Schifani, Defendant Jackson's friend, received a “hang up” phone call from the home phone line. 1:00am. June —_Noura Jackson's cell phone calls Perry Brasfield’s cell phone. 1:06am, JuneS —_Noura Jackson’s cell phone calls Perry Brasfield’s cell phone. 1:09am. June S$ __Nouta Jackson's cell phone calls Clark Schifani. 1:13 am. June 5 No calls from Defendant’s cell phone shown in company records. 3:18 a.m. June 5 Noura Jackson’s cell calls Eric Whitaker. 3:40 a.m. June 5 Noura Jackson calls Eric Whitaker who encounters Noura Jackson at the end of his driveway shortly thereafter. 3:54am, June S_—_-Noura Jackson's cell phone calls Andrew Hammack, 3:58am. June 5 Andrew Hammack texts Noura Jackson, 4:01am, June Noura Jackson enters Walgreens at Massey Road and Poplar Avenue to purchase bandages and antiseptic and accepts apaper towel from the clerk. 4:04am. June 5 Noura Jackson texts Andrew Hammack. June 5 Andrew Hammack texts Noura Jackson. June 5 Eric Whitaker telephones Noura Jackson, 4:18am. June —_Noura Jackson texts Andrew Hammack. 4:20am, June —_Noura Jackson purchases gasoline at 6646 Poplar Avenue. 4:28am. June5 —_Noura Jackson texts Andrew Hammack. 4:36am, June5 Erie Whitaker calls Noura Jackson. 4:36am, June Andrew Hammack calls Noura Jackson (call waiting). 4:47 a.m, June Nowra Jackson calls Andrew Hammack, 4:59am, June —_Noura Jackson texts Andrew Hammack. 5:00am. June 5 —_Noura Jackson calls Andrew Hammack. 5:01am. June S Nowra Jackson calls Andrew Hammack, 5:02am. June —_Nouta Jackson calls Andrew Hammack. 5:03 am, June 5 Nour Jackson calls Andrew Hammack. 5:06am. June S —_Nouta Jackson calls Andrew Hammack. 5:18am. June Memphis Fire Department paramedic Michelle Hubert declares Jennifer Jackson dead, ‘The transcript of Hammack’s testimony shows Hammack was impaired in his ability to form and recall memories of events and the sequence of their occurrence, His statements about the timing of events were vague. His statements to police and his trial testimony contained admissions that he had disordered events, was intoxicated, had smoked marijuana, and was out all night on June 4-5, 2005, At the time of his mid-trial receipt of Hammack’s handwritten note, Respondent Jones was acquainted with the disparate bits of trial testimony relating to statements, times, and communications. Respondent knew of Defendant's own descriptions to friends, relatives, and police of her activities June 4-5, 2005, and he knew of her purchase of antiseptic and bandages captured on surveillance video. It is possible to understand how Respondent could conclude that the handwritten note neither directly negated guilt nor tended to do so in the context of the array of circumstances from numerous sources.RPR 3.8(d) requires disclosure by prosecutors to the defense of all information “that tends to negate the guilt of the accused...” ‘The Rule demands of prosecutors a judgment about the effect of information on the process of assessing guilt or mitigation. The question is whether misjudgment of the effect of evidence is ipso facto unprofessional. ‘The Trial Court concluded at the Motion for New ‘Trial that failure to deliver the note to defense counsel was wrong, inadvertent, and not material. ‘The Court of Criminal Appeals affirmed that decision. ‘The Supreme Court of Tennessee concluded otherwise; however, the Supreme Court noted: By our holding we do not disturb the ‘Trial Court's finding that the prosecutor did not intentionally withhold Mr, Hammack’s third statement, Respondent Jones confessed error in his handling of the handwritten note at the time he disclosed the note’s existence to the Trial Court and to defense counsel. His admission of error ‘was not in terms of Rule 3.8(d), but rather in terms of Jencks statements; that is, Tenn, Code Ann, § 40-17-120. That statute requires production of any written statement made by a witness and signed or adopted or approved by the witness, Andrew Hammack’s handwritten note falls within the statute; moreover, multiple earlier motions concerning such an evidentiary item had been filed, heard, and decided, Under these circumstances, Respondent should have been exquisitely sensitive to the content of the handwritten note as a statement embraced within Tenn, Code Ann. §40-17-120. Before trial prosecution provided defense counsel with two typed, signed statements by witness Hammack and a detective’s written supplement which refers to the handwritten note and which summarized it but which omitted details contained in the handwritten note itself, The prosecutors disclosed the detective’s supplement to defense counsel despite the supplement’s nothaving been signed, adopted, or approved by Hammack. Respondent Jones brought the omission of the handwritten note from evidence heard by the jury to the attention of the Trial Court and to notice of the defense counsel shortly after encountering the hanchwritten note again in the “flap” of the trial notebook, Respondent Jones reported himself to the appropriate judicial authority in terms of Tenn, Code Ann. § 40-17-120. His report resulted in repeated judicial consideration of his actions and of the effect of his omission on the trial process Its proverbial legal wisdom that hard cases make bad law. This is a hard case, It is hard to determine whether the handwritten note, considered alone, negated or tended to negate Noura Jackson’s guilt. This is a hard case because Respondent Jones’ actions are antithetical: he forgot to provide a handwritten note to defense counsel, when a statute directed him to do so, but also disclosed his error when he recollected his omission. It is a professional act to disclose one's own error. Respondent's disclosure of the handwritten note demonstrated honesty about his error. United States Supreme Court Justice Oliver Wendell Holmes, Jr, is often quoted as observing, “The life of the law has not been logic, it has been experience.” It would be illogical if we were to discourage bringing errors to the attention of the courts, and experience shows a sanction might cause the profession more loss than gain by perversely encouraging future concealment of error. ‘The proposed sanction is public censure. This proceeding received broad and continued public notice. The sanction of public censure, at this point, could fairly be considered redundant because wide public attention has long been focused on a self-admitted error. Redundant public censure threatens to move the process of professional discipline to the realm of “No good deed goes unpunished.”‘The quintessential goal must be that the criminal trial process has such integrity that citizens have faith in it, Itis difficult to grasp how a public censure, under these circumstances, reaches toward that goal. siLeland McNabb Leland McNabb, Hearing Panel MemberCERTIFICATE O} RVICE, 1 certify that a copy of the foregoing has been sent to Respondent, Stephen Patrick Jones, 201 Poplar Avenue, Suite 301, Memphis, TN 38103, and his counsel, Brian $, Faughnan, 40 South Main Street, 29th Floor, Memphis, TN 38103, by U.S. First Class Mail, and hand- delivered to Krisann Hodges, Disciplinary Counsel, on this the 2nd day of March, 2017 Reda Weer Rita Webb Executive Secretary This judgment may be appealed pursuant to Tenn. Sup. Ct. R. 9, § 33 (2014) by filing a Petition for Review in the Circuit or Chancery court within sixty (60) days of the date of entry of the hearing panel’s judgment.COOE EC EOE OE GEE E OEE EERE CEEE & & o v eS oe o @ & S eo & e a ‘Witness Statement Incident # 0506002215ME, ‘Type of Report; Homicide Location: 5001 New Haven ‘Ths Date: 06-07-2008 "This isthe statement of: Androw Hammanek Age: 17 D.O.3: 08-04-1987 Sex: Male Race: White SSN: 433-79.9743 Home Address: 658 Watson, Memphis, TN 38111 Home Phone: 259-1699 Cell: $08-8911 Education: GED ‘Occupation: unemployed Hmployer: NA Employer Address: NA Work Phone: NA Next of Kinfimergoney Contact: Juanita Hammel ‘Adldvesst 145 Mille, Avondale, Lis 70094 Call phone: 504-975-8995 Employer: Weogee’s Pizzaria ‘Work Phones 804-737-2002 "This statement is being taken at the Homicide Office, 201 Poplar, Room 11-17 on ‘Tuesday, June 07, 2008 at 1250 hours, Statement made to: Sgt. C.V. Justice IBM 9460 Car 1909 and Sgt. W.D, Merritt 1BM ‘Typed by: Sgt. C.Y. Justlee IRM 9460 Car 1909 “This statement is relative to the Homicide complaint of Jeunifer Jackson whlch ‘occurred nt $001 New Haven on June S, 2005 which is filed under MPD file iH0s0600224SME. Q: Are you aware that the Memphis Police Department is invostigating the death of Jeunlter Jackson? ‘Ar Yes. @ Do you known Nowra Jnckson? ; varett eee. eee ase’ xe TPT off JONES -2016-2534-9-KH Fuval ORDER - ExHitT 1@- {Q: What is your relationship fo Noura sna how Tong have you known her? At Royfriond, for about 3-4 months. Qs Have you evar been inside the residence at 5001 New Haven? Ar Yes. Q: When were you inside the residence at 5001 Now Haven? Az ‘Pheoe to three and a hall weeks ago. Q: What rooms ofthe house wore you in atthe 6001. New Haven adress? ‘As Noura's room, the living room, the kitchen and then we walked in the backyard and ent by the pool and played wlth the dog, We went out the sunroom to the-pool. Qt On Saturday evening, June 4, 2005, did you speak with Noma Jackson? As Yes. Q: In detail, oxptatn what time i was andl sehat was discussed between you anc Noura, ‘Ar talked fo Koale and they ware just riding around and hemging out, [twas in between 4:00 and 6100 pam, Melanie Barnett called Koale from her cell phone and the was with Nowa, When Koale suid he was with Noura, Melanie hung up beeanse ther and Noura weren't-speaicng a ths timo, Later ous between 11:00 pam and 1:00 tum, Lcalled her ad sheen aie was on the way heme roms apart, signe BY ‘el and ghe told me to meet her at her house in 18. minutos, L-ealled vatos Tater wh il Cem Hous and she told me that she was i Legat of , ‘on mos [told fer that Iwas nt my house and then she said she y ‘was about to go instde and she won talk (o mnt later. ‘Then, at 3:50 a.m. I texted hor, She was at Erie's, she wanted to nioet up and I vas on my way Horse from Keystal’s and I had been dinking and I did't want to drink and drive so 1 didn qo over to her house, {S000 nan, she wont me a text message fat sald “answer”, put} didn't enuso Fg” already asleep af the house, Tealled hee back at 10:59 a.m, ; tnd obe didn't answer, but Y already knew hier Moni nd been Kled when we passed hy the house that morning. Thad tried to eal her and get in eouch with Eomeborly, but couldn't, so we drove past the house It was lice around 11215 ato, i ' Qi Does Nowra hayes curfew? At 12 o'clock. Q: TeNowra wasn’t hume at midnight, what srould happen? ‘Ay Her mom would call her-phone, see where she was and (ell er to conse home ‘and shod leave whorever she was. Qr Af Noura missed carfow, what would happen? FF She would be grounded for the nett day and hor mom wool let her out at night “ESC EEGG GEER Qs Would Novra usually stay at home once she arrived home for the curfew? A: Sometioes she would leave-again,.. normally 50/50. Q: TE Noura snuck out, how would she do it? At She'd leave hor honse using either the front door locking It, or lifting the gavage and going shat way, Q: Would Noura drive ker Joep or leave yome other way? Aj She'd olther drive her Jeep, take the van, or Yd plelcher up, Q: Did you pick Noura up on Saturday night, early Sunday morning? At No. Q: When Nouca fold you she waa at cies house, who fs rte? A: Her godbrother, 1 don’t Imaw bls lst manne, Q: Do you know Konle’s fast namie? A: Now Q: How long have you ktiown Kose? At Four months, Q: Deseribve Koalo's physical appearance: A: White made,T think he's 18, about $°7”, 145 Ibs., he’s got 9 bluek 271 truck, he does lawa care sith his brother, blonde halr...llke-a buzz cut, t used to be curly, Desert ths truck that you drive. Az W's.0°08 white crow cab Z-71 Chevrolet, i's a lited truck, big tires. Qt When is the last time that you physically saw Nowra? ‘we day they left Tennessee to go to Perry, Florida to go to the family reamion. saw Noura ellher Thursday or Friday afternoon between 1:00 and. 3:00 pum. she drove by and honlked the horn, but she was inthe fight with Melanfe and so she dtdn't stop... walked luside cause T was linda in a rush to leave, Q: Did you text message Noura first? + Yes, Q; Explain the time and content of the text messages that you had with Noura on Sune 5, 2008, ‘Ar Ttexted Noura at 3:80 a.m, and asted her what she was ding. She texted me ‘buck Uke at 4:28 a.m, and said she-was sitting at Exle’s and ehe wanted to see me. ‘Af 4:30 (I tocted her) L.told her that 1 wanted to see her too. (I was am my way back from Krystal and Tan was with. me... was going te dvop Jan off and go to ler house, ‘but when.1 got to my house, I just went to sleep and 1 had been drinking and 1didn't want to drive) ‘Then, a s:00 she texted me teling me to “answer”, but I did't get it until the next morning, Q: Is there anything else you would like fo add to hig statement that would ‘ald us with this tavestigation? AL No. Q: Was this statement given freely and volunteriiy, without pny ‘threats or promises? As Yes. Q: Can you read and write without the aid of eyeglasses? At Yes, Q: Twill now ask you to read this siatement aud if you find It to be true ‘anid correct, initial the bottoms of each page except the lust, sign the last page. Do you undoritand? A: Yes Name: Mf canes Tne Hou CL7LS MD spon : Wiinows: Winess: @ 6 © e @ © w & oe 8 @ 6 6 6 6 e 6 6 we <7 e 6 6 © © é e ® e & e @ @ o 6 @ ie éFEECEE SEEGER EGE EEE EEC ECC EE CE EEE CECEE 2 © ‘Witness Statement Incldent # 050600221SME_ ‘Type of Report: Homicide Location: 5001 New Haven ‘This Date: 06-10-2005 ‘This is the statement of: Andrew Hammack 08-04-1987 Sexi Male Race: White SSN: 433-79-9743 ‘Homie Address: 655 Watson, Mamphis, TN 38111 Home Phono: 289-1699 Cell: 508-8911 Education: GED Occupation: mnemployed Ennployor: NA Employer Address: NA Work Phone: NA ‘Next of Kn/Bmergeney Contact: Junnitn Hammack Adetress: 145 Milli, Avondale, LA 70094 Call phone: $04.975-995 Employer: Weeget's Pizgarli: Work Phone: 504-737-2002 ‘This statement iy boing taken af the Homicde Ofies, 204 Poplar, Room 11-17 on ‘Tuesday, June 10, 2005 at 0855 hours, Statement nynde (o: Sgt. C.V, Justice IBM 9460-Car 1909 and Set. W.D. Mereitt TBM $546 Car 1915 ‘Typed by: Seb. C.V. Jusioe IBM 9460 Car 1909 ‘This statement is relative to the Homicide complaint of Jennifer Jackson which ‘occurred af $001 New Elaven off June 5, 2005 which is tied under MED.file #0S06002215ME, Q: Is this the secand statement that you have given 16 Syts. Merritt and Justice regarding this investigation? A Yea. Q: Did-you remember réceiving @ phone cal frot Noura Jackson on the night of the Incident other than what you previously told. tnvestigators in your statement? ‘Az Yes, from the Juckson residence and J didn’t answer It pat _ pager #pbd ae one te, Mili Jones —2016-2534-9-KH Fial ORDER - Exbioir 2 SSAA SE Sr eernerawererQ: Do you remember the approximate time that you received tho phone call from ‘the Jncicson residenee to your eell phone? ‘Az twas within the time perlod of 12,00 sum, to $200 nan, Qi Do you recall a statement that Noura Jackson made on June S, 2005 when you ‘were supposed to meet her at hur residence? As Yes, she wanted me to meot er outside and walls inside with her.,.that was said after too, After the incident occurred, T was visiting her at Regina’s house and ghie said it agaln to.me, Q: [eit the routine for you to come Inside the house with Noura when she gets home? A: No and she wanted mo to wafl In with her for some strange reason that morning. Q: On previous occasions avhere you've met Noura at her residence, has she ever aaked you to go inside with her on those encounters? A Now Q Have you noticed aay cuts on.abenslons on the hands of Nowra, Jackson? ‘At Tuesday night Lnotlced there was-a banda on ler band. wanting fo say...maybe hee right, ‘Then ¥ eon tt again at Latceside and the cut looked faicly deop, Me, Radic and Melanie followed Noura anit her awats to Lakeside, Betore she left, the bandald was on and right before she went ino Lolkestdett was off, 1 noticed there yeally was a cut there, EC ECE EC EOECEEECCEEE + Ts there anything else you would Tike to add to this tatoment that would ‘aid us with this investigation? Ar No. €CCEECEECECHEEE (Q: Was this statonent given freely and voluntarily, without any threats or peomitses? Ar Yes. Q: Can you ead and write without the ald of eyeglasses? Ar Yes. (Q: Lif now nsk you to read ths statement and If you find it to be true ‘and covced, initia tbe bottom of éach page except the last, shgn the last page. Do you understand? Ai Yes. Name: to patwrime: 2-10 -OS 15 a.m. f | i : | | i | i | & | é | € 1 bs | 7 | ss ¥Supplementsgt Miller 06-13 ose # ososocaateane Tots Monday Tune 13, 200 Sg. MMiller #5574 asosooza ise 9945hrs Weiter gota phone warrant of he records of Andrew Hamumock’s Nextel phoge, The Wairsst was o 10¢8brs . Sat Holldorfoc west the TAI lab to meat vith the DNA analyst and go over the evidence, Sy elldorfer lock enone Seene and autopsy photos, 1120hrs Writer picked up Ancrow Hammack and Jan Stricklend at Danny Thomas tod Poplar and brought then to the Honieide Office, Writer pliced Hammack fn the sual nterview room. Hammack advised that he was wit Ian and tet up with Ryan Grisham, He let Tan, Marcus, end J-Rom ta his Guck and he wont fo a party with Ryan Giisham an a fltod or hi, Hammack said that before 1:00 Nout calle bis cll phoue, which wat in his tack with Ia Tan told er that he was nity Ryan, Noora then called him on Ryan's ghone and esked him to coms over to let house. Hi told hee he woald ts soon an be got his trick. Between 10 ané 30 minuneslater Novra called tack ind told him that she wae alveady home an tins the would talk to him latex, ‘Hanimack went back ofls honse on Wateon. He eald dat lie and Nowra text messaged cach oer jot saying hello several times and that the messiges are stored ob his phone. He stated that later be and Yan were oat end ‘Noure called and said she was at Eric's and wanted him to meet het atthe house, He said he would bathe didnt beeaase be was wo drunk. He and Jen went hotne for the nlght. Bamaosk hada hand written note wit the things ho dd at night. * Weiter collected the note forthe fle. Hammack advised thet Beate andthe others were confused bout the nights, bocaise be tock Bucky home on Friday alght. Victor sont Sgt Luck and Tan Stiskland to 655 Watson to recover Hmanocs call hone with Ig potmtsion, 1350h5 Sot. Luckat retuned tothe Homicids Ottice with Hammmack's phove. Whiter viewed the last txt messages left inthe memory. The last three messages were: 4:0Sem "gothn sts at erics | wanna ou" 49am “wher w doing” 5:00am "answer" . Writer sent Andrew Hammack home with bs pions. #4 © END OF SUPPLEMENT * ** Jones ~2016-2534-9-KH Fil ORDER = ExHIBIT 3b2rz5/2009 16:62 905455937 Pace eeveo eo an Sdictvtcla a, Sane S™ close ty Key S tele i ele, Lan rReyron anc Mares went +2 PEK ep buck 3 0m Wis woase al he diy come ot Mean ae lun poet be wd he ACT in dee Mornin Fo we w OUP Gh RG wh te padi Mr ue no G Gcliyk, Te bean ak ta Be ae eae Sipe "ene te Watt MHlnens pnd Syn Sto aw pant a “MH de ay a Forty woth, RR, L we Goes | sta nee 4 A en eaten Rise ats wae SIT ole oe Oe 7 Rid els arn ik De | Berkely ee OME at we URS it ix the oere ty yn Fer ints, arog * SY Krac " aany- toes yal trek eth Sap | BQ ite bee > ons. . Othe Weise woe caine Dale Chow ; ee BO dex : tay Cling on Se: a ae Cre” hone Seinen eg buat asked be a Over We cous A Cheteen” Pe are Reng i fe eles ain ae and 4 on nt SE a We ad jon Ree ded Pon < ee i ef 7 os Jones —2016-2534-9-KH Fiva ORDER - Ext 4 Wie Ane oven B, . Pls ale ts hug :f#ECECECEESCECEEEGEECEEE ay/7m/2009 le:er — arsd62857 Pace ,.07/08 - Morbi tH Hitstas30 & THE UNIVERSITY OF aos oregon & : 8) MEMPHIS 7 APPLICATION STATUS REPORT ‘May 27, 2005 Mg, Bdward Zehed TERM: Foll 2005 655 Yat900 SMD: 414.68.8775 edhe TH 38121 CLASS; Freshmen COLLEGE: ACU DEGREE: MATOR: UND * ‘We are presently roviewing your application, Pleaae help lee owt records ourent by aotfying his offiog of any chonges fn the above ndormaton, ‘Tocontinue procesdiug your adbaleston appllation, we requo the OLioving: * A old high sohoo! transcript + Grou! Réwnton Devens (GED) tt snet, Yamato te 6 GED tt sddminerered by the Board of Bduoation oud tothe aoore toa eeaty to this ice, Oficial docusents axe required, Ta be conadered official, all jeras mut be sexe dirty hom the issuing Snuttution to our offic: al test svores moet come fig the esting agency, all tensespt oto the issuing fehoo!, ets, (For your conveatende, tat econes rebeivett cn offical ranctips ll be acorptd aa afofal ) ‘Your uénisis status wil be cba ee then decuamete are recived, you have wy quasllons please contact the Offies of Admissons et (601) 678-221, g BP Ahern tds oul Hoa hate conn AE OW aah ego eli we feet 0 ark UR dated ! woe, talic ch, wong wo i s oe Keees Wom got nen OS gift te Seon ae, PANELSa6 a7 ae as 20 an 22 a3 as ST 0 [YoG-eeh- R3- co IN THE CRIMINAL COURT OF TENNESSEE AT MEMPHIS THE THIRTIRTH JUDICIAL DISTRICT DIVISION VIII STATE OF TENNESSEE ve. Cause No. 05-06767 NOURA. JACKSON, Defendant ) ) ) ) ) } ) } ) ) EXCERPT OF PROCEEDINGS TESTIMONY OF ANDREW HAMMACK parrnsry te anne UOUGINAL = VOLUMES 45 OF 49 VOLUMES. THE HONORABLE CHRIS CRAFT, PRESIDING JUDGE VIRGINIA ZISsoN official Court Reporter 30th dudicial District -- State of Tennessee 201 Poplar Avenue -- Suite 7-16 Memphis, Tennessee 38103 FILED MAY 25 2010 b Y age a, Clerk of the Courts Jones —2016-2534-9-KH FINAL ORDER = EXHIBITSaa a a3 1 as 26 a7 ae 20 aa 2 2 2 FOR FOR DeeePeneAs he A ueCeneg: THE STATE: Amy Weirich Steve Jones Assistant District Attorney General District Attorney General's Office 201 Poplar Avenue -- 3rd Floor Memphis, Tennessee 38103 THE DEFENDAN’ valerie corder Art Quinn Attorney at Law 212 Adams Memphis, TN 38103 COURT REPORTER: Virginia Zisson official Court Reporter 30th Judicial District 201 Poplar Avenue, Suite 7-16 Memphis, Tennessee 38103 -State of Tennessee Page 210 aa a2 aa a as a6 a7 28 as 20 aa 22 2a 24 28 Cover Page Appearances Index exhibite caption WITNESS: Andrew Hammack Direct Examination by Ms. Weirich Cross Examination by Mr, Quinn Redirect Hxamination by Ms. Weirich Recross Examination by Mr. Quinn Court Reporter's Certificate 22 27 29 33 Page 31 a2 aa as at 18 as 20 22 23 2s EXHIBIT? s Exhibit To/Description (No exhibits were entered. Page Page 410 an a a3 as 18 a aa 22 2 as IN THE CRIMINAL COURT OF TENNESSEE AT MEMPHIS THE THIRTIETH JUDICIAL DISTRICT DIVISION Vzzz STATE OF TENNESSEE Cause No. 05-06767 Defendant ) ) ) ) NOURA JACKSON, ) ) ) This cause came on to be heard and was heard on the 19th day of February, 2009 et. seq., before the Honorable chris craft Judge, holding the Criminal court for shelby County at Memphis, Tennessee, and a jury of twelve and two alternate jurors. The jury was selected, impaneled, and duly accepted by both sides and sworn. Officers were sworn to take charge of the jury; a sequestered jury being requested. The Indictments were read by Steve Jones, Assistant District attorney General for the State of Tennessee; pleas of not guilty were entered by valerie corder, Attorney for the Defendant. ‘The rule was invoked, and the witnesses were excluded from the Courtroom. Page 510 a3 aa as 20 aa 22 22 2s (The following proceedings were had February 19, 2009.) ANDREW HAMMACK having been first duly sworn, was examined and testified as follows: BY MS. Q. a Q. DIRECT EXAMINATION WEIRICH: Good afternoon. Good afternoon. Would you please tell the jury your name and spell your first and last names for the court reporter. AL Andrew Hammack. A-n-d-r-e-w H-a-m-m-a-c-k Q AL Q B Where do you live? New Orleans, Louisiana. How long have you lived there? About two and a half, three years Page 610 aa az aa aa 1s as a7 18 20 22 24 Q. What do you do there? a. I do construction. @. Is that where you're originally from? a. Yes, ma’am. @. Where did you used to live before Louisiana? aA On 655 Spottswood, Memphis, Tennessee. Q. Who did you live with? A. Bddie Zahea. Q What were the two of you doing at that point in your lives? were you in school, were you working? Both? aA. I was working on getting my GED and he was in school. Q. Do you know the defendant, Noura Jackson? aL Yes, ma‘am o. Do you see her in court today? B Yes, ma’am. Q Would you point to her for me please, and tell me what she’s wearing? a A black sweater MS. WEIRICH: Let the record reflect he's identified -- Page 7a0 aa a2 aa aa as 16 ae as 20 aa 22 2a 2a 25 THE COURT: For the record, he's identified the defendant in this case, Miss Jackson @ (By Ms. Weixich): Back in June of 2005, what was your cell phone number? a. 901-508-ssi1. Q During that same time period, what was your relationship to the defendant? Were you two friends? iXp I consider it more like friends with benefits. Q. okay. Did you all hang out? aL Yes, ma‘am. ° Okay. Did you hang out in large groups of other people? A. Yes, ma‘am Q. Who all would hang out when you all would hang out together? AL Me, Eddie Zahed, Ian Strickland J-Ron Curtis, Steven Davis, Robert Graham Q. All right. gune 4*® of 2005, and June 5% o£ 2005, did you see the defendant at any point during that Friday, Saturday, or Sunday that weekend? ALS No, ma/am, Page 810 aa a2 aa aa as 1s a7 18 as 20 2a 22 24 Q. Did you talk to her? a Yes, ma’am Q. Is it safe to say that you would call her and she would call you? a Yes, ma’am, Q And sometimes you would connect and speak to one another and sometimes you wouldn't? a Correct. Q. Okay. When was the last time before then’ that you had seen the defendant? a. If I had to give a rough guess, T would say probably, maybe two weeks before she had-went to Florida. Q. Did you all talk, though, during that period? ae Between the two weeks? a. Yes, ei A Yes, ma'am. I would say so. Q. A little bit, a lot? AL E really can’t remember exactly. But ° Did you talk every day? aA I would say, no, ma‘am Q. Okay. When you spoke with the Page 920 aa aa a3 a4 as 1s a7 a8 a9 20 aa 22 2a 24 as defendant -- let me ask you this, when is the first time you recall talking.to the defendant the night of gune 4** or the early morning of dune 5st? A. I would say maybe around ten. o. All right. A. Between ten and twelve. Q. what was the gist of the conversation? a. She had wanted to meet up or whatever. Op Did she say where she wanted to meet vp? ns At her house. e. Okay. Did you do that? a. No, ma‘am o. Was that the last time you talked to her? a. No, ma‘am ae When was -- tell me about the next time you talked to her? a. I really don’t remember if it was a text message or phone calls. mut it was throughout the night and the last thing, I do remember when I woke up the morning of June 5** Page 10a0 aa aa aa as 16 18 as 20 aa 2a 25 Q. Uh huh. A Is I had a text message or a voice mail that said angwer. I need to talk to you or something a. Do you know what time that voice mail was? MR. QUINN: Your Honor, I believe he said voice mail or text message. NS. WEIRICH: Text message, I'm sorry. THE COURT: Right. Q. (By Ms. Weirich): po you recall what time that text message was? EN I would say probably around five o'clock. Q. In the morning? AL Yes, ma’am. Q. Of June 5°, 20057 A. Yes, ma‘am, Q. Did you answer? Had you -- dia you even know you had that text message? A No, not until I got up the next morning, June 5*, Q. Did you ever have a conversation with Page 1110 aa 12 aa aa as a6 a7 ae as 20 aa 22 2a 25 her before you - before that morning when you woke up and saw that text message, did you have a convereation with her earlier that night about her being at Bric’s house? aL Yeah, she said she was on the way back from Bric’s and she had wanted to meet up. Q. What did she want to do? A I don't know, We didn’t meet up. Q All right. Well, where did she want you to meet her? What did she want you to do? a. Come to meet her at her house Q. Did she say why? a. No, ma‘an. 2. okay. Was that a normal request.o hers? Did she normally call you and say come meet me at my house at five in the morning? A. No, ma'am. e. Okay. Had she ever made that request before? a. No, ma’am. 2. Did you go? a. No, ma‘am Q. Did you eventually find out that her mother had been found dead? A Yes, ma/am Page 1210 a2 aa aa as 17 19 20 aa 22 23 24 Q. Did you see the defendant after you found out that news? a I don’t remember, 1 don’t recall seeing her. We had went over there to the New Haven address the next morning, say between maybe eight and ten. . okay. a And I didn’t get out of the truck. 1 think Eddie -- it was me, Eddie, Tan, ana a-Ron. o. All right. But did you see the defendant there then? A I really don’t remember. Q. All right. Did you see the defendant later that day or another day? a Yes, ma‘am. I did Q. Okay. Where did you see her? A. At Regina Hunt’s house. Probably, I would say in between five and seven in the afternoon at night. Q. Okay. Did you eventually come down to the police department and give a statement? A. yes, ma’am. 2 Did they come get you or did you come down on your own or how did that transpire? Page 1310 aa 12 13 1s a7 18 20 aa 22 23 25 Ns They came and got me. ZX think it was the Tuesday of dune 7**. Q. All vight., Did you give a statement? A Yes, ma’am. 2. Did they ask you a line of questions like we're asking you today? aA Yes, ma’am. 2 Did you answer them? AL Yee, ma’am. @ Did you then give another statement a few days later? EN Yes, ma‘am. I think it was on -- maybe --'might have been Friday. It was June zoe, 2 Okay. Was it just additional information that you had or had you not been truthful in the first statement? ay I had not - when 1 - I think r gave ny first statement with them and I had my nights mixe@ up, so I think the second statement was the more clear statement. Q Okay. All right. And when you say you had your night mixed up, What did you have your nights mixed up about? A In between Friday and Saturday night. Page 1410 aa aa aa 1s 1s ae 1s 20 22 23 24 as 2. okay a So I had them in different orders. 2. All right. Dia you talk to the defendant at all Friday and saturday night of that weekend or do you remember? aA. I don’t remember if 1 talked to her Friday, But -- and like saturday night. ° The jury has seen some shoes you were wearing MS. WEIRICH: I'm sorry, guage, if I could have one moment. THE COURT: Yes, ma’am. (Brief pause.) Q. (By Ms. Weirich): Some New Balance tennis shoes, do you know what I’m referring to? A. Yes, ma’am. ° All right. When did you -- were those your shoes? aA. Wo, ma’am, They were Garrett Perryman’s Q. Who's Garrett Perryman? A. One of the guys who was staying with Page 1520 aa aa aa as 16 aa 19 20 aa 22 23 24 25 us at the time Q okay MS. WEIRICH: May I approach the witness, Your Honor? THE COURT: Yes, ma’am. Q. (By Ms. Weirich): The Bxnibit, for the record, is 260. Flip through that and see if you recognize those shoes. aA. Yes, ma‘am, I do. ° All right. Whose shoes are they? a. Garrett Perryman’s. 2 Why were you wearing them? a Because it was probably five or six of us that was always at the house. Ana just shoes by the front door. °. Okay. When did you start wearing those shoes, do you remember? aA. I think maybe the first time I wore them was to the police station when I came for my statement on, I think that was the 7, a. On dune 7*2 AL Yes, ma‘am. a. You had them on then. Were they too small for you? Did they fit yo Were they your size? Page 1610 aa aa as aa 4s 16 18 as 20 aa 23 24 25 A. No, ma'am. No, they fit. Q Did you continue to wear them or do a I really don’t remember. . Okay. Well, if those pictures weren't taken on that -- when were those pictures taken, do you remember? A. No, ma’am. I don’t a. Okay a. I think on gune 10%, Q. All right. But you don’t know? A. No, I really don’t remember, honestly. a. And were you wearing the shoes when those pictures were taken or was it another time? aA. No, not when the pictures were taken A group of my friends brought them to the police station o. Okay. So you weren't even with the shoes a. No. a. -+ when the shoes got taken to the police department? A No, ma’am, Page 1720 an aa aa 1s a7 as 20 an 22 2a 24 Q. The police took pictures of them. You said you and Eddie lived in thie house and then you said there were always five or six pairs of shoes. Were there other people hanging around this house besides just you and Eddie? aA. Yeah, it was usually -- beside me and Eadie, it was usually J-Ron curtis, Zan Strickland, and Steven Davie had lived with us for a while. Q A bunch of guys? B Yes, ma’am. Q. Did you ever -- when you spoke with the defendant in the early morning hours of dune 5**, 2005, and I don’t want to put words in your mouth, but what did she say? She wanted you to meet her where? A She wanted me to meet her at her house. Q. And do what? 5X, Walk in with her. She said just come Q okay. Had you ever been you didn't do that, right? AL No, ma’am. Page 18a aa a2 aa as a a7 18 as 20 aa 22 24 a. You never saw her that night, right? R No, ma‘am. ° Why didn’t you go over there? why didn’t you say, okay, I/11 be right there? AL Because, I mean, we hadn‘t seen each other -- prior to that it had been, r'm not definitely for sure, but at least a week ° Okay. Well, and you had been out all night, right? a. yes, ma‘am 2. Had you been drinking? a. Yee, ma’am. 1 had been drinking. 1 didn’t -- I mean, I couldn't afford a pur at the time. eo. okay a. still can’t afford one. Q. Okay. 80 you chose not to go over there? a Yes, ma’am MS. WEIRICH: I£ E could have one moment, Your Honor. THE COURT: All right. Yes, Mr. smith? THE JUROR: Yes, could you have him clarify which date this was in 2005? Page 19a 1 a 1 1s a7 ae 1 a 2 2 a 2 THE COURT: Which date what was? THE JUROR: That Miss Noura, the defendant, asked him to come over THE COURT: Okay. He wants to know what date it was that the defendant asked him to come over. THE JUROR: And what time. THE COURT: And what time. @. (By Ms. Weirich): Do you remember what day it was? A gune 5%, . Q. Okay De And I don't recall exactly the time -- the exact time frame. It was in the midmorning of dune 5**, though a. Well, let me give a - like, was it one in the morning - AL No. It Q. -- was it six in the morning? AL It was later than that. It was a little later than that a. Okay. A. Tt wasn't six in the morning. 4t wae earlier than that. a. Okay. Was it after she told you, I’m Page 2010 aa 1 aa 1 a6 ae 1s 20 22 aa 24 25 at Eric's house, come meet me? a Yes, ma’am, Q. So that was two differen conversations? A Two different conversations. a. Did you know who Eric was? pid that mean anything to you? a 2 oe o Did she say which Eric? a. No, she didn’t say which Eric Q. Okay. All right. But you have a conversation with her where she says, I’m at Eric’s. Right? AL Yes, ma’am. Q And does she want to meet with you? A, Yes, matam. Q. And then you have -- do you have another conversation with her when she says meet me at my house and walk me in? AL Yeah, she said, just come in. gust come over. Q. Okay. All right. And were both of those conversations in the morning of June 5'*? A. The first conversation might have been the first conversation was, I would say Page 2110 1 a a3 a 16 a7 ae as 20 aa 22 2a 24 between - between twelve and two. Q Okay. Okay. And the other conversation, what time? A I would say maybe, four ish maybe? a. Okay. All right. Thank you MS. WEIRICH: 1/11 pass the THE COURT: Defense. CROSS EXAMINATION BY MR. QUINN: Q Mr. Hammack, now, you had to give two statements in this matter, right? AN Yes, sir. @. All right. And are you aware of how your shoes got into the possession of -- or those shoes got into the possession of the police department? AL ves, sir, I am. e. Your roommates, your friends brought them down, didn’t they? A Correct. 2. All right. And I would like to direct your attention back to that night, gune 4%, that would be the Saturday night. It's Page 2210 a2 a a a 1 as 20 2 2 2 24 fair to say you were very wasted, is that correct? A I wouldn’t say very wasted. I was intoxicated. 2 Okay. How about the word blotto? De you remember telling my investigator Clark Chapman that? a. What was the word? a. Blotte. a. I don't recall that. @ Well, just tell us where you went that night. How about that? A. The night of gune 4t*, a. Saturday night? an Saturday night. I was at a party with Ryan Grisham. and after we had left the party, he dropped me off at my house on 655 Spottewood. @ What time? aA. I would say maybe between eleven ana eleven thirty 2 All right. aL And then after that, sucky Schultz was at my house and he needed a ride home, he nad a curfew. Page 2310 a2 aa 14 as as ar ae as 20 aa 22 23 as Q You gave him a ride home, didn’t you? AL Yes, sir. ° He lives within a mile of Noura Jackson, doesn’t he? aR He lives on White station ° White Station and what? a Poplar. °. All right, so you gave him a ride home sometime after one o'clock, is that right? A No. It was - I think he haa a curfew for twelve thirty @ So you gave him a ride home sometime after twelve thirty? aA. It was to meet his curfew Q. Now, you told the officers on your firet statement, in part anyway, that Noura called you sometime between eleven p.m. and one a.m. Or you said later on between eleven p.m and one a.m., I called her and ehe said she was on the way home from a party. She was by herself and she told me to meet her at her house in fifteen minutes AL Yes. ° Is that about the right time? A And then when she called me, she just Page 24Fr an a2 aa aa as as ae a9 20 aa a2 23 24 25 said, I'11 call you later, but that was probably the first conversation. Q. All right. And then -- well, the records would show what time you called her, right? aA. correct. 2. And what time you all talked? aA. Correct. Q. Whether it’s 12:55 or 12:59. and there was a text in there, too, wasn’t it? AL Correct 9 She was asking you to come over to her house at one, not only at four or five or ee . vou @idn’e do ie? A. “yo, cee . What time afd you get mack fron taking Bucky Schultz home? A I would say in the time frame from one thirty to two o'clock 9. How about three? aA. I would say it was a little earlier than that. Q So, if your roommates are wrong about Page 2520 an a2 as 1 as 16 ar 1s 20 2 2 24 that, that would be difzerent? aA. Because I stayed -- I stayed over there. 1 do recall, he did have a curfew. 1 don't remember exactly what time, between twelve and twelve thirty. and I stayed over there for probably a good two hours, maybe a little longer. . You stayed at his place for two hours? AN Yeah. Yes, sir. Q. Do you remember telling the officers after that, after Noura called you sometime between eleven and one and invited you over told you to meet her at her house. You said, I called her fifteen minutes later, when I got back to my house. Do you remember that? a. What was that again? Q I called her fifteen minutes later when I got back to my house. She told me she was in front of her house waiting on me. a. Correct. So that would be, about what time, one thirty? @ I’m asking you. THE COURT: Well, now, you can’t ask him questions Page 26as 1s a7 ae as 20 22 23 24 A Okay. Okay. Q (By Mr. Quinn): So you dian‘t get - well, did you get home at one thirty or did you get home at three? A Like I said, I don’t recall Bucky's exact curfew. But he did have a curfew 2. And you stayed there two hours? a I-would say between maybe an hour or two. Maybe. Tt could have been longer, it could have been less. a. Did you go over there? ne No, sir, I dia not. Q. Did you go over there when Noura wasn't there? a No, sir, I dia not. MR. QUINN: That’s all the questions I have. THE COURT: State, any redirect REDIRECT EXAMINATION BY MS, WEIRICH: Q. If the cell phone records show that Noura Jackson called you at 4:47 in the morning on dune 5*, 5:00 a.m. in the morning on June 5'*, 5:01 in the morning on June 5*™, 5:02 in Page 2710 an aa 13 a4 as as a7 ae 1s 20 22 24 2s the morning on June 5**, 5:03 in the morning on June 5'™, and 5:06 in the morning of gune st, did you talk to her all of those six times? aA I really don’t remember. Q. All right. Dia you talk to her at all during any of those times? R T think at that time I was already sleeping. Like 1 said, I really don’t remember. Q. Okay. Thank you. THE DEPUTY: The jury has a question. THE COURT: Yes. Miss Donala? THE JUROR: Could she repeat those times? THE COURT: Allright. I£ you will repeat that question for the witness please, keeping in mind that attorney's statements aren't evidence. You have exhibits of phone calls, but attorney’s statements aren’t evidence, but she can ask him that and his answer is the proof. You may ask the question again, Mise Weirich MS. WEIRICH: Thank you, Q (By Ms. Weirich): If the phone Page 28a0 1 a2 a3 1 as 16 1 1 as 2 a2 2 2 records show that the defendant called you at 4:47 in the morning, 5:00 in the morning, 5:02 2, $:03, and 5:06, do you remember talking to her six times in a row? waving a conversation, hanging up, and getting a phone call from her as soon as you hang up? a I know I dian’t talk to her six times in a row @. All right. Thank you. THE COURT: Anything else from the defense? RECROSS EXAMINATION BY MR. QUINN: eo. Did she also call you at 3:547 A. Yeah. Was it a text message or a call? THE COURT: Well, the question + you see, you're the witness. THE WITNESS: I know. I'm sorry. THE COURT: And I’ve been telling the jurors for the last two weeks that nothing an attorney says is evidence. we ‘can have an attorney say, well, don’t you know that Page 2910 aa a2 aa ae as 20 22 2a two plus two is five? You know, and you look at the attorneys face and they've got such an expression, it’s got to be five. If the witness says, no, it's four, then you’ve heard no proof that it’s five. Does everybody understand that, all right? @ (By Mx. Quinn): Who's Marcus Dalugich (spelled phonetically)? A. Marcus Dalugich? @ Yeah. A. He was a friend of ours Q Were you with him that night? a Not that I can -- I really don’t remember. Q Were you using his phone? ae I really don’t remember. Q. Did you leave your phone anywhere or lose your phone? aA. No, sir, 1 aid not. @. Did you go to a topless place that night with somebody? aA. No, sir. I was on my way, but decided not to go Page 302 a2 aa a6 as a6 an a 2 aa a2 23 24 a. Yeah, you went about -- you started about three o'clock in the morning, didn’t you? a correct. @ You got back to your place? A Corxect. 9. Who did you start out going with? a. tan Strickland. @. And then you’ all just went and got gas and turned around and came back home? aA. Went to the gas station. We road around and smoked some marijuana. Stopped at Krystal’s on the way back to the house and went to my house Then called it a night? A. Called it a night. MR. QUINN: Those are all the questions I have, Your Honor. THE COURT: Anything else from the state? MS. WEIRICH: No, sir. HE COURT: Thank you, sir You're can -- you’re welcome to continue watching the trial or you can leave, but you can’t talk to anybody about your testimony or anything you hear in the courtroom until the Page 31a an a aa 2 25 end of the trial. Okay? THE WITNESS: Yes, sir THE COURT: Thank you, you can step down. (The witness was excused.) (mnd of proceedings heard in this cause February 19, 2009. Page 3210 aa az aa aa 1s a6 18 as 20 22 2a 25 CERTIFICATE I, VIRGINIA Z1880N, Official Court Reporter, do hereby certify that the foregoing is a true, accurate and complete transcript, to the best of my knowledge ana ability, of all the proceedings had ana evidence introduced in the hearing of the captioned cause, in the Criminal court for Shelby County, Tennessee on the 19th aay of February, 2009. I do further certify that r am neither of kin, counsel, nor interest to any party hereto, Dated this Sth day of March, 2009. «late ap— official Court Reporter oot ‘ : sonelsee, My commission expires: may 27 SQuMsilltsoy, 1 aa vy, lek rey erty tat ‘his 1 0 trya and exact gopy of She opiglaal imsgege ep fm mies ee a Babe role A Reh fag ch wo. Page 33