DA Amy Weirich says she didn't know about witness payment

The office of Shelby County District Attorney General Amy Weirich said Wednesday that she did not know about a $750 payment to a witness who testified in the death penalty case of Andrew Thomas that she wasn't paid.

Thomas was convicted in the federal and state systems for the 1997 shooting and robbery of armored car courier James Day. Thomas is appealing both cases.

Angela Jackson, a witness in both cases, was paid $750 on Dec. 18, 1998 by the "federal government" in connection with her testimony in the federal trial, according to a joint document agreed to by Thomas' attorneys as well as the Tennessee Attorney General's Office.

But Weirich said in a statement Wednesday that the case file she received from the federal government had "no record or mention of such a payment."

"The first I heard of this payment was after the 2011 federal proceeding, 10 years after our prosecution of Thomas in Criminal Court," she said, adding that the shooting victim, James Day, has been forgotten in the discussion of Thomas.

Louis Goggans, spokesman for the U.S. Attorney's Office, released a separate statement Wednesday about the payment.

“The U.S. Attorney’s Office can confirm that the materials it provided regarding the Andrew Thomas case to the District Attorney General’s Office in early October of 1999 made no mention of the $750 payment. The Office can also confirm that it first notified the District Attorney General’s Office of the payment only after the 2011 federal proceedings.”

Thomas, who is incarcerated on death row at Riverbend Maximum Security Institution in Nashville, says he is innocent, and the payment is one of the issues raised in his appeal.

The payment was discussed at an oral argument Nov. 2 before three judges of the U.S. Court of Appeals for the Sixth Circuit at the Cecil C. Humphreys School of Law in Memphis. The hearing was held less than a week after the Tennessee Board of Professional Responsibility filed more charges against Weirich alleging misconduct in a separate case - the 2009 prosecution of Noura Jackson in the death of her mother, Jennifer Jackson.

In the joint document about the payment, Thomas' attorneys and Assistant Attorney General Michael Stahl agreed that knowledge of the $750 payment is "imputed" to the state prosecutors. The meaning of "imputed" versus actual knowledge was subject of discussion during the hearing.

"Imputed knowledge suggests knowledge," Judge Gilbert S. Merritt said during the hearing.

"That's right, your honor, it suggests knowledge, but there's no evidence that there was actual knowledge in this case," Stahl said. "There's no evidence that has been put forward by the petitioner that there was actual knowledge that the prosecution ..."

"Is that what this case turns on, the difference between actual knowledge and whatever imputed knowledge means?" Merritt interrupted.

"No your honor we just wanted to make that clear ... " Stahl said.

Tennessee Attorney General Herbert H. Slattery III further said in a statement Wednesday that the payment was made by the federal government "without the knowledge of or involvement" by Weirich.

"The payment to Ms. Jackson was made three years prior to the state’s successful prosecution of Mr. Thomas for the murder of James Day," Slattery said. "There has been no finding whatsoever that state prosecutors in this case had actual knowledge of the payment at the time of the state trial. The briefs in the case describe knowledge that may be imputed to a prosecuting office under a legal concept, but that is a far, far cry from actually knowing of or concealing a payment like this."

Thomas said in an email through his wife that he has been "hidden like a 'skeleton' in the closets of Federal Prosecutor Tony Arvin and State Prosecutor Amy Weirich who is now the District Attorney of Shelby County" and that "prosecutors withheld evidence and knowingly presented perjured testimony that its Star Witness was never paid or promised reward money."

In a phone interview, he compared his case to the case of Noura Jackson, who said Weirich and  another prosecutor on her case hid important evidence.

"She (Noura Jackson) said, 'I can assure you this is not the first time," Thomas said. "And it's not."

The Safe Streets Task Force, a multi-agency group of federal and state law enforcement, investigated and assisted in the federal trial of Thomas, and a member of the task force, Deputy U.S. Marshal Scott Sanders requested the $750 payment, according to the court record.

After Thomas' federal trial, Thomas was tried for the murder of Day in state court, and the task force investigated and assisted with that trial also. Angela Jackson also testified in the state death penalty trial, but neither Thomas nor defense lawyers were informed of the payment.

Thomas' attorney and the Tennessee Attorney General's Office agree in the joint document that the $750 constitutes exculpatory evidence, but the arguments in Thomas' appeal involve what impact knowledge of the payment would have had on jurors.