Mimesis Law
23 May 2017

Andrew Lee Thomas: Disclose If You Want Them to Die

February 27, 2017 (Fault Lines) – On April 21, 1997, a Loomis-Fargo armored-car driver, James Day, was shot in the back of the head outside a Memphis Walgreens where he’d just picked up a bag of cash. The shooter grabbed the bag and, together with another man, fled in a stolen white Pontiac which they quickly abandoned. Police found the car just a couple streets away and managed to recover a set of fingerprints.

Some time later, a man by the name of Anthony Bond was picked up on unrelated charges. His fingerprints were found to match those in the car. Bond confessed to having been the getaway driver and implicated Andrew Lee Thomas, a habitual offender with a long list of convictions for aggravated robbery, as the shooter.

Because Thomas‘ alleged crime implicated interstate commerce, as nearly everything does if you squint hard enough, the feds got involved. FBI agents interviewed the woman who’d been Thomas‘ girlfriend at the time of the shooting, Angela Jackson, and she told them a story that sealed Thomas‘ fate.

According to Jackson, Thomas and Bond traded in the Pontiac for her own car, which they drove back to her apartment. When they arrived, Thomas directed Bond to get rid of the murder weapon – which, as a convicted felon, he wasn’t allowed to have – and set about dividing the contents of the bag, a grand total of $18,843 in cash, checks and food stamps. In classic Goodfellas style, Thomas then allegedly used his share of the loot to buy himself and Jackson ridiculous things, including gold necklaces, wedding rings (the couple had an extremely short-lived marriage several months later) and a pink Chevrolet with gold plates and gold spinners.[1]

In 1998, Thomas was tried in federal court and convicted on one count each of robbery affecting commerce (18 U.S.C. § 1951), using a firearm during a crime of violence (18 U.S.C: § 924(c)) and being a felon in possession of a firearm (18 U.S.C. § 922(g)). Under the delightfully ill-advised and intermittently constitutional Armed Career Criminals Act, he was sentenced to the itself charmingly illogical punishment of life plus five years at Club Fed, to be followed by five years‘ supervised release.

That’d be bad enough on its own, but it was just the beginning of the road for Thomas. You see, Day, the armored-car driver, defied the odds and lived… at least for a while. Because the bullet clipped his spinal cord, he was left an invalid for the rest of his days. The neurological damage meant he was no longer capable of operating his bowels, and in 1999, his bladder burst, causing an infection that killed him on October 2 of that year.

A Tennessee coroner ruled that the gunshot wound was the direct cause of Day’s death, so Thomas, already a dead man walking, and Bond were hauled into state court and made to stand trial for felony murder. (The felony-murder doctrine holds that anyone involved in the commission of a felony may be charged with murder if someone dies as a direct result of the crime.) Both men were convicted in 2001. Bond was sentenced to life imprisonment; Thomas got the death penalty.

During the federal trial, Jackson’s testimony was pivotal to the government’s case. There was circumstantial evidence implicating Thomas in the robbery and murder (the expensive purchases,) and there was an unreliable eyewitness who claimed to have seen Thomas in the car, but it was Jackson who tied it all together. As the Sixth Circuit put it in its decision in Thomas v. Westbrooks:

Jackson provided the only credible identification placing Thomas at the scene of the crime. She provided the only testimony linking Thomas to Bond, his co-defendant, on the day of the shooting. And she provided the only testimony affirmatively attributing Thomas with responsibility for the transactions cited by the State as circumstantial evidence of his involvement in the shooting. Without Jackson’s testimony linking Thomas to the events surrounding Day’s shooting, the State would have had a very difficult time proving its case.

Jackson had given a statement to FBI agents when she was interviewed in 1997, and she repeated those allegations at the federal trial in ´98, so it was only natural that she reprise her role for the state trial in ´01. The DOJ turned its file over to Tennessee prosecutors, who relied on her to make their case.

Jackson recited her testimony a second time, and produced a second guilty verdict for her government handlers, but what (almost) nobody knew is that there was a crucial difference between her credibility in the first and second trials. Years after Thomas was convicted, his attorneys discovered a receipt in the DoJ file proving an FBI task force paid Jackson $750 after the conclusion of the federal trial.

This piece of information would’ve been massively useful to Thomas, because he could’ve used it to impeach Jackson by showing she was perjuring herself for money. The only problem is that the State of Tennessee’s prosecutor never bothered to disclose the receipt to Thomas’ lawyers.

Worse, the prosecutor, whose name goes generously undisclosed by the Sixth Circuit, failed to correct the record even after Jackson repeatedly claimed she was testifying for selfless reasons and had never received any “reward money.” The point came up again and again, whether on direct:

Q: When did the FBI agents come to your house?

A: I don’t remember the date, but it was in November of ’97.

Q: Did you ask them for your reward money?

A: No.

Q: Did you ever get any reward money?

A: No.

Cross:

 Q: You said you were here today to testify because it was the right thing to do. Is that correct?

A: Yes.

Q: And that’s your only motivation in testifying today. Is that right?

A: Yes, sir.

Q: You haven’t receiving [sic] a reward for any of this?

A: No.

Or redirect:

Q: Have you collected one red cent for this?

A: No, ma’am, I have not.

The failure to disclose exculpatory evidence is called a Brady violation,[2] and it’s a classic example of prosecutorial misconduct. After Thomas ran out of post-conviction remedies in state court, he wrote habeas petitions to the feds to relieve both his state and federal convictions and presented his Brady claim. The district court ruled in favor of the United States and the State of Tennessee.

But on February 24, the Sixth Circuit reversed in the state case and ordered the district court to give him his writ unless the State of Tennessee afforded him a new trial. The majority held that the receipt for $750 was material evidence in light of its use to impeach the government’s star witness, and that the prosecutor made Thomas‘ trial fundamentally unfair by hiding it from him.[3]

This vindication of Thomas‘ due process rights is nice and all, but it’s guaranteed not to do him much good. That’s because the Sixth denied him relief on his federal conviction, for the understandable reason that the material the Tennessee prosecutor hid didn’t exist at the time of his federal trial. Unless Tennessee convicts him a second time and manages to carry out the death penalty, Thomas will almost certainly die a natural death in prison.

And for everyone’s sake, we should hope they don’t try to do that. The state’s wasted enough money on a pointlessly bloodthirsty second conviction for a man already sentenced to slow death. It’d be better for everyone involved if the prosecutors dropped it and learned their lesson for future death-penalty cases: disclose if you want them to die.

[1] Not a bad deal either, at $3,975 in cash according to Jackson’s testimony.

[2] After the Supreme Court’s holding in Brady v. Maryland (1963).

[3] One judge dissented, arguing that because Jackson’s testimony was consistent all the way back to ´97 and a member of the FBI task force swore in an affidavit that Jackson wasn’t paid for her testimony, the receipt wasn’t material because Thomas couldn’t have credibly used it to impeach Jackson.

3 Comments on this post.

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  • Scott Jacobs
    27 February 2017 at 9:45 am - Reply

    Unless Tennessee convicts him a second time and manages to carry out the death penalty, Thomas will almost certainly live out his days in prison.

    Dying due the death penalty would also cause him to live out his days in prison.

    Just fewer of them.

    • David Meyer Lindenberg
      27 February 2017 at 9:47 am - Reply

      Haha – fair point! Maybe I should add a note.

      • David Meyer Lindenberg
        27 February 2017 at 10:00 am - Reply

        Alright, changed it to “die a natural death.” Nitpicker. 😀