How Did We Get Here
Vern Braswell, a Black defendant, was charged with first-degree murder in the death of his wife, Sheila, in 2004 in Shelby County (Memphis), Tennessee. Sheila was discovered deceased in their Jacuzzi after complaining about aches, pains, and not feeling well. A medical examiner ruled Sheila’s death a result of manual strangulation. Braswell and a corroborating witness testified that they frequently engaged in erotic asphyxiation during intimacy.
With Braswell’s trial expert saying the death was consistent with erotic asphyxia and the prosecution’s expert saying it was not, Braswell’s character became so hotly contested at trial that on one occasion, an appeals court judge deemed the prosecutor’s frequent character attacks on Braswell at trial “highly inappropriate.” Most of the trial and the subsequent appeals were about Braswell’s character.
After the trial, Braswell was found guilty of second-degree murder. The sentence he would receive ranged from 15 to 25 years. The judge gave Braswell 24 years with no parole.
Braswell felt very good about his chances on appeal. He had evidence in his court file that would directly contradict and overpower the character assassinations he suffered at the hands of prosecutors during trial. He was extremely confident that he would get his sentence drastically reduced. However, if other cases were an indicator, there was also an excellent chance his conviction would be completely reversed.
On appeal, Braswell’s lawyer prepared everything for the judges that he felt would make Braswell’s case for reversing the conviction and ordering a new trial. The prosecutors prepared everything that they felt made Braswell look guilty.
Then something interesting happened …
The evidence in Braswell’s court file that would directly contradict the character assassinations he suffered at the hands of prosecutors disappeared before his file arrived at the court. Of the 15 pages of arguments in the appeal opinion, 14 pages dealt with character issues from the trial, and the best evidence for Braswell dealing with these issues mysteriously vanished from the court records. This left Braswell looking very guilty to the appeals court judges as evidenced by their statements of his “overwhelming guilt.” Naturally, the judges allowed the guilty verdict to stand.
It didn’t end there. Some of Braswell’s sentencing records also mysteriously disappeared before his file made it to the appeal court, therefore he couldn’t effectively challenge his sentence either.
Oh well … no relief … but unlike George Floyd’s death, nobody who cared enough saw it, thus no one reacted.
The next stop for Braswell after the appeal court was back to the local Shelby County court to gather evidence to prove he suffered a wrongful conviction.
Beat Downs by the Judge When No One Who Cares Enough Saw It
Why was America’s, correction, the world’s reaction to George Floyd’s murder so intense and widespread? Because people who cared enough were able to see an indisputable atrocity. But what about the daily atrocities that happen in the courtrooms of America? Why is there no reaction? No one who cares enough can see those daily atrocities, thus no one reacts. If no one saw George Floyd’s murder, it would not have garnered the worldwide attention it received. When we see videos of judges being racially insensitive they are made to account. They are punished like the Altona, New York, Town Court Justice Kyle R. Canning who was called out for posting a noose on his Facebook page as a sign of justice. When we don’t see the misconduct of judges, they get to operate with impunity because … nobody who cares enough sees it, thus no one reacts.
Case in point, a white judge, Paula Skahan, when dealing with Braswell, hurled insults and derogatory remarks at him on numerous occasions. The comments were made to Braswell’s face in open court as well as behind his back during private sidebar conversations at the bench with other attorneys. This showed an obvious bias against Braswell that should have led to the judge’s recusal. However, … nobody who cared enough saw it, thus no one reacted …
The following disparaging remarks were made after the judge falsely accused Braswell of issuing a subpoena in an attorney’s name. Braswell agreed that he issued the subpoena out of frustration brought on by not being able to obtain evidence, but he held firm that he did not forge the attorney’s name on it. The judge’s statements should have resulted in a reprimand or at the very least an apology to Braswell when she cooled down unless this was the judge’s cool modus operandi:
(The following excerpt is from a conversation in the courtroom.)
PETITIONER BRASWELL: I said, well let me issue some subpoenas to try to get this stuff that I know we need. And I know nothing about her name [being added] … I know her new address is 200 Poplar, I wouldn’t put [the wrong address on the subpoena].
THE COURT: It’s right on the subpoena.
PETITIONER BRASWELL: I wouldn’t put an old [address on it] that is not my [handwriting].
THE COURT: I didn’t know who did it okay.
PETITIONER BRASWELL: You said that I did and I was kind of hurt and shocked that she [would say that] … you said that she said [it]. I was telling her I was shocked.
THE COURT: Okay. Mr. Braswell, we have some issues, you are a little sensitive, okay. And I am used to dealing with attorneys and maybe I hurt their feelings, but I don’t reaIIy care. I am used to dealing with people as a judge, okay. I am the only ego in here that I care about. That is basically the way it is, okay.
So deal with it …
The judge later closed with, “I’m not happy about [your case] being on my docket either, believe me.”
… but nobody who cared enough saw it, thus no one reacted …
The judge hurled false accusations at Braswell in open court on different occasions and during one court appearance, she threatened to stop him from presenting any more evidence. When statements by another attorney were made to the judge which illustrated that she was wrong about her accusations against Braswell, there was no apology … but nobody who cared enough saw it, thus no one reacted …
The judge seemed to be compliant or complicit with withheld and suspiciously vanishing evidence on at least two occasions: evidence whose disappearance violated Braswell’s rights … but nobody who cared enough saw it, thus no one reacted …
Not surprisingly, after nine new evidence witnesses bearing testimony which cast serious doubts on Braswell’s murder conviction, the judge issued an order that essentially said, their testimony didn’t matter … but nobody who cared enough saw it, thus no one reacted …
What happens with similar white defendants? The judges themselves seem to care enough and they react by making sure the white defendants get relief. The Black defendants with the exact same issues, they get to go back to their prison cells because … nobody who cares enough sees it, thus no one reacts …
In the cases of white defendants James Young, Laurie Zimmerman, Jennifer Collins, Noura Jackson, Michael Rimmer, and Joshua Bargery, they all had an issue in the Tennessee Court of Criminal Appeals that resulted in new trials for their murder convictions. Braswell had all six of their issues in his one case during his appeal before the same court of criminal appeals; Braswell did not get a new trial like the similarly situated white defendants with fewer errors, Braswell got to go back to his prison cell because … nobody who cared enough saw it, thus no one reacted …
What about the lawyers, surely they care enough …
One of Braswell‘s lawyers, a young Black attorney, did react by speaking out and testifying about withheld evidence in the Braswell case. She got blackballed by the DA’s office (allegedly). She was forced to shut down her law practice and left town. There weren’t going to be any others after that because even with the young Black lawyer … nobody who cared enough saw it, thus no one reacted …
But there was one more Black lawyer who spoke up …
He swore under oath that he was told if he testified a certain way in the Braswell case — presumably if he testified about any violations against Braswell by the prosecutors — it may have triggered unfair criminal charges being filed against the lawyer himself, so while under oath, he added that he felt “pressured” by these revelations when testifying about the Braswell case … but nobody who cared enough saw it. thus no one reacted …
What about Braswell himself, the actual Black defendant?
After the character evidence vanished from the official court files — no explanation — no nothing — no problem. Braswell was made to look very guilty.
After sections of his sentencing record also vanished from the official court files — no explanation — no nothing — no problem, Braswell could not effectively challenge his sentence.
After the personnel records of the prosecutor’s expert county medical examiner, Dr. Joye Carter, who made a false statement under oath during the Braswell case about her vast history of misconduct and improprieties, those personnel records vanished. “There‘s no record she ever worked [at the Shelby County medical examiner’s office]” — no explanation — no nothing — no problem.
After the young Black attorney for Braswell stumbled upon a sealed envelope of withheld evidence and documents in the Braswell file at the prosecutor‘s office, before the contents of the envelope could be shown to the lawyer … you guessed it … it also vanished — no explanation — no nothing — no problem.
In the case of white defendant, Noura Jackson, an envelope of withheld evidence in the same offices, contained evidence of innocence in the Jackson case. Prosecutors actually turned it over to Jackson’s attorneys. That was not the case with Braswell. The withheld envelope of documents and evidence from Braswell’s case vanished from the office of the prosecutor — no explanation — no nothing — no problem.
Cameras? The Solution?
Where’s a camera phone when you need one to capture and document racism?
By the way, the Tennessee Court of Criminal Appeals judges said the young Black attorney for Braswell should have used a camera phone to take a picture of the sealed envelope of documents and withheld evidence, but since she did not, no relief! The implication was, since she didn’t do a better job of catching the prosecutors before the evidence vanished, you lose. Guess what? … nobody who cared enough saw it, thus no one reacted …
Apparently, that’s the solution to the whole damn system because that’s what they respect, cameras and transparency. With cameras in the courtrooms all day every day, people who care enough will be able to see the atrocities that happen on a daily basis. Then they’ll react like the world reacted to George Floyd’s murder.
That Best Evidence … and Why Did It Matter?
Back to that “best evidence which painted Braswell in a very different light which vanished from the official court files.”
In 2005, prior to Braswell’s trial, there was a bond hearing held for him. Dozens of West Tennesseans wrote the judge about Braswell’s decade of compassionate acts. The letters described Braswell taking care of the families of homeless students; ministering to prisoners on a weekly basis; working with alcoholics, drug addicts and their families; raising money for victims of natural disasters, fallen officers and families of murder victims; taking underprivileged children on field trips to the nation’s capital, and a litany of other philanthropic acts that were so moving that apparently someone was willing to move them right on out of the court files. One letter specifically talked about how happy his wife Sheila was in the marriage just three days prior to her death.
Following a George Floyd march and moment of reflection by the Memphis and Shelby County legal community, someone from that community, who appeared to participate in the march, anonymously sent Braswell an apology letter along with a batch of the original missing character letters. The sender explained that the letters were removed from the court files to keep the appeals court judges from seeing them in an effort to sabotage the appeal. An expert verified that these were the original signed letters. That meant these were the letters that were mailed to the judge, added to the court “secured” records, and then mysteriously vanished before the Tennessee Court of Criminal Appeals judges could see them.
I wonder if the criminal justice system believes that it suffers from racial inequalities …
I wonder if there will even be a reaction …
BONUS
… FROM A LEGAL PERSPECTIVE ON THE CHARACTER LETTERS?
- Jennifer Collins, a white woman, was convicted of second-degree murder of her newborn when it was determined that she drowned the infant. Collins was given a 15-year sentence.
- Collins also had tons of character letters, just like Braswell — in the Tennessee Court of Criminal Appeals. The appeals court reversed Collins’s conviction and ordered a new trial after the court talked at great length about all of the support letters Collins had … just like Braswell.
- At worst, it is a definite possibility that the appeals court would have knocked years off Braswell’s sentence if those letters and his sentencing information had not mysteriously disappeared.
- However, since character was such a big issue at Braswell’s trial, there’s also a good chance that the appeals court would have reversed the conviction and ordered a new trial, if those character letters had not mysteriously disappeared.
- It looks like someone felt the same way and took action to make sure it didn’t happen.
This is Part 1 in a 6-part series that will be published over the next two weeks.
- Part 2: A White Judge’s Attitude Toward a Black Man in Court
- Part 3: How Courts Handled Evidence in a Black Man’s Trial
Photo credit: Stan Carroll, The Commercial Appeal
