Court examines resentencing of black death row inmate based on claim of racism

NASHVILLE — The fate of a black death row inmate in Tennessee, whose sentence was reduced to life in prison over concerns about racism at his trial, is up in the air after the Tennessee Court of Criminal Appeals on Tuesday heard an appeal of the sentence reduction.

Abu-Ali Abdur’Rahman was sentenced to death for the 1986 murder of Patrick Daniels. He was scheduled to be executed in April, but last fall a judge resentenced him based on claims that prosecutors had illegally excluded African Americans from the jury pool.

Abdur'Rahman had filed to reopen his case in 2016, shortly after the U.S. Supreme Court overturned the conviction of a different black death row inmate in Georgia, finding prosecutors had illegally excluded African Americans from the all-white jury that determined Timothy Foster’s fate.

In Abdur'Rahman's case, prosecutors’ notes from his trial showed they treated blacks in the jury pool differently from whites, according to court records. For example, prosecutors told the judge they were excluding a black a college-educated preacher because he appeared uneducated and uncommunicative, while white jurors who truly were uneducated were allowed to serve.

Abdur’Rahman’s attorneys have also pointed to a panel at a Tennessee Attorney General's Conference where John Zimmerman, the attorney who prosecuted Abdur'Rahman's case, explicitly mentioned using race in jury selection. Zimmerman described seeking black jurors for a case where the defendants were Hispanic because "all blacks hate Mexicans," according to court records.

Current Nashville District Attorney General Glenn Funk was among those who denounced Zimmerman's comments. When Abdur'Rahman asked to reopen his case, Funk decided to negotiate rather than fight. The agreement reached would reduce Abdur'Rahman's sentence to a life, and it would be served consecutively with two other life sentences, so there would be no possibility he would leave prison. In return, Abdur’Rahman agreed to give up any further legal challenges.

The trial court judge approved the order in August but before it could become final, the Tennessee Attorney General's Office appealed. At the Tuesday hearing, Deputy Attorney General Zachary Hinkle argued that the trial court judge did not have the authority to modify Abdur'Rahman's sentence based merely on an agreement between the two parties. There should have been a petition, a hearing and a review, Hinkle said. And the court should have decided whether the U.S. Supreme Court's Georgia case creates a new and retroactive law that could then be applied to Abdur'Rahman's case.

Those steps were short-circuited when the judge accepted the agreement between prosecutors and Abdur'Rahman, Hinkle said, arguing the judge's order approving the agreement should be vacated.

Judge Tommy Woodall said it “appears that the trial court skipped a step.” The court should have made a finding that Abdur'Rahman was entitled to relief, vacated his sentences and then considered his agreement with prosecutors.

“Some might see it as form over substance,” he said. “I see it as the steps that have to be taken.”

David Esquivel, representing Abdur'Rahman, conceded there was some “blurring” of the separate steps. If the court is concerned about that, he said, they could send the case back to the trial court with directions to redo the proceedings.

But Esquivel also argued that the attorney general's office does not have the right appeal the agreement made by the district attorney because both the attorney general and the district attorney represent the same party, the state.

“A party cannot ask one lawyer to enter an agreement in the trial court and then ask a different lawyer to upend that agreement on appeal,” Esquivel argued. “No party can do that, not even the state.”