Dismissals, venue changes, delaying trial among deadline motions in Tyre Nichols federal case
As a trial date approaches for the former Memphis police officers accused of violating Tyre Nichols' civil rights when they pulled him over and beat him in January 2023, the defendants are asking the judge to dismiss the indictment against them.
The motions to dismiss came just before Wednesday's deadline to file motions and were filed alongside motions requesting a venue change, limiting expert testimony and a request to push the trial date back multiple months.
The five ex-officers — Tadarrius Bean, Demetrius Haley, Emmitt Martin, Desmond Mills and Justin Smith — were federally indicted on four counts in mid-September last year. The four-count indictment charges the former officers with using excessive force, exercising deliberate indifference, witness tampering and conspiracy to witness tamper.
The latest: Federal criminal trial in Tyre Nichols case pushed back. Here's why and when it will be
Mills entered a plea agreement on Nov. 2.
The trial had been set to start in May and has now been pushed back to the fall. Attorneys had questioned whether May would be a feasible deadline with over 800 gigabytes of discovery to mull over, and a judge agreed.
There were 34 filings in the days leading up to the filing deadline. Here's a round-up of the most important motions that were filed ahead of it.
U.S. Attorney's Office submits list of experts for testimony
At the end of January, per a court order, the U.S. Attorney's Office filed two lists of experts it intends to call during the trial for testimony. Here's a list of who they plan to call, and what they might testify to:
Dr. Marco Ross conducted Nichols' autopsy and will testify to the wounds he suffered, and the findings listed in the autopsy report.
Dr. Rebecca Folkerth is a neuropathologist and the medical examiner for New York City. She was called in by Ross to confirm Nichols' cause of death, which has been listed as blunt force trauma to the head.
Dr. Mohammad Assaf was Nichols' physician and neurologist while he was at St. Francis Hospital. He has been called to testify to the importance of urgency in treating patients like Nichols.
Dr. Peter Law was the attending physician for Nichols at St. Francis Hospital.
Daniel Anderson is a toxicologist with NMS Labs and conducted Nichols' toxicology screen. He analyzed blood, urine and tissue samples and was called to speak on his findings.
Juan Gonzalez is an officer with the Memphis Police Department and academy trainer who taught Haley and Martin, two of the charged former officers. He is expected to testify that the traffic stop and use of force were inconsistent with the training he provided.
Larnce Wright is an MPD officer and academy trainer. He is expected to testify about the use of force continuum.
Kevin Barrett is a lieutenant with MPD and part of the training academy. Prosecutors expect him to testify that the traffic stop was not conducted the way it was taught at the academy.
Zayid Saleem is a former senior attorney for the City of Memphis and MPD instructor. He retired in 2022 and is expected to testify about the training he provided when he worked, with a focus on officers' duty to intervene.
Tracey Branch is a former FBI agent who provided MPD recruits with a training course on federal civil rights and police corruption.
Multiple motions to dismiss were filed
Bean filed a motion to dismiss on Jan. 24, and his attorney argued that counts two, three and four of his indictment should be dismissed citing “no specific factual assertions” in the indictment as to those charges.
“To prevent a miscarriage of justice, the prosecution should not have indicted and charged defendant Bean with counts that are not provable using the facts and discovery presented,” the motion read. “Under the plain language of the indictment, Bean cannot be made aware of how the allegation can be either proved or defended at trial.”
The motion also alleged that prosecutors did not give Bean “fair notice” of the charges.
Martin also moved for dismissal of the indictment for vagueness and insufficiency.
More: Tyre Nichols footage: 6 quotes that expand what we know about his beating, death
Two separate motions — one for the first two counts and another for the third and fourth counts — were filed citing the same reasons as Bean in his motion to dismiss.
“Counts 1 and 2 should be dismissed because they violate Mr. Martin’s right to due process of law because they fail to allege the facts constituting the charged offenses and otherwise fail to put him on notice of the charged offenses,” Martin’s motion read.
A second motion for the third and fourth counts cites similarly vague language as a reason for dismissal.
“Both counts 3 and 4 are unconstitutionally and statutorily insufficient because they allege that the defendants corruptly persuaded, and attempted to corruptly persuade, MPD supervisor 1 and MPD detective 1 but do not define corruption, much less corrupt persuasion, and make no allegation that Mr. Martin, or his codefendants, engaged in any actual persuasion,” the second motion read.
Bean and Smith both signed on to this motion to dismiss.
In addition to Martin's motion to dismiss along the same lines at Bean's, Martin filed two separate motions to dismiss that argued duplicity.
Martin on Tuesday filed a motion to have the indictment against him dismissed outright, with his attorneys arguing that each count included multiple charges, hence violating Martin’s due process protections and protection from double jeopardy under the Sixth Amendment.
The motion requests that the indictment be dismissed and a “constitutionally valid indictment” be brought for the case to move forward.
Attorneys for Martin argue that the indictment is “duplicitous” because a jury could not return a unanimous verdict due to multiple crimes being alleged in each count.
“Should the court determine that the indictment’s duplicity does not warrant dismissal, the court should force the government to make a pretrial election of the charge within each count that it intends to rely,” the motion read. “While pretrial election will not cure the constitutional deficiencies with the duplicitous indictment, and the appropriate remedy here is dismissal, pretrial election at minimum assists in protecting Mr. Martin’s Fifth Amendment protection from double jeopardy, his Sixth Amendment right to a unanimous jury verdict and his Sixth Amendment right to present a defense.”
Martin's attorneys file to change venue, survey claims biases among potential jurors
Martin’s attorneys also filed a motion Tuesday to have the case heard in the Eastern Division of Tennessee’s Western District Court. That division is located in Jackson.
Similar to prior motions for a venue change, Martin's motion points to extensive media coverage. Martin’s attorneys argue that the coverage has tainted the jury pool and prejudiced the majority of potential jurors against the defendants, making it impossible for them to receive a fair trial.
Separately from other motions, Martin’s contains a report from a researcher that polled 229 potential Western Division jurors and 125 from the Eastern Division. The report found that about 93% of Western Division respondents who were familiar with the case believed the former officers are guilty of using excessive force, with 88% responding that they believed they are guilty of murder.
The report also found that 82% of respondents said they would have a difficult time being convinced that the defendants were not guilty of using excessive force and 78% replied that they felt the same way about the murder charges.
About 90% of the respondents said they recognized the case in the Western Division and 70% said they did in the Eastern Division.
However, for those who said they recognized the case in the Eastern Division, the report found that about 90% of respondents believed the defendants were guilty of using excessive force and 79% said they believed they were guilty of murder.
About 78% of the Eastern Division respondents said they would have a difficult time being convinced the defendants were not guilty of excessive force and 78% said the same for murder.
Those surveyed in the Eastern and Western Divisions had similar breakdowns in terms of gender and age, with the Western Division skewing slightly younger.
However, the respondents from the Western Division were 48% white, 46% Black and the remaining 6% were persons of color. The Eastern Division respondents were 83% white, 13% Black and 4% were other persons of color.
Smith, another former officer, on Wednesday filed a notice of joinder to Martin’s motion for a change in venue. Haley, who had previously filed for a venue change which the U.S. Attorney’s Office objected to due to prejudice being speculative, pointed to the survey conducted in Martin’s motion as evidence.
In court Thursday, Federal Judge Mark S. Norris requested another survey be done over the phone to create a more randomized sample group. This survey, according to one of Martin's attorneys, was conducted via the internet due to time constraints.
Defense requests trial be pushed back months
Martin’s attorneys requested the trial date, along with all other deadlines, be pushed back four months. According to the filing, prosecutors had not objected to the request as of Wednesday night.
The new trial date would be set for after Aug. 26.
“Absent this requested continuance, Mr. Martin will be deprived of the effective assistance of counsel, the representation by counsel of choice, the ability to make and present a defense, confrontation, due process and a fair jury trial,” the motion read.
His attorneys argue in the motion that because of the case’s complexity, it is nearly impossible for attorneys to be prepared for trial in accordance with the 60-day time limits laid out in the Speedy Trial Act.
“This motion is not made for the purpose of procrastination or unreasonable delay in this matter or some other improper purpose, but rather so that counsel may provide the defendant with the effective assistance of counsel to which he is entitled, that the defendant receive zealous representation and that the defendant, through counsel, be able to adequately review discovery, research potential issues to be raised via motion, investigate and develop evidence necessary to present a defense to the charged offenses and engage in preparation for trial,” the motion read.
This motion was granted at a report date Thursday, and the trial is now set to begin Sept. 9.
Defense requests hearing on what evidence will be admissible
Martin’s attorneys Wednesday filed a motion requesting a hearing about the admissibility of statements that the government plans to use to indicate there was a conspiracy to cover up the beating.
“A hearing to determine the admissibility of any statements… is constitutionally necessary here because, given the allegations in the indictment, volume of discovery, multiple defendants and lack of specificity provided by the government to date over what items provided in discovery the government intends to introduce in trial, a pretrial determination of the admissibility of what hearsay the government intends to introduce will avoid confrontation, severance and fair trial issues manifesting themselves mid-trial, warranting a mistrial,” the motion read.
Martin’s attorneys said without a hearing to determine what can and cannot be admitted as evidence, the trial risks being “injected with inadmissible hearsay.”
Questions over allowing expert opinions on use of force remain
Haley’s attorney also filed a motion Wednesday that would limit who could testify to the use of force used against Nichols. The motion was filed in response to the prosecution’s witness list, where multiple law enforcement individuals were included, identified as “hybrid or expert testimony” people.
According to Haley’s attorney, the law enforcement witnesses should not be allowed to offer expert testimony about use of force if they will be determined as laymen and not experts.
Haley’s attorney also objected to assigning the law enforcement witnesses the “expert” designation in a separate filing. According to the attorney, the U.S. Attorney’s Office should be prevented from entering them as experts because the office did not make the disclosure before the deadline and that the notice provided was not detailed enough.
More: As some Memphis officers joked about Tyre Nichols beating, others criticized special unit
“The notice makes clear that the government knew as early as April and May 2023 it intended to introduce expert testimony on what it describes as ‘use of force issues,’” the motion reads. “This fact, combined with the insufficient notice filed demonstrates that the delay is inexcusable and outright exclusion of any expert testimony on ‘use of force issues’ [is] the least severe sanction necessary.”
The objections from Haley’s attorney do not include these people testifying to what they each did or taught in connection with MPD, and are only objections to opinions being admitted.
The two motions were joined by Smith, Martin and Bean Wednesday.
Defense says it is still missing aspects of discovery
Haley’s attorney filed Wednesday a motion to compel the “material underlying the official forensic biology report” that was turned over during discovery.
That report, the motion read, contains results from DNA testing done on clothes and footwear worn by each of the former officers charged in the case.
Haley’s attorney wants the material relating to the report since he has contracted a consultant to explain the results. Some of that material was turned over by the U.S. Attorney’s Office, according to the motion, and the prosecutor said he would check with the Tennessee Bureau of Investigation for the remainder.
The motion, according to Haley’s attorney, was filed in anticipation of it being needed should the material not be turned over after the motion deadline passed Wednesday.
Martin joined Haley in this motion.
Defense doubles down on vagueness of indictment
Multiple motions from defendants have requested the U.S. Attorney’s Office file a bill of particulars, a filing that details the charges against the former officers.
Those requests come in conjunction with motions to dismiss the indictment, each citing that the indictment is too vague for an adequate defense to be made.
Some motions have been sealed, possibly relate to character evidence
Multiple sealed motions and documents have been filed, with the only descriptor of the motions being “use of improper character evidence.”
In early October, defense attorneys alleged that Nichols had a hallucinogenic substance along with stolen debit and credit cards in his car the night he was pulled over. Those filings said that the possession of those items were not known to defense attorneys and the officers until later, when findings from the Tennessee Bureau of Investigation’s catalogue of Nichols’ car were obtained in discovery.
Hallucinogens being found in the car have not mentioned by any party in open court or other filings, but defense attorneys alluded to and outright alleged Nichols was high.
The most recent release of additional footage from the night Nichols was pulled over and beaten included a clip of former Officer Preston Hemphill, a member of the SCORPION Unit who was fired but never criminally charged with Nichols’ death. That clip showed Hemphill, walking around what appeared to be Nichols’ car, and telling another officer that there was nothing illegal in the car.
“Ain’t nothing in that car, so I don’t know what he was trying to hide,” Hemphill could be heard saying. “Or he was just on something.”
Hemphill’s comment seemed to imply he had already searched the car and found nothing illegal.
Lucas Finton is a criminal justice reporter with The Commercial Appeal. He can be reached at Lucas.Finton@commercialappeal.com, or (901)208-3922, and followed on X, formerly known as Twitter, @LucasFinton.
This article originally appeared on Memphis Commercial Appeal: See the last-minute filings in Tyre Nichols federal criminal case
