Tyre Nichols records must be categorized, redacted prior to release, judge says
Records collected during the City of Memphis' administrative investigations into the beating of Tyre Nichols in early January will be categorized by what prosecutors and defense attorneys agree can be made publicly available prior to their release, a Shelby County Criminal Court judge said Friday morning.
Shelby County Criminal Court Judge James Jones Jr. had previously signed a court order blocking the release of the records until the defense attorneys had reviewed them, but a motion to intervene filed by a coalition of news media outlets, including The Commercial Appeal, asked for those records to be released quickly.
"In high-profile criminal cases, the more the public is allowed to know, the better, as long as the court is able to continue protecting the fair-trial rights of the defendants," said Media Coalition attorney Paul McAdoo. "So we have a two-step process right now. The state is going to put together what it thinks can be released, and the defense counsel will have an opportunity to object, and then the Media Coalition will have a chance to weigh in."
The records were initially slated to be released March 8 by the City of Memphis, but a last-minute motion from defense attorney Blake Ballin, who is representing former Memphis Police Officer Desmond Mills Jr., and signed by the other four defendants, placed the release on hold.
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"The court orders that the release of videos, audio, reports, and personnel files of City of Memphis employees related to this indictment and investigation (to include administrative hearings, records and related files) shall be delayed until such time as the state and the defendants have reviewed this information," the court order preventing the release of the documents read. "The release of this information shall be subject to further orders of this court and, in the public interest, will be ordered as soon as possible."
The contents of the records is unclear, but City of Memphis Chief Legal Officer Jennifer Sink has said there are more than 20 hours of audio and video footage contained in the records. In court Friday, Assistant District Attorney Paul Hagerman said there are also personnel files and Garrity statements — which are statements made during internal investigations — among "2,000 or 3,000 pages of documents."
The Garrity statements are not likely to be released. But, some records that reference those statements could be redacted prior to their release, Shelby County District Attorney Steve Mulroy said.
"The table of contents [in the index] will exhaustively go over everything so that the judge can look down and see what kind of document this is, and how long it is. Then we will indicate what we think the appropriate result is in terms of release, but not Garrity statements," Mulroy said after the hearing. "Basically, we've got three different categories. If it's a Garrity statement, we don't think it should be released. If it's a non-Garrity statement, that nonetheless refers to some Garrity material, we think is should be redacted and then released. Everything else should be released."
Jones said the Shelby County District Attorney's Office will compile an index of the records the court received from the City of Memphis by June 5. Defense counsel will have the opportunity to object to the records they do not want released, and those objections are due by June 23, which is when the five officers will next be in court.
All five defense attorneys — each representing a different officer in the case — argued which records should be publicly available, and which should not. Ballin argued that the records produced from the city's internal investigation should not be made publicly available, saying they fall into discovery, even if they have not been called discovery specifically.
"The information the MPD has given, it is discovery," Ballin said in court. "You can put lipstick on it, but it's still discovery."
When talking with reporters after the hearing, Ballin said the information from those city documents cannot be released, citing Supreme Court decisions.
"Our Supreme Court says that none of this gets released, and it never does," Ballin said. "MPD is talking about being transparent, which is great politically. But it just doesn't hold up when you're talking about balancing rights to a fair trail — which is why every single other time, in my experience, they say, 'We can't comment on that.' Now, all of the sudden for political reasons, they want to dump everything out there."
Ballin also called the city's decision to turn the records over to the court before releasing them publicly was "politically expedient."
The Memphis Police Department, in my experience — I've been doing this for a while — has never just turned over their whole investigative file and said, 'Here you go, media, take.' They never do it because they can't, because they have a duty to protect defendants' rights to a fair trial. They have a duty to protect the state's rights to a fair trial. They have a duty to protect the investigation, but it is politically expedient in this case for them to say somebody else made the decision."
Four videos, including footage from body-worn cameras and a SkyCop camera, were released in late January after five officers — Mills Jr., Demetrius Haley, Tadarrius Bean, Emmitt Martin III and Justin Smith — were fired and indicted for Nichols' death. All five face one count of second-degree murder, two counts of aggravated kidnapping, one count of aggravated assault, one count of official oppression and two counts of official misconduct.
Later in the city's administrative investigation, Memphis police officer Preston Hemphill would be fired. Mulroy has said Hemphill will not face criminal charges, and is expected to testify for the prosecution.
Lt. Dewayne Smith, the supervisor of the SCORPION Unit — the unit that the six known officers belonged to — resigned before his administrative hearing took place. The hearing officer, in records obtained by The CA from a decertification request sent by the Memphis Police Department, determined Smith would have been fired had he not resigned first.
An additional, unknown officer was fired from the department, and three others were suspended. Two more officers were investigated, and had their internal charges dismissed.
Nichols was killed by blunt force trauma to his head, according to his autopsy report. The manner of death was listed as homicide, and the report went on to detail the bleeding in his brain and the failure of his liver and kidneys.
He was taken to St. Francis Hospital in critical condition after being beaten by officers the night of Jan. 7. He was intubated at the hospital and pronounced dead three days later.
Lucas Finton is a criminal justice reporter with The Commercial Appeal. He can be reached at Lucas.Finton@commercialappeal.com and followed on Twitter @LucasFinton.
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This article originally appeared on Memphis Commercial Appeal: More Tyre Nichols records & footage to be released after indexing, redaction
