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VOL. 129 | NO. 9 | Tuesday, January 14, 2014

Henderson Censure Latest Chapter in Death Penalty Case

By Bill Dries

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A veteran Shelby County prosecutor has been censured by the Tennessee Board of Professional Responsibility for his conduct in a high-profile death penalty case from the 1990s that is scheduled to be retried later this year in Shelby County Criminal Court.

The board, which is part of the Tennessee Supreme Court, censured Tom Henderson, a 38-year career prosecutor with the district attorney general’s office who currently supervises felony case prosecutors.

The censure does not limit or bar Henderson from practicing law or performing any of his other duties with the district attorney general’s office.

Henderson is censured for his conduct in the murder trial of Michael Rimmer, who was convicted by a Memphis jury in 1999 of first-degree murder and aggravated robbery for the 1997 death of Ricci Ellsworth, the night clerk at the Memphis Inn motel. The same jury sentenced Rimmer to death.

Ellsworth’s body has never been found, but the check-in counter of the motel where she worked showed signs of a violent and bloody struggle.

Rimmer had raped Ellsworth in 1989, pleaded guilty to the rape and served time in prison for it. He was released from prison four months before Ellsworth’s death.

Rimmer was arrested in Indiana a month after the murder, and investigators found blood in the back seat of his car that was a DNA match for Ellsworth’s blood and the blood at the motel. Rimmer had traveled through seven other states between Memphis and Indiana.

While in custody in Indiana awaiting extradition to Memphis, Rimmer escaped and was captured after a car chase there.

There was other evidence from the investigation that Henderson did not turn over to Rimmer’s attorneys. And it was that evidence that led to Henderson’s censure.

James Darnell reported to police and the FBI that he saw two men at the Memphis Inn at about the time of the murder. One was bleeding from his hands, and the other was on the other side of the check-out window. He told investigators that he believed the man behind the window was the motel clerk and paid him and left. Darnell was shown two pictures of suspects, including Rimmer, and did not identify Rimmer as either of the two men he saw that night.

The Tennessee Board of Professional Responsibility’s censure of veteran Shelby County prosecutor Tom Henderson doesn’t bar him from practicing law.

Authorities made composite drawings from Darnell’s descriptions, which weren’t allowed by the trial court at the sentencing hearing at which Rimmer was sentenced to death.

Shelby County District Attorney General Amy Weirich noted that in the censure, the board “has taken no action to restrict Tom in continuing his work to protect the citizens of Shelby County.”

She also noted that Rimmer’s retrial was ordered because of a finding that he had ineffective legal counsel.

“Prosecutors are the only class of lawyers with special responsibilities to ensure due process,” Weirich added in a written statement. “We accept those responsibilities. This office has been and remains wholly committed to pursuing justice while protecting the rights of the accused.”

In 2012, Criminal Court Judge James Beasley ordered a new trial for Rimmer based on Rimmer’s legal claim that he had ineffective counsel during the trial who should have been able to find other references to Darnell’s account and interviews by investigators. Beasley specifically disqualified Henderson from prosecuting Rimmer in the retrial because of the exculpatory evidence.

The potentially exculpatory evidence had come up before in the long appeals court record of the case, specifically Rimmer’s appeal of the death sentence.

In 2000, the Tennessee Court of Criminal Appeals ruled there were “discernable numerous errors” in Rimmer’s first sentencing hearing “which considered cumulatively, so seriously undermine the majority’s confidence in the result of the proceeding that reversal and remand for a new sentencing hearing is required.”

There were errors by the jury in finding twice as many aggravating factors in sentencing Rimmer to death as were valid, including aggravated burglary, which is not considered a violent crime.

The trial judge, the late W. Otis Higgs, corrected the verdict form, which the appeals court also found was an error.

The jury had problems filling out the verdict forms, and the appeals court judges said the case “vividly illustrates the difficulty jurors face in understanding and completing the standard verdict form and the perils which may ensue when a trial court attempts to divine intent and speak for a jury which has completed a verdict form in an ambiguous manner.”

The Tennessee Supreme Court later ruled the drawings of suspects from Darnell’s description were relevant to sentencing “because they would tend to show that the police had a more reasonable basis for considering these other suspects during the course of the investigation.”

A second jury again sentenced Rimmer to death, and on appeal, the Tennessee Supreme Court upheld the death sentence.

Beasley’s ruling sent the entire question of Rimmer’s guilt or innocence back to trial court.

An earlier on line version of this story included the wrong picture. The Daily News regrets the error.

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