Will prosecutors pursue a new trial against a Black woman jailed for a voting error?

Hello, and happy Thursday,

On Monday morning, I’ll be in Memphis, where Pamela Moses is set to make her first court appearance since having her six-year prison sentence for trying to register to vote overturned. Moses, a 44-year-old Black Lives Matter activist, will probably find out whether prosecutors intend to pursue a new trial against her.

Part of why I’ve been so interested in the case is because it offers one of the starkest examples of disparities in punishment Black people face when it comes to voting errors. Just to recap the case so far:

Amy Weirich, the district attorney prosecuting the case, has not yet decided whether to pursue a retrial, a spokesman told me on Wednesday. Moses and her lawyers are pushing to have the case dropped.

The document in question is a form that anyone with a felony conviction has to get filled out if they want to vote. On 3 September 2019, a probation officer signed and filled out the form for Moses and incorrectly said she had completed probation (in Tennessee, people with felonies can only vote once they complete their sentences entirely, including probation). Moses was also ineligible to vote because she was convicted of tampering with evidence, one of a handful of crimes that causes you to permanently lose your voting rights in Tennessee, something the probation officer was also unaware of.

Even though Moses never signed the form, prosecutors still charged her with a felony because they said she knew she was ineligible. She knew she was ineligible, prosecutors argue, because she was trying to run for mayor in 2019 and courts had told her repeatedly that she couldn’t appear on the ballot because she was still on probation.

As I’ve followed Moses’ case for the last few months, I’ve become really interested in a question that wasn’t discussed at her trial and remains unanswered: why did she decide to get the probation office to fill out the form and register to vote in 2019 in the first place?

Kirby May, the prosecutor who handled Moses’ case, offered a simple answer to this question during her trial. Moses, he said, was like a child who keeps going “gimme, gimme, gimme” to their parents, he said, determined to get what she wanted.

“She knew what she was doing on September 3. She was desperate to try to get her rights restored, she wanted to run for mayor,” he said, according to a trial transcript. “She was desperate. She didn’t care, she was going to try anyway. This was her last-stitch [sic] effort.”

Moses told me she only filled out the voting document because the elections commission encouraged her to do so. In the late summer of 2019, she received a letter from the elections commission telling her there was an issue with her voter registration. She was confused and called up the elections commission, which told her to get her rights restored.

“I didn’t know I had to go through the process again of restoring, doing the form, until they sent me notice that I was no longer able to vote,” she told me the first time we spoke, back in December. “They told me to do it. They said that had to be done before I could re-register.”

Internal records from the Shelby county election commission, obtained through a public records request, support Moses’ recollection. They indicate Moses was sent a letter on 20 August 2019 informing her that she was being cancelled from the voter rolls because of a felony conviction. But the elections commission has been unable to produce a record of the actual letter. The two election employees who testified during Moses’ trial, including one who specializes in restoration of voting rights, were not asked whether they encouraged her to go through the process.

The underlying issue in Moses’ case is whether she knew was ineligible to vote when the probation officer signed off on the form. So it could be potentially significant to know what, if anything, election officials told her about going through the process. “It may not be the ‘smoking gun’ that requires an acquittal, but this still supports her version that she received a permissive letter and therefore did not knowingly make a false entry,” said Bennett Capers, a former federal prosecutor who teaches law at Fordham University.

There’s another issue that complicates whether Moses knew the information on the form was false. Moses was ineligible to vote because she was on probation, but the form doesn’t say anything about probation. It says someone can vote if they’ve been released from “supervision”. When Moses filled out the form, she was on unsupervised probation, which could have reasonably led her to believe she was eligible, her lawyer during her trial argued. Even the judge supervising the case got tripped up over this.

“She’s still on probation. She’s never received a final release from supervision. I guess that depends on how you interpret supervision,” the judge said.

As I’ve been preparing to cover Moses’ potential retrial, I’ve also been curious to learn how common it is for someone in Tennessee to be charged with the specific crime Moses faces, knowingly consenting or making a false entry on an election document. It doesn’t seem to very common at all.

In Davidson county, home to Nashville, the clerk’s office told me they had no record of someone being charged under that specific statute in their database. Clerks in Knox and Hamilton counties said the same.

In Shelby county, where Moses lives, there are 79 instances in which that charge has been used. Just one case in the last 10 years has been filed under it, the clerk’s office said. That case is Moses’.

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