TBA Law Blog

Posted by: Donald Paine on Aug 1, 2012

Journal Issue Date: Aug 2012

Journal Name: August 2012 - Vol. 48, No. 8

Today the coram nobis (“before us”) remedy helps a few clients convicted of crimes. We’ve had it in Tennessee since 1955, and it’s now codified at Tenn. Code Ann. §40-26-105. Although that statute purports to incorporate procedures governing the writ in civil cases, the civil statutes were superseded in 1971 by adoption of Tennessee Rule of Civil Procedure 60.02 and the Advisory Commission Comment. Confusingly, Tenn. Code Ann. §§ 27-7-101 through 108 are still in Volume 4A of the official Code. Even more confusing is that the superseded one-year statute of limitations in §27-7-103 is routinely relied upon today! The year begins to run on the date a judgment of conviction becomes final in the trial court. State v. Mixon, 983 S.W.2d 661 (Tenn. 1999).

What does the writ of coram nobis remedy do for the convict? It allows consideration of newly discovered evidence that, if admitted at trial, might have resulted in a different judgment.

A fascinating case illustrating the writ of error coram nobis procedure involved Margo Freshwater. She was only 18 in 1966 when she traveled from Ohio to Memphis to check on a jailed boyfriend. The jailbird’s lawyer was unethical Glenn Nash, age 38. Freshwater’s body became the attorney fee. Nash coerced her into remaining with him while he went on a murder spree. Victims were Hillmon Robbins Sr. in Memphis (Dec. 6, 1966), Esther Bouyea in Florida (Dec. 18), and C.C. Surratt in Mississippi (Dec. 27).

On Dec. 28 Nash and Freshwater were arrested in Greenville, Miss. Nash conned shrinks into believing he was insane, so he was sent to asylums. Margo Freshwater was tried twice in Mississippi, with two hung juries.

In February 1969 she was tried in Shelby County. Verdict? Guilty. Sentence? Ninety-nine years in the penitentiary. (She dodged the death penalty by one vote.)

She escaped from the Tennessee Prison for Women on Oct. 4, 1970, by jumping over the fence. Over three decades later, on May 19, 2002, she was captured in Columbus, Ohio. By then Margo Freshwater was Tonya McCartor, a married mother and grandmother.

After capture she obtained the pro bono assistance of Robert W. Ritchie and Stephen Ross Johnson of the Knoxville Bar. Through herculean legal efforts, including three appeals, they were able to get coram nobis relief for their client. Due process required tolling of the limitations year. A statement by Nash to cellmate Johnny Box exonerating Margo Freshwater from the three killings was intentionally hidden by prosecutors and not disclosed to defense counsel. Because that newly discovered evidence might have resulted in a different judgment back in 1969, coram nobis relief was granted in 2011. Margo Freshwater/Tonya McCartor was entitled to a new trial. Freshwater v. State, 354 S.W.3d 746 (Tenn. Crim. App. 2011).

Sadly, my classmate Bob Ritchie died of cancer along the way. But Steve Johnson carried on the fight. He was able to negotiate a best interest plea. Mrs. McCartor was released and returned to her Ohio family on Nov. 1, 2011.

DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.