New evidence undermines case against Black US woman jailed for voting error

Hello Fight to vote Readers,

I have an update in my reporting on the case of Pamela Moses, the 44-year-old Black Lives Matter Activist in Memphis who was sentenced to six years in prison for trying to register to vote. The case has attracted significant national attention because many see Moses’ sentence as too severe and a clear example of disparities in the US criminal justice system.

The prosecution’s case is built around the argument that Moses knew she was ineligible to vote because she was on probation, and people on felony probation in Tennessee cannot vote. Indeed, a few months before she tried to register, a judge had issued an order telling Moses her probation was ongoing. But nevertheless, prosecutors argued, she convinced a probation officer into signing a form saying she was eligible to vote and then knowingly submitted the document knowing it was false. “You tricked the probation department into giving you documents saying you were off probation,” W Mark Ward, the judge who sentenced Moses, said in January.

Moses, for her part, told me she did not know she was ineligible and her lawyers have said she went to the probation office genuinely seeking clarity about whether she could vote. A new email I obtained through a public records request adds to evidence undercutting the claim that Moses tricked the officer.

In September 2019, just two days after a probation officer mistakenly signed a certificate telling Moses her probation was complete, officials at the Tennessee department of corrections investigated how exactly their employee made the error. Their investigation didn’t find that Moses had deceived a probation officer, but rather that the officer had made a good-faith mistake.

The review found that the probation officer – referred to as Manager Billington – spent about an hour investigating whether Moses was still on probation. Billington came across a note in Moses’ file noting that in 2016, she had been placed on supervised probation for two years. Even though the system said that Moses remained on unsupervised probation, Billington thought this was a mistake. The person who handled the file, he believed, forgot to close out the case when the supervised probation ran out. That’s why he ultimately signed Moses’ voting certificate saying her probation had expired in 2018 and she was eligible to vote.

“Manager Billington advised that he thought he did due diligence in making his decision,” Joe Williams, an administrator in the department of corrections, wrote to Lisa Helton, a top department official. “Manager Billington failed to adequately investigate the status of this case. He failed to review all of the official documents available through the Shelby county justice portal and negligently relied on a contact note from a court specialist in 2016.”

Williams went on to note that if Billington had looked harder, he would have found additional documents, issued in 2019, that said Moses was on probation. Williams conceded that it was “tedious” to find some of that information. “The information that Manager Billington had at the time he signed the Voters Restoration was insufficient to reasonably affirm that an offender was off supervision.”

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The email says that Moses waited in the lobby of the probation office and seemed impatient while Billington investigated. It does not suggest that Moses bore responsibility for the mistake.

“They acknowledged that the mistake was theirs in this letter,” said Blair Bowie, an attorney at the Campaign Legal Center, who is providing information to Moses’ defense on voting rights restoration issues. “This really runs contrary to the prosecution’s characterization of the incident as Ms Moses tricking the probation officer.”

Claiborne Ferguson, the attorney who represented Moses during her trial, said he had not seen the email before I showed it to him Wednesday morning. He said it was consistent with Billington’s testimony during Moses’ trial in which he accepted responsibility for the error.

Amy Weirich, the district attorney prosecuting the case, declined an interview request. “I gave her a chance to plead to a misdemeanor with no prison time. She requested a jury trial instead. She set this unfortunate result in motion and a jury of her peers heard the evidence and convicted her,” she said in a statement.

Any acknowledgment of an error from the probation department is potentially significant because it challenges the argument that Moses knowingly voted illegally, experts said. “In general, we tend to say that mistake of law is never a defense. Mistake of fact is never a defense. But one of the major exceptions is if you’re relying on someone who is officially responsible for telling you whether you’re breaking the law or not then you’re not guilty of a crime,” Bennett Capers, a former federal prosecutor who is now a law professor at Fordham University, told me.

When he sentenced Moses, Ward dismissed the idea that an error by the probation department meant Moses wasn’t guilty of a crime. Such an argument, he said, is like saying “a person who obtains money from a bank by posing as another person is not criminally responsible because the bank should have discovered the fraud and not given the money to the thief.”

Steven Mulroy, a law professor at the University of Memphis who specializes in criminal and election law, told me he didn’t think that analogy was appropriate.

“She was honest about who she was, and she knew that probation would check her records,” said Mulroy, who is also running for district attorney. “A better analogy would be the central bank branch said she had insufficient funds for a check; she doubted it and thought it might be a mistake. She went to her actual bank branch, who checked their records, said she had sufficient funds, and issued her a money order which she then tried to cash.”

After reviewing the email, I asked the department of corrections whether it believed Moses had deceived its employee. An agency spokesperson didn’t answer directly.

“I can only say that the officer did not conduct a complete review and should not have signed the form, said Dorinda Carter, a department spokesperson. “Corrective action was taken against the officer who mistakenly completed the form.”

Bowie said the case spoke to wider problems with the confusing process people with felonies have to go through to get their voting rights restored.

“The cost of those mistakes is always paid by the person trying to restore their voting rights,” she said.

Brandon Dill contributed reporting from Memphis

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• The Pennsylvania supreme court also adopted a new congressional plan.

• The Texas lieutenant governor, Dan Patrick, caused delays in the processing of absentee ballot requests by telling supporters to send their requests to the state, not local election officials.