Ex-Memphis officers' lawyers allege Tyre Nichols had 'mushrooms,' stolen credit cards in car

Attorneys for two of the five former Memphis Police Department officers who are under a federal criminal indictment for violating Tyre Nichols' civil rights when beating him in January alleged in court filings Thursday that Nichols had a hallucinogenic substance, along with stolen debit and credit cards, in his car the night he was pulled over and beaten.

The filings come at a time when the two defense attorneys — Michael Stengel, who represents Demetrius Haley, and Martin Zummach, who represents Justin Smith — are attempting to get access to files downloaded from Nichols' phone by investigators.

It is still unclear why Nichols was stopped by the five former officers on the night of Jan. 7. MPD initially said the stop was due to Nichols driving recklessly, but Memphis Police Chief Cerelyn "C.J." Davis later said there was no evidence he was driving recklessly.

In the motions filed by Stengel and Zummach, the two attorneys say that the alleged hallucinogens and stolen cards were not known to attorneys and the officers until later, through what they say were findings from the Tennessee Bureau of Investigation's catalog of Nichols' car.

Prosecutors and law enforcement have not mentioned psychedelic substances or stolen credit cards being found in Nichols's car in open court, or in their court filings. Defense attorneys, however, have alluded to and outright alleged Nichols was on a hallucinogen when beaten by the officers. Thursday's court filing, however, is the most firm allegation of this type made against Nichols.

Stengel filed the initial motion to compel the U.S. Department of Justice to turn over a "dump" of cell phone records, saying they are "material to the preparation of Mr. Haley's defense," on Oct. 5. In that motion, there was no mention of hallucinogens in Nichols' car, nor was there mention of stolen debit or credit cards.

It was Zummach's motion, also filed Thursday, to join Stengel's motion for the cell phone records that alleged Nichols had those items in his car at the time he was stopped by the now-former MPD officers.

"Only by happenstance did the defendants learn that Nichols had Schedule I hallucinogenic narcotics in his vehicle on the night in question," Zummach wrote. "Psilocybin, commonly referred to as magic mushrooms, are a Schedule I hallucinogenic. By reviewing the Tennessee Bureau of Investigation's inventory of Nichols' car, it was determined that almost two grams of the substance were found. However, because the narrative of the government's prosecution does not include Nichols' state of mind, or addled mind, at the time of the traffic stop, the government obviously did not request toxicology testing for psilocybin or its metabolite."

Nichols' autopsy report, and toxicology reports within it, show that Nichols had a blood-alcohol level of .049%, well below the Tennessee legal limit of .08%. The reports also show Nichols had a trace amount of marijuana in his system. Psilocybin was not listed in that report.

Zummach also alleged that Nichols had stolen credit cards, debit cards and photograph IDs in his car.

"On another issue, the defendants, by chance, learned that stolen credit cards, stolen debit cards and stolen photograph IDs were also found in Nichols' vehicle," he wrote in the filing. "How these credit cards, debit cards and photo IDs came into the possession of Nichols is, in fact, important when examining the state of mind of Nichols when he ran from the police."

TBI, when asked for comment about the contents of Nichols' car and the allegations levied against Nichols in the filings, said "the information previously released as part of our investigation is the extent of what we are able to provide," and referred The Commercial Appeal to the Shelby County District Attorney's Office and U.S. Attorney's Office.

Both the DA's office and the U.S. Attorney's Office to comment on the filings and allegations.

The joinder, which is the formal method of joining with a co-defendant in a motion, appears to be using those allegations to bolster the argument that the federal prosecutors are taking a position that "is disingenuous and intellectually dishonest."

The paragraphs follow similar formatting, noting that "only by happenstance" did the former officers find out about these things, which starts by saying the defense attorneys only learned about the cell phone files in passing conversation with the U.S. Attorney's Office.

"Only by happenstance did the defendants even learn that the government had downloaded the contents of Tyre Nichols' cellular phone," Zummach wrote. "It was not like the government volunteered to the defendants that they had that information. Once it was discovered by the defendants that the government had the information, did the government quite boldly said in their opinion, the contents were not relevant to the crimes charged [sic]. The government actually asserted the irrelevance before they even reviewed the contents of the phone that they took the time to dump."

DOJ says 'the court should deny' cell phone access

The federal prosecutors, in their response to the motion to compel, said they oppose releasing the contents of the cell phone to defense attorneys for a litany of reasons, including that the attorneys did not cite a law that would permit the release of the files and that the phone's contents are not relevant to the criminal case since the officers could not have known what was on it when they arrested him.

"Defendant Haley does not assert that he or any defendant knew any facts about what was in the victim's phone at the time they assaulted him," Assistant U.S. Attorney Kathryn Gilbert wrote in the DOJ's response. "As a matter of law, any facts unknown to the defendants at the time they used force against Mr. Nichols are irrelevant and inadmissible."

Gilbert went on to write that the information on the cell phone appears to be an attempt to attack Nichols' character in court, which she said is not allowed since he is dead and cannot provide a statement to a jury.

"The fact that the defendant now seeks to rifle through the deceased victim's personal effects for new information suggests that he intends to attack the character of the victim at trial and, in so doing, ask the jury to improperly nullify the criminal charges," she wrote in a motion filed Friday. "The court should deny the defendant's motion to compel the government to investigate the deceased victim and, further, it should emphasize that efforts at jury nullification are not permitted in federal court."

Gilbert's response did not acknowledge the allegations in Zummach's joinder notice.

Notable civil rights attorney Ben Crump, who is representing the family of Nichols in civil litigation, also decided not to comment on the allegations made against Nichols in Zummach's court filing.

More: Ex-Memphis police officers to be tried together in state Tyre Nichols criminal case, judge rules

The five former MPD officers — Haley, Smith, Emmitt Martin, Desmond Mills and Tadarrius Bean — were indicted in federal court on Sept. 12 and each face four counts. They face one count of excessive force, deliberate indifference, tampering with evidence and obstruction of justice. If convicted, they could face up to life in prison.

There is no parole in the federal system.

The federal indictment came months after the same five officers were indicted on the state level and face second-degree murder, aggravated assault, aggravated kidnapping, official misconduct and official oppression charges.

A $550 million civil lawsuit was also filed against those officers, former Officer Preston Hemphill, former Lt. DeWayne Smith, the City of Memphis, Davis and three Memphis Fire Department personnel.

Following the federal indictment, a stay was issued in that civil case for the five criminally indicted officers. The other parties in the lawsuit will continue the discovery process.

Lucas Finton is a criminal justice reporter with The Commercial Appeal. He can be reached at [email protected] and followed on Twitter @LucasFinton.

This article originally appeared on Memphis Commercial Appeal: Attorneys for ex-Memphis police officers seek Tyre Nichols phone records