Appellate justices say Jordan Harp case must be remanded after state concedes post-conviction hearing was incomplete

At oral argument before justices, attorneys for both sides agreed the post-conviction court improperly limited evidence in petitioner Jordan Harp’s case, and the court indicated it will remand the matter for a full hearing.

Lance Chisholm, an attorney from Shelby County representing petitioner Jordan Harp, told the panel that the post-conviction court prevented him from calling Harp to testify and barred testimony from detectives and officers he had subpoenaed. "A full and fair hearing requires opportunity to present proof and argument," Chisholm said, citing Stokes v. State and related precedents.

Chisholm summarized the underlying case facts: Harp pleaded guilty to second-degree murder and received a 40-year sentence (concurrent with 25 years on related charges) after charges initially included first-degree murder and especially aggravated kidnapping. Chisholm said Harp made a number of social-media posts and text messages admitting involvement and later gave a recorded interview to police, but that counsel at trial did not file a motion to suppress the statement or a Ferguson motion regarding a recording.

On appeal, Chisholm argued his client was entitled to testify at the post-conviction hearing and to present witnesses so the court could evaluate three Phillips factors: whether a suppression motion would have been meritorious, whether counsel’s failure to file was objectively unreasonable, and whether, but for the omission, there is a reasonable probability the outcome would have been different. Chisholm told the court the petitioner’s statements and social-media posts, without the detailed police confession, might have produced a different result at trial or induced a different plea decision.

Ronald Cohen, arguing for the State and filling in for Kirby May, told the court the State was conceding that the post-conviction proceeding had procedural defects and should be remanded for a new hearing, but he stressed the concession did not mean the State agreed Harp is entitled to relief. "We are conceding that this should be remanded, but I want to be very clear that we are not agreeing this petitioner is entitled to any relief," Cohen said, adding that the State considered the proof of guilt overwhelming.

The State and petitioner’s counsel debated whether trial counsel needed to be called again at the new hearing. Cohen said the trial counsel’s testimony had already been taken at the hearing and the petitioner had the opportunity to question him; Chisholm said he had additional witnesses subpoenaed (two detectives and one arresting officer) and needed to present them to address whether recordings exist, whether counsel reviewed body-camera footage, and whether the plea was knowing and voluntary.

A member of the panel indicated the court would remand the case to allow the petitioner to present the witnesses and, if he chooses, to testify. Chisholm asked the court to allow the possibility of recalling trial counsel if circumstances at the remand required it.

The court’s expected remand will require the post-conviction court to consider all properly presented evidence on the ineffective assistance and plea-voluntariness claims and to issue findings on the merits after hearing the testimony the trial judge previously limited.

Background and legal authorities referenced at argument include a Supreme Court rule cited as "Supreme Court rule 28 8 c 1 b," a statute cited as "40 31 10," and Tennessee case law such as Keogh v. State and Phillips (Supreme Court of Tennessee). Counsel also cited Stokes v. State and House v. State in support of the need for a full hearing.