May 1, 2001

Sam Smith, presently on death row at Potosi Correctional Center in Missouri, is the victim of a bizarre travesty of justice in which his court-appointed lawyer, who had never tried a criminal case before, first gave him dismal, incompetent representation and then, later, took steps which sabotaged Smith’s constitutional right to have his conviction set aside because of that lawyer’s incompetence. So far, this despicable conduct has shielded that lawyer’s performance from scrutiny by any court and has kept Smith on Missouri’s death row even though he is not guilty of murder.

On January 15, 1987, a knife fight broke out at the Missouri State Penitentiary in Jefferson City. A number of inmates, including Marlin May, had approached another inmate, Demetrius Herndon, and were preparing to stab his as retribution for an incident the night before. Sam Smith, though not involved in this situation, saw what was about to happen and approached this group as a peacekeeper in an attempt to persuade the men not to fight, but to no avail. One of May’s group used his knife to threaten Smith and told him to butt out; one of the other men stabbed Herndon and the fight was on, eventually moving from the housing area down several flights of stairs to the housing unit’s lobby. Smith, who was initially unarmed, was able to disarm one of his attackers; he then sought to defend the unarmed Herndon, who was being stabbed by May. May advanced toward Smith, and both men stabbed at each other for some time until a correctional officer disarmed May. Nevertheless, the fight between May and Smith continued with Smith stabbing at May until the two were separated. May died of multiple stab wounds, and Smith was charged with first degree murder in his death. During his closing argument, the prosecutor emphasized the fact that Smith kept stabbing May after his disarming as convincing evidence of Smith’s murderous, deliberative mental state.

The jury that found Smith guilty of cool, deliberate murder and sentenced him to death did not know that, at the time of the offense, Smith was suffering from a mental disorder diagnosed as post-traumatic stress disorder. The jury did not know that this mental disorder was the result of an incident in August 1986 where Smith himself had been the victim of a prison stabbing which placed him in the prison hospital for seven days, and that following the August 1986 stabbing, smith began to have nightmares in which he would continuously relive the attack upon him with associated mental and physical complications. The jury did not know that, because of this disorder, Smith was incapable of deliberating rationally upon anything at the time of the offense, much less the death of May.

The jury did not know any of this because David Kite, the lawyer selected to defend Smith by the same State which now wants to execute him, was so woefully inadequate that he did not obtain the mental examination which would have readily revealed Smith’s mental disorder in spite of the fact that Smith told Kite about the prior stabbing and its effect upon him, and asked Kite to seek expert assistance to determine whether his action in continuing to stab May after he was disarmed was the result of the prior incident.

This decisive, and so far fatal, omission by Kite is not surprising given the fact that Kite, prior to representing Smith, had never been lead counsel in any criminal case and had assisted in but one other, non-capital, criminal matter. Smith was therefore defended by an attorney who had none of the skills demanded in such a high-stakes case.

This complete lack of experience is further demonstrated by the fact that Kite did not even investigate or prepare any mitigating evidence to be presented on Smith’s behalf during the penalty phase, so confident was he that Smith would never be found guilty of first degree murder. The undisputed evidence available establishes that investigation of such mitigating evidence was not begun until after the jury returned its verdict; the penalty phase of the trial began approximately 100 minutes later. Kite, who was distraught over the jury’s verdict finding Smith guilty of murder, could not even bring himself to continue the trial; the heavy burden of throwing together a penalty phase presentation for Smith fell to Kite’s office mates who had assisted him various points in the trial, but who had never met or consulted with Smith prior to trial. Because of the complete lack of preparation for the penalty phase, Smith was at the mercy of the prosecutor; the jury’s recommendation of death came after only 80 minutes of deliberation. The record is clear that substantial mitigating evidence, including evidence regarding Smith’s mental status at the time of the offense, was readily available had any investigation been done before trial.

Woefully for Sam Smith, Kite’s deficient performance did not stop with his sentencing. At that time, Smith advised the trial judge that he was dissatisfied with the performance of Kite. The judge appointed new counsel to represent Smith on appeal; Kite was ordered to file the notice of appeal only and to then withdraw from the case.

Incredibly, rather than make any effort to withdraw as Smith’s counsel or turn the case over to the new attorney as ordered, Kite continued to represent Smith on appeal and took the disastrous, fatal step of filing the transcript of Smith’s trial in the Missouri Supreme Court on October 7, 1988, seven weeks before it was due, without informing Smith or his new attorneys that he had done so. Because of Kite’s quick, quiet filing of the transcript, the 30-day time period within which Smith was required to file his written complaint about Kite’s performance began running, and expired, without the knowledge of either Smith or his new lawyers. As a result of Kite’s failure to communicate with either Smith or his new lawyers, Smith’s written complaint against Kite was filed late.

Since then, Smith has presented his claims against Kite to the Missouri state and federal courts, but those courts have uniformly refused to consider his complaints against Kite because of the late filing of the written complaint, which was engineered by Kite (who has since been disbarred for other reasons) in the first place! This is not justice!

Smith’s case is especially compelling because the Missouri Supreme Court, in a virtually identical case, granted relief and a new trial to another inmate, Ed Reuscher, who had also been misled by his attorney about the filing deadline for the written complaint against that lawyer. Since Smith’s case and Reuscher’s case were so similar, they were both argued before the Missouri Supreme Court the same day and were both decided the same day. For some reason, unexplained even today, Reuscher got a chance to file a new complaint against his lawyer and was eventually granted a new trial, but Smith go no relief from his conviction and remains on death row. This denial of basic justice has caused three judges of the Missouri Supreme Court to dissent strongly from the decisions of that Court denying Smith relief.

Had Smith’s complaint about his lawyer been filed on time, there is little doubt that Smith would have been granted a new trial with a new, competent lawyer. Instead, he sits on dead row counting the days remaining to his date with the executioner just after midnight on May 23.

The courts have turned a deaf ear to Smith’s complaints and are willing to let him die because he missed a filing deadline through no fault of his own. Though it may be too late to expect that the courts will somehow suddenly reverse their prior decisions, it is not too late to petition Governor Bob Holden to spare Smith’s life.

Especially helpful to our cause is the fact that Marlin May’s mother, Aretha Payne of St. Louis, courageously opposes Smith’s execution, both because of her belief that the killing must stop somewhere and because she is appalled at the shoddy treatment Smith has received from the courts.

Time is rapidly running out for Sam Smith, whom I have represented since 1991. If you feel, as Ms. Payne and I do, that Smith’s execution would be wrong, for whatever reason, please help us save him, and in turn ourselves, by contacting Governor Holden’s office and making your voice heard. Write to him at State Capitol, Box 720, Jefferson City, MO 65101, call him at (573) 751-3222, fax him at (573) 751-1495 or send email to constit@mail.state.mo.us. Many hate the death penalty as much as we do and will come forward if they believe they will be standing up with others rather than alone; help us spread the word to reach these people of good will. For further information, contact me at the numbers below or send email to klocke@mspd.state.mo.us.

Help Sam Smith get justice!

KEVIN LOCKE
Assistant Public Defender
234 W. Shrader, Suite A
Liberty, MO 64068
Phone (816) 792-5394
Fax (816) 792-8267

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