Contaminated Cases? 

The indictment of medical examiner O.C. Smith prompts a reexamination of old cases.

How much does the federal indictment of Shelby County medical examiner O.C. Smith muddy the water in criminal cases in which he has previously testified?

Plenty, said Cyril Wecht, chief medical examiner in Pittsburgh and president of the American Board of Legal Medicine, who suggested that Smith "needs psychiatric counseling."

"If he could fabricate a story like this that a Hollywood screenwriter on LSD would have difficulty coming up with, who can believe him in a courtroom?" asked Wecht.

Shelby County district attorney Bill Gibbons, for one, who said Smith's indictment on two counts of lying to investigators and one count of unlawful possession of a bomb "has no bearing on the validity of his expert testimony in trials."

"Let's say a doctor has been indicted for income tax evasion," Gibbons said. "Does that mean his expertise is suddenly all wrong? This is a very serious charge, but at the same time there is no reason to believe that it undermines the validity of his opinions as a medical expert. They are two different issues."

Smith pleaded innocent last week and was released on his recognizance. Gibbons said he would not hesitate to use him in future trials, but the issue became moot when Smith resigned.

Between those two extremes, attorneys and medical examiners contacted by the Flyer expressed varying opinions about the impact of the Smith indictment.

"From my experience, it is going to be very hard to open up cases that are already closed just because of his present trouble," said Dr. Michael Baden, former medical examiner for New York City. "In cases where the issue is who-done-it, it is a police investigation. But if there is a case where the cause of death is either a police choke hold or a cocaine overdose, that is where his testimony could be impaired."

Former federal prosecutor Hickman Ewing Jr. said most prosecutors would probably try to work around Smith.

"I would think a prosecutor would be hesitant to call him as a witness," said Ewing. "Let's say it goes to trial and he is acquitted. I would think the state on past cases could defend that. But is there potential for affecting a lot of cases? Probably so, yes."

Defense attorney Leslie Ballin does not expect a rush to the courthouse to appeal cases in which Smith testified:

"The only way a defense lawyer can use Smith's problems in a homicide case is to ask Dr. Smith, 'Did you do what you are accused of?' Then he can either take the Fifth Amendment, say yes, or say no. The next question is what happens if Dr. Smith is convicted later? Then there might be cause for appeal on a case-by-case basis. But in 99 percent of homicides, the question is either who-done-it or the degree of homicide. Very rarely is the cause of death in question. So I don't see appeals or overrules as automatic."

Even if contested forensic testimony is rare, Smith could have given a lot of it simply by virtue of his longevity. He started working in the medical examiner's office in 1978 and was named chief medical examiner in 2000. In the last three years, he worked on several high-profile cases where the bizarre circumstances of his "attack" could well prompt a fresh look at theories once seen as unlikely or even crackpot. He gave post-conviction testimony that helped keep convicted cop killer Philip Workman on death row. He conducted the autopsy on Harvard microbiologist Dr. Don Wiley, who apparently leaped or fell to his death from the Hernando DeSoto Bridge in 2001. And he also did the autopsy on Katherine Smith, the driver's license examiner who burned to death in her car in 2002 shortly before she was due to attend a court hearing on charges that she helped five Middle Eastern men from New York City get fake licenses.

Wiley's death two months after the 9/11 terrorist attacks drew international attention because he was an expert on dangerous viruses including anthrax, smallpox, Ebola, and AIDS. His body was found in the river 320 miles south of Memphis 35 days after his disappearance. Smith ruled Wiley's death an accidental fall from the bridge after Wiley stopped on the bridge, got out to look at his rental car, became dizzy due to alcohol or a seizure, and was jarred by a gust of wind from a passing truck.

A month later, in February 2002, Smith was called upon to identify the charred body of Katherine Smith, who authorities said doused herself with gasoline and crashed her own car. On March 13, 2002, two Molotov cocktails and a homemade bomb were found in an exterior stairwell at the Regional Forensic Center where O.C. Smith worked.

James Cavanaugh, the chief investigator for the Bureau of Alcohol Tobacco and Firearms on the O.C. Smith case, told the Flyer last year, "There is no connection to the driver's license testing case. We know all about that."

The Workman case, however, is related to Smith's alleged staged barbed-wire-and-bomb attack. The indictment includes a recap of Smith's January 2001 testimony at a Workman clemency hearing in which he supported the autopsy and ballistics conclusions of the previous medical examiner. Two months later, a series of anonymous letters vowed to "fight against the doctor-killer abortionists" and "destroy the liar" O.C. Smith.

The Workman case has become an indicator of feelings about Smith even though he did not testify at Workman's 1981 trial. Prosecutors who think Workman is guilty tend to defend Smith. Lawyers and death-penalty opponents who think Workman was wrongly convicted see Smith as an extreme example of the flaws in the "machinery of death."

Gibbons and Wecht, who represent the two polar positions, both have a personal interest in the case.

Although he says he has never met Smith, Wecht testified as an expert witness for Workman's defense and stated this his gun could not have killed police officer Ronald Oliver. Ballistics evidence, along with a shaky eyewitness, were key parts of the prosecution's case.

Gibbons is married to Julia Gibbons, a federal judge on the U.S. Court of Appeals. Julia Gibbons presided over habeas corpus hearings for Workman and issued a 91-page ruling in 1996 that denied him a new trial.

The connections are fascinating, but the questions nobody has answered so far are how and why Smith allegedly attacked himself. Did he have an accomplice, and do investigators have a secret witness from inside Smith's former office?

Beyond the connection to the Workman case, the indictment doesn't say. The two counts of lying with which Smith is charged seem to refer to a discrepancy in his story about the time that the "attack" occurred. Smith twice told investigators he was attacked shortly after 10 p.m. on June 1, 2002. But a security guard who noticed Smith's truck outside the office at 11:30 p.m. saw nothing unusual. Another security officer found Smith wrapped in barbed wire with a bomb around his neck at 12:29 a.m.

U.S. attorney Bud Cummins of Little Rock, who took the case after U.S. attorney Terry Harris of Memphis recused himself, said he could not discuss the case with the Flyer.

"We only have to prove beyond a reasonable doubt that it couldn't have happened the way Dr. Smith said it happened," said Cummins. "We may not answer some of those questions at the end of the day."

In a final paradox, authorities said at least 17 agencies responded to the "attack," and the agents who removed the bomb from Smith exposed themselves to grave danger. At a time when the country is on terror alert, the public was led to believe that a mad bomber was on the loose. For more than a year, Smith's version was the officially accepted one, and the Flyer was the only media outlet to question it in print.

Yet when Smith was arraigned last week, he was allowed to go free on his own recognizance without posting a bond. His attorneys said his attacker is still out there.

E-mail: branston@memphisflyer.com

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