Thursday, March 3, 2005

Ridiculous & Beyond

Jurors weren't the only ones divided in the O.C. Smith case.

Posted By on Thu, Mar 3, 2005 at 4:00 AM

Can a hung jury ever be the best outcome in a criminal trial?

The answer could be "yes" in the trial of former Shelby County Medical Examiner Dr. O. C. Smith. After deliberating for almost three days, the jury remained deadlocked Tuesday and U.S. District Judge Bernice Donald declared a mistrial. Prosecutors now must decide whether to retry the case.

To Smith, the benefits of a hung jury are obvious. If the government elects not to retry him -- with the same evidence in a case already three years old -- he goes free.

But not unscathed. Smith has endured the ordeal of indictment, trial by jury, unfavorable publicity, and the considerable cost of defending himself.

Federal prosecutors can only claim a tie, but they will get credit for having the courage to take on a respected member of the Memphis law enforcement community without fear or favor. There was always a possibility that the Smith case would simply go away after no attacker was found in the first few months and the publicity died down. Investigators and prosecutors could have simply rolled over and pointed out that it took more than 15 years to catch the Unabomber.

A conviction could have opened the door to appeals of other cases in which Smith gave critical testimony. Convicted cop killer Philip Workman, for example, probably gets a lifetime reprieve because of doubts that Smith's case has raised. Smith gave important testimony against Workman in a clemency hearing.

If Smith had been acquitted, would a task force have been reconvened to look for the attacker? Would finding him be U.S. attorney Terry Harris' "number-one priority," as he declared on June 3, 2002, the day after Smith's alleged attack?

Would Smith, who resigned under pressure, have gotten his old job back?

And what of the attacker? Would Smith have again been assigned round-the-clock police protection because the mad bomber is still out there, madder and more motivated than ever because of the trial and all the publicity? Does the bomber take it up a notch?

A mistrial lets both Smith and federal prosecutors save face. The bomber goes into the file with Nicole Simpson's killer. People who think Smith did it will continue to think that. People who think Smith was attacked will continue to think that. With luck, we will hear no more of the bizarre bombing at the morgue.

"As far as a federal crime goes, it's such a ridiculous point we've gotten to," said U.S. attorney Pat Harris, special prosecutor from Arkansas in the Smith case, in the 2003 videotaped interview. Amen.

TO HARRIS AND CO-COUNSEL BUD Cummins, also from Little Rock, the Smith trial was the culmination of a two-year investigation by 17 law enforcement agencies following up 112 leads. To defense attorney Gerald Easter, it was "the ATF [Bureau of Alcohol Tobacco Firearms and Explosives] and the boys from Little Rock up here persecutin' O.C. Smith."

Both sides were exaggerating.

The 17 agencies included the likes of the IRS, the Germantown Police Department, and the Secret Service. The heavy lifting was done by the ATF, federal prosecutors, the Tennessee Bureau of Investigation, the Memphis Police Department, the Shelby County Sheriff's Office, and the FBI. The Shelby County District Attorney General's Office was conspicuously absent.

Easter's folksy suggestion that federal cowpokes from across the river were on a vendetta is absurd -- which is not to say it didn't score points with the jury. As Cummins pointed out, federal prosecutors have broad powers to get assistance from other agencies. His Memphis colleague, Terry Harris, testified that Smith has been his personal friend and professional colleague for more than 14 years and is known as "our doc" to local cops. The poignant words of Harris made it clear that no one relished prosecuting "our doc."

As the trial unfolded, it became clear that "the boys from Little Rock" were not getting unanimous cooperation from local law enforcement. A total of 23 witnesses came from various law enforcement agencies -- 14 of them from the ATF or the Memphis Police Department -- and four of them were called by the defense.

Lt. Richard Borgers of the MPD was the first cop on the scene.

"He [Smith] appeared scared to death and looked like he was about to pass out," he testified. "No, I don't believe he could have done it to himself."

Lt. Marcus Worthy of the MPD was the first crime-scene investigator on the scene. He testified erroneously about the position of Smith's hands on the window grate and erroneously again about whether Smith's truck had been impounded and processed after a bomb-sniffing dog hit on it. The truck was never processed, apparently because Smith, according to MPD detective Connie Maness, was "upset" by the suggestion.

As one of the boys, Smith got special consideration from Memphis police. After spending a few hours in the hospital after the attack, he was allowed to return to the crime scene for much of the day.

"I was pretty upset that he had come back to the scene," testified ATF agent Mike Rowland, who feared that the attacker might still be lurking nearby.

Rosemary Andrews, a prosecution witness who works as an attorney for the Shelby County district attorney general, gave more comfort to Smith than prosecutors.

"He looked like he had been in a fistfight," she testified about her visit to Smith the day he was attacked to help him write his statement.

Mike Willis, the former commander of the MPD bomb squad who removed the bomb from Smith's neck, testified, "Our job is to render safe, not to investigate." He and two other bomb squad officers who testified offered no opinion about the attack.

Lt. Steve Scott of the University of Tennessee police force was the person who discovered Smith bound in the stairwell outside the morgue. Scott, who was friends with Smith and shared an interest in weapons, remained bravely at Smith's side until he was rescued. His testimony reduced Smith to tears.

Sheriff's deputies Dirk Beasley and Gary Hood testified about a possible suspect they encountered three days earlier, but it turned out the man was in jail the day of the attack.

Unlike Easter, prosecutors Harris and Cummins did not directly ask their witnesses the crucial question, "Do you think Dr. Smith could have done this to himself?"

Which, of course, was the only question jurors had to ask themselves.

Smith did not testify in his own defense. Before sending them off to deliberate, Judge Donald instructed jurors, "The fact that Dr. Smith did not testify cannot be used by you. Do not even discuss it in your deliberations."

Schooled in combat, Smith employed a strategy of passive resistance from the moment he was "attacked" to the appearance of the last defense witness, his wife Marge, who five times refused to directly answer Cummins' questions about whether her husband regularly carried a gun, as several witnesses testified.

"He was authorized to carry a gun," she said repeatedly.

The brains-over-brawn strategy served Smith well. In his account, the attacker splashed an acid solution in his face two times and sucker-punched him in the gut. From that point on, Smith offered only token resistance because he was unsure if the attacker had a knife or gun. A Marine commander called as a defense witness said such a response would not be inappropriate in the circumstances.

While he did not testify, Smith played an active part in his defense. Under his tutelage, defense attorney Jim Garts, a self-described C student in chemistry, hammered for hours at the "12 percent solution of sodium hydroxide" the government said was in the bottle splashed in Smith's face. His point seemed to be that there was such a small residue left in the bottle that nobody could tell for sure what percentage of acid was in the bottle.

What effect this had on the jury is not yet known. If chemistry is inherently confusing to laymen, then confusion could equal doubt in some minds.

Back in 2003, Harris confronted Smith in the interview, and Smith went into an explanation of sodium hydroxide. Harris quickly steered the interview in another direction.

"You'll beat me on science," Harris said.

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