But at any rate, it points to the control that police have over what the
potential witness will see before she's ever asked to identify somebody. [And] also after the fact, [it points to] the enormous power they have to essentially reconstruct
the story after the fact in order to preserve a conviction that has already
come under considerable doubt as this one did.
There's [also] the role of prosecutors here that has to be looked at. If you
start studying prosecutors in American law, you will find out that their unique
political role in our country doesn't have very many exact analogues in other
societies. Courts have actually pointed out that prosecutors are, in some ways,
the lineal descendants of the king of England. They are representative of sort
of the American body politic in its most basic task -- choosing who to accuse
of serious crimes. Most lawyers are obliged to not mislead the court, to treat
other litigants fairly. But they have an overarching goal to serve their
[But] the prosecutors are the only lawyers in our system who [have] different
job[s], and that's to make sure justice is done. What you see in this case, almost
from the beginning, is a sort of shocking and very opposite pattern of trying
to win a conviction and hold on to that victory, sort of against any reasonable
question about whether or not there were mistakes made.
Could you briefly run down some other troubling aspects of this case?
The primary homicide investigators in this case. ... Two things, in retrospect,
stand out as really troubling about their conduct.
One is their interrogation of Frank Lee Smith, the suspect and eventual
convicted condemned man. They eventually testified that, while they were
interrogating him, they tried a technique that police often do, of essentially
lying to the suspect, telling him that they've got a witness that identified
him, to see what he'll say. Presumably, an innocent person would shrug it off,
because they know it can't be true; a guilty person might be tricked into
And indeed, they testified that Frank Lee Smith kind of blurted out, "Well, he
couldn't have seen me -- it was too dark." That's a classic kind of "gotcha"
move by the police. Seems too good to be true. I think, in retrospect, it
clearly was a made-up fact.
I know that may seem shocking that police would do that. What happens often is
that police develop their own suspicions of who's guilty. Once they've become
relatively convinced of it, they may be willing to take a piece of evidence and
essentially manufacture it.
Was that important, the statement which they obtained from Frank Lee
I think it was extraordinarily important, on two levels. For the jury, it must
have provided a crucial kind of reinforcement to what was otherwise simply the
fleeting witnesses that had seen him for one, two minutes. There was no
physical evidence that tied him; no strong material evidence of any kind.
The other level where it made a huge difference, I think, was at the Florida
Supreme Court. They reviewed the case first on so-called direct appeal, the
first stage of judicial review after the trial. And they wrote a per
curiam opinion, which means that there were no dissenters at all; everyone
agreed that there was enough evidence to justify the death penalty conviction
against Frank Lee Smith. And in their opinion, they specifically pointed to
that statement. Because it was one thing that was totally different than the
witnesses, and therefore seemed to be too much of a coincidence, that maybe the
witnesses could be wrong, [but] why would he make that kind of statement?
Chiquita Lowe's testimony, when she testified in the 3850 motion -- that was the
challenge to Frank Smith's already existing death sentence that took place in
1998. At that hearing, she testified that the original prosecutor in this case,
who's now a federal judge, really pressured her very strongly to identify Frank
One of the most important things that she claims he said is that Frank Lee
Smith had been guilty of the same crime before. So to tell Chiquita Lowe,
"Well, this guy not only meets your description, but he's been around the area
and he's committed these crimes before," was to really tie a knot for her
intellectually, so that it got rid of a lot of the doubts she might have had as
an original witness.
The original prosecutor denies this.
He denies it, but we have her statement. And given the fact that the DNA now
seems to suggest that she was telling the truth -- doesn't prove it
conclusively, but seems to suggest that she was telling the truth -- it now
begins to raise questions about whether or not his statement is accurate.
The other important thing is that a witness like that [is] under enormous
pressure from their neighbors and the community often, and their own sense of
doing the right thing for their community. We know that there were a lot of
murders happening in Fort Lauderdale. She may have felt that this was her one
chance to help protect her own community, which was an extremely victimized
And I think, again, prosecutors and police can't change that. But as people
whose primary goal should be to actually find out who the guilty party is,
their first inclination should be to try to counterbalance those kinds of
influence. They know that this is one of the few people that's seen this
suspect. To allow that to become contaminated should be the worst thing, from
their point of view.
Instead, from what Chiquita Lowe's testimony seems to suggest, they were mainly
trying to produce her as a good prosecution witness for a case they had already
Why is it so important to get things right at this early stage of the
investigation and evidence gathering?
Why? Because once the conviction takes place, once the death sentence has been
handed down, the door to what really happened in a case may never ever be
opened again, unless extraordinary things happen, like a witness comes forward
and says, "I was wrong." But the point is, when a prosecutor goes forward with
a capital sentence, they're really the last person who we can have any
confidence in [who] will be able to make a good judgment about whether the facts were
And in this case, it seems to me -- again, we don't know, we weren't in the
room -- what we can reconstruct in retrospect is a decision made pretty early
on in the investigation that this is the right person, and then really a kind
of juggernaut toward a conviction and a death sentence. That starts at a very
early stage. And that is deeply troubling, because of the finality of what
we're talking about.
Is it malice? Blindness?
I think we don't have any reason to fear malice here. Blindness implies real
helplessness. What I think it is is a kind of a zealotry that has settled into,
especially, our prosecutors' offices and our police departments in this country
in the last quarter-century.
It's a sense that punishment has become almost a civic religion in America.
That it is the one thing we do that we all agree is a good thing. It's the one
thing we seem to trust the government to do well, although we have lots of
reasons to be worried about that.
So the one part of our political system who most stands for that is the
prosecutor. And so there's a tremendous attraction in that role to really
lending yourself to being essentially a force of vengeance, a spokesperson for
the public's fear and anger about crime. That counteracts what should be a much
more fact-oriented approach by prosecutors, who are really the community's
protectors against miscarriages of justice.
In essence, this seems to be pushing the adversarial system to the extreme.
That's right. And we have this idea which has some worth to it, that when you
have two sides that are equally strong and equally focused on winning, that
somehow their battle will bring out the facts and bring out the truth.
What that misses is the fact that the roles are a little bit more complicated
than that. It's true that the defense lawyer's overarching role is to zealously
advocate the position of their client. There's no ambiguity there. They're not
supposed to make sure the right person gets convicted. They're not supposed to
make sure crime goes down. They don't have any other agenda. They
shouldn't. If they do, it's called malpractice.
The prosecutor is different. The rules of professional conduct in Florida, like
many states, have a specific rule for prosecutors that say, "You're not like
the normal lawyer. Your job is not just to advocate for your party -- in this
case the people of Broward County -- but also to make sure that justice is
The words used in the Florida bar professional conduct rules are very telling.
They call the prosecutor a "minister of justice." And the role there is to make
sure that the whole process takes place in a way that comports with the
American system of values. And adversariness -- winning -- is only a very small
part of that.
I think what happens in the death penalty is that, because it's become sort of
the atom bomb of the war against crime, and because crime's become the great
crusade of our time, prosecutors operate in almost a kind of super-moral space,
where what they do is considered too important and too sort of fundamental to
our sense of fear of crime to really hold them accountable to that traditional
Can you talk about the complicated legal situation regarding the state's
refusal to test the DNA of Frank Lee Smith?
... I think the prosecutors had some legitimate concerns; both parties did. This
was a very novel area. The Supreme Court of Florida has only made a couple
rulings on DNA in cases that are factually very different from this. So neither
party had clear legal guidance as [to] what their ultimate rights were.
Think about the defense position for a moment. You know there was very little
material evidence to test. One wrong test, and that evidence may be gone for
good. We know that all over the country there's been scandals involving state
law enforcement investigators and whether they've contaminated blood samples,
et cetera. So they have fears. ... Based on Chiquita Lowe's testimony, do they
want DNA to come in suddenly, if it proves the opposite and ruins their
client's chance? So they had a complicated legal situation.
And so did the prosecution, because they could ironically be in a situation
where the hearing would take place, the judge would decide on the basis of
Chiquita Lowe's testimony that Frank Lee Smith was probably not guilty, and
therefore reverse the death sentence. And then a couple months later, they
might find out he really was guilty, based on the DNA.
So I think they had some real concerns at that stage. Two or three weeks later,
when they then relied on the procedural bar, something else was happening --
not a legitimate concern in my view.
They knew that they had not lost the death sentence in the hearing, and they
now simply didn't want to take the chance of losing it because of the DNA. That
goes right to the heart of where we should all be concerned. Because if you
look at our post-conviction legal process, the biggest change in the last 20
years around the death penalty has been in the name of finality, setting these
procedural limits to how often and how long defendants can continue to ask
courts to consider what's happening.
The judge's role has been circumscribed; we're saying, after a certain amount
of time, even if a judge thinks it's a good piece of evidence, they can't look
at it, meaning there's only one player in the system who can still do justice
-- the prosecutor. They are the person who's been given the power; they're not
procedurally barred. They could walk into court and say, "Yes, let's test Frank
Lee Smith's DNA." And if they were doing what I think is the most important
job, which is to make sure that justice is actually being done, that the right
person is being convicted, it should have been their motion to test the DNA.
What about the issue of justice, innocence?
I think it was far more than a 1-percent chance, from a reasonable person's
point of view, that Frank Lee Smith was not guilty at that point. And one of
the most important ethical rules for a prosecutor is to make sure than nobody's
ever prosecuted unless the prosecutor really personally believes that there's
probable cause at least, that it's more probable than not that they're guilty.
So I think individually they had a moral and legal obligation to consider [the
But more importantly, after Chiquita Lowe's testimony had changed, think about
what we had left in the case. There was the victim's mom, who for obvious
reasons is a difficult witness. The other leading suspect who's being pointed
to is her first cousin [Eddie Lee Mosley] who she waved off as a suspect early
on. So the victim's mom is a problem.
There's a third witness, who apparently his relationship with the prosecution
had degenerated to the point where they did not present him in the 3850
hearing. So we've got one witness to this case [Lowe], and that witness says
that their testimony was incorrect. That it was coerced early on.
That is Chiquita Lowe.
Chiquita Lowe's. We've also got a new prosecutor in this case, who was not the
original prosecutor. And that means they're in a position to say, "Let's at
least take a look at the file."
Here's where I'm really the most troubled. Because if this system of finality,
of setting procedural bars, has any sense, it's because it says the prosecutor
is the person who can simultaneously make sure justice is done, and prevent
sort of the adversary system on the defense side from delaying justice too
Mistakes can be made even in a perfect system. But what the Frank Lee Smith DNA
controversy leaves me with is a sense that that prosecutor was not willing to
play that really crucial ultimate protecting role that is all our system has
left, really, because our judges have now had their hands tied so much by the
system. So their [the prosecutors'] refusal to go forward was truly
...We've created an interesting system where there's two players: one of whom
has a lot of resources, the prosecutor, and a lot of institutional strength,
but also has a divided loyalty -- that is, they want to win, but they also
should be making sure justice is done.
And another player who -- assuming you're not O.J. Simpson or a millionaire
defendant -- if you're a normal defendant, you have very few resources. And
that is what we call the adversary system. We often depict it as a sort of
equal battle between equal players. They're not equal. The prosecutor has much
more strength when you look at the fact they have the police as investigators,
they have the weight of the state and the finances of the state. ... The real balance comes in the fact that they have multiple jobs, and
that they should be pursuing multiple values and weighing those values in
making their decisions.
I think the prosecutor is probably the single greatest position we've created
in our political legal system. It should be held by the absolutely most
upstanding, most intelligent, most vigorous of our lawyers, because there is
simply no more important job. And rather than try to get defense lawyers to
solve the problems that law enforcement is creating for itself, there's a
rather obvious person who can do that -- that's the prosecutor.
But legally, they did not have to test DNA -- true?
That presumes that only winning and now maintaining the victory was a value;
they wouldn't even consider testing. ...
I also wanted to say that if we're looking sort of as anthropologists, trying
to understand how this happened, how did this mess sort of take shape, ... one
gets the sense that there's a pattern in this office of viewing the death
penalty as a crucial part of the political game that needs to be played to keep
getting reelected, to keep people's careers moving in the right direction.
You almost get the really ghastly sense that ... people on death row from
Broward are sort of like capital in the bank; that anyone who attempts to move
one of those people back into some other category is essentially trying to
assault the political strength of the prosecutor's office. And that represents
a level of politicization that really raises questions as to whether the system
can function as it's presently constructed.
Could you discuss why they said it couldn't be Eddie Lee Mosley who
killed the little girl?
That is a troubling aspect of this case, and it's something that we can't
prove. ... We notice that sort of everybody in this case prospered. They went
on to better careers, higher positions, higher offices. Is it possible that --
and God forbid, because this is a terrible thing -- when prosecutors and
police are looking for the right person, they are somehow thinking a little bit
ahead, and wondering how good a candidate will they be for the death penalty?
One thing we know about Frank Lee Smith, he was a great candidate for the
death penalty. He had already committed two murders, one when he was a very
young adolescent; one, I think, when he was 19. He had served a relatively
short sentence in prison. Many of the Broward sheriffs who knew him felt that
he had not served enough time, so they felt he had something coming. A jury
certainly [did], once they saw somebody who already killed two people.
Compare that to Eddie Mosley, who's psychotic, so there's some real issues
whether he's ever going to be able to be brought adequately to trial. He's also
a relative of the victim, and that's horrifying. But it also doesn't raise the
same kind of vengeance demands from juries that a stranger [does]. ... Rape-murder is
sort of the classic horror story that jurors tend to have the most anger at.
So there's at least a suspicion in my mind that Eddie Lee Mosley was down as a
suspect, Frank Lee Smith was up, because of their sort of "appropriateness" for
the death penalty.
Can the system be changed? And how?
We would need to change it in ways that built a lot more checks and balances
into the prosecution side, so that the prosecutor would essentially be
evaluating their own commitment to each case on a sort of regular basis.
Right now, we have elected state attorneys in Broward and in Miami-Dade and
other counties. They could make changes in their own office. They could create
review panels that would review capital cases at any stage of the process when
a defense lawyer or somebody else comes forward and says, "I've got some
serious reason to doubt this person is innocent."
There's no harm in the prosecutor's office making a thorough investigation.
That doesn't weaken their position in the courts. It doesn't cost them
anything. The fact that they don't even consider that part of their job is
what's really so damning about this case.
What about the Capital Collateral [Representative]? [Editors' Note: The CCR is an agency of
special public defenders who take on the death row appeal process. It was
created by Florida's legislature.] Hasn't that system helped Frank Lee Smith
and many others in Florida in recent years?
Yes. One of the ironies of our complex death penalty legal landscape is that,
in order for any state to move fast, it's got to provide lawyers for the
condemned person, because after they finish their direct appeal they have a
right to usually state, and certainly federal, collateral appeals. Those can't
happen unless you've had a lawyer, because what those involve is a lawyer going
back over all the evidence. That's really the check and balance in the system.
So in order to speed things along, if you want to execute people, you have to
provide them with those kinds of lawyers. Florida did that by creating CCC.
What they perhaps didn't know they were going to do was create a very
dedicated, very professional organization that has done that check and balance
really to a superb degree. Because of their work, if you go back and look at
Florida's executions -- two or three executions, sometimes zero executions in a
year -- in a state that has almost 400 people on death row.
They're too good.
They're too good. So now maybe they'll be replaced by somebody who's not so
good. But then there's the concern that we won't ever find the Frank Lee
So in the end, DNA is really only one thing that has helped shed light on a
system which is in serious trouble?
This is crucial. Because in a sense, DNA has been a blessing, but it's a gift
that could end up leaving us without any real advance. It's a blessing because
it turned on a light in a dark room, where we can suddenly see many of the
things that have been going wrong with our cases.
Through the shock of the DNA evidence, we can see police misconduct; we can see
problems with eyewitness testimony; we can see problems with jail snitches, et
cetera. If we don't take the moment to then say, "How do we rearrange the
behavior of our police and our prosecutors to avoid these kinds of errors?" --
if we only say, "DNA will save us from this," [then] we have a major problem.
And that is DNA is simply not available in lots of death sentence cases. It's
only available, of course, where there's biologically testable evidence of the
real suspect, the person who probably did the crime.
Even in some of the cases we see litigated, it's not clear that DNA would
answer the question. Frank Lee Smith was an unusual case where it was a deposit
one. So again, Florida has just now passed a law allowing for DNA testing of
people on death row. But that will not be enough if we leave in place the same
incentives that give police and prosecutors really strong career reasons to
sort of pursue death sentences in ways that cause errors.
And frankly, it also raises fears that if DNA is the only thing that will check
this, that you know there'll be less DNA evidence preserved at the end of the
day in some of these cases.
Final thoughts about Frank Lee Smith's story?
... Frank Lee Smith didn't survive to see himself vindicated. You see case
after case of people who've been on death row for 11, 12 years, then they walk
out. That walking out is important. It doesn't put back what happened to them,
but it begins a happy ending that is for us as a society, fundamentally
cathartic to see this person walk out.
Frank Smith didn't get to walk out. And while there's lots of people in
Florida's government and even our editorial pages that are sort of
congratulating ourselves that we didn't execute him -- that instead cancer
executed Frank Lee Smith -- horror of the way he died is what stays with me.
I've seen somebody die of cancer. Many Americans have. It's a horrible, painful
illness even when you're in a lovely hospice or at home surrounded by people
who love you and are taking care of you. To die that way in a maximum-security
prison, surrounded by people who hate your guts, [who] view you as a
recalcitrant mean inmate that refuses to just die quietly is an unspeakable
horror. And everybody in Florida should feel like we're closer to being damned
in a religious sense almost because of that.
The best thing that could come out of it would be a sense of shock about how
our system could have produced not only this, but 19 other cases, several of
them in Broward County, from this same office. The scary thing to me is that it
hasn't had that effect -- at least, not yet. This year, yes, the legislature
passed a DNA bill. ... You had to be almost asleep to not at least pass
a DNA bill after this.
But in the face of many other states in the country considering a moratorium to
stop executions while the state reexamines the death penalty -- and our state
has a much greater need for that than any other state, because we have so many
of these miscarriages of justice -- instead of doing that, what did our
legislature do this year? We decided to put the death penalty in the
constitution, and change the wording of the constitution to make it harder for
the Florida Supreme Court to reverse death sentences.
So far, the message doesn't seem to be getting home.
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