requiem for frank lee smith
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Requiem for Frank Lee Smith

Written, Produced, and Directed by
Ofra Bikel

ANNOUNCER: In January, 2000, FRONTLINE broadcast a program called The Case for Innocence profiling three life prisoners who, in spite their serious claims of innocence and DNA evidence in their favor, could not be set free.

EXPERT: What most people think is, if you're innocent and you prove you're innocent, you ought to get a new trial.

ANNOUNCER: Roy Criner had been sentenced to 99 years for rape. Clyde Charles had been convicted of rape and sentenced to life without parole. Earl Washington had been sentenced to death, later commuted to life.

But within a year and a half of the broadcast, all three were free. After 20 years in prison, Clyde Charles was released in December, 1999. Having served 14 years, Roy Criner was pardoned in August, 2000. After 19 years in prison, Earl Washington was released in 2001.

EXPERT: The system is broken. Lawyers don't get innocent people out of the penitentiary, journalists do.

ANNOUNCER: But as journalists, we know there were other cases, including one we had originally investigated but didn't have time to finish. It haunted us, so two years later, we went back to it. It was the story of Frank Lee Smith.

NARRATOR: Little did Chiquita Lowe realize that the drive she took one night 16 years ago in Fort Lauderdale, when she was 19, would haunt her for the rest of her life.

CHIQUITA LOWE: It was April, '85. I asked my grandmother can I hold her car to go over to a friend's house. I went down the street by the park, and as I was coming down, I seen this guy here. He was flagging the car down. So I stopped, and he asked me did I have 50 cents. I told him no.

NARRATOR: The man, she said, seemed delirious, agitated, with a droopy eye and a glassy look. Frightened, she drove off.

CHIQUITA LOWE: I came back into the neighborhood about 30 minutes to a hour, and I seen all the commotion on the street that I came down. And I seen ambulance. I seen police cars. I see a lot of people gathering around. So I went over there, and I asked them what happened. They said a little girl got killed.

NARRATOR: The little girl, 8-year-old Shandra, had been brutally raped and was unconscious. Her mother, Dorothy McGriff, had come home late from her work as a nurse's aide. She told the police she had seen a stranger standing near the window. When she approached him, he ran. In the dark she couldn't see his face, she said, only his shoulders.

Inside, her daughter lay dying. Her 9-year-old son, Reginald, was asleep in his bed. Shandra had been beaten and strangled. She was on life support for nine days before she died.

Detective Richard Scheff of the Broward sheriff's office led the investigation.

Det. RICHARD SCHEFF, Broward County Sheriff's Office: We conducted our investigation. We ultimately made contact with two individuals, a Chiquita Lowe and a Gerald Davis. They indicated that they had observed a man emerge from a field across the street from the Dorothy McGriff residence. They had engaged in a conversation with this man. The conversation itself was bizarre, and the man appeared bizarre.

Given the amount of traffic, which was very light traffic that went through that area, the proximity to the crime scene and the close time between when this man is observed and when Dorothy McGriff comes home to find the suspect emerging from the house, it seemed logical to consider this person as a potential suspect.

NARRATOR: At the police request Chiquita Lowe and Gerald Davis went to the sheriff's office to help produce a sketch which they both agreed looked like the man they saw. Chiquita took a copy of the composite home and showed it to her family.

A day later, a man wheeling a cart with a television set on it approached Chiquita's house, knocked on the door and offered to sell it. Someone in the family took a look at him and panicked.

CHIQUITA LOWE: Then everybody came running in here, saying "Quita, Quita, the killer here! The man on the sketch out here! Get up! Get up! Get up! You better call the police!" As I get up and I go to the back door, I seen this person here walking away from me, and the straggly hair is all I really can identify and say that that was the man.

And they kept saying, "Call the police. Call the police." So I called the police and told them, and they came out and they picked the man up on the next couple of streets and put him in jail.

NARRATOR: The man they arrested was Frank Lee Smith. He had a record. He was convicted at 13 for manslaughter and at 18 for murder. He had been on parole for the last four years.

ANDREW WASHOR, Defense Attorney: I think they probably canvassed the area and they spoke to different people, and they said, "Hey," you know, "this guy," you know, "looks like somebody you might be," you know, "speaking of." Then they probably pulled a, you know, sheet on him, saw that he had been arrested previously, and then it went from there.

NARRATOR: For Andrew Washor, Frank Lee Smith's defense attorney, the case became especially significant.

ANDREW WASHOR: To be honest with you, I have never tried a murder one case after that particular case because I felt that the system was, you know, unjust. And I just- I just felt that he didn't- he didn't do it.

NARRATOR: The defendant, Frank Lee Smith, 38 years old, son of a prostitute who was murdered, never knew his biological father. He had spent a total of 15 years behind bars, first after he stabbed another youth in a scuffle after a football game. Then at 18, he and a friend shot a man during a hold-up. He pleaded not guilty to the rape and murder of little Shandra Whitehead.

ANDREW WASHOR: There was no physical evidence presented.

OFRA BIKEL: Nothing?

ANDREW WASHOR: No.

NARRATOR: The prosecutor, who is now a judge, would not talk to us on camera, but what he had at the trial, he said, were witnesses. Dorothy McGriff, the victim's mother, testified that she picked Frank out of a photo line-up, but when questioned by the defense, she said that she identified the person by his shoulders.

Gerald Davis described the man he saw as having a wild look, straggly hair and droopy eye, but he wasn't confident in identifying the defendant in the photo line-up, and he was reluctant to cooperate.

That left Chiquita Lowe as the main witness.

Chiquita Lowe, 19 at the time, was nervous but consistent. She also described the man she saw that night as having a wild look, straggly hair and a droopy eye. He was big, with big arms and a big chest. She had first picked the defendant out in Detective Scheff's photo line-up, then confirmed her identification at trial. Frank Lee Smith, she said, was the man she saw.

ANDREW WASHOR: Chiquita Lowe's testimony was the key to the trial. But she was the only one that was insistent out of all the people that she had a good look at him and that this person in the courtroom and the person she ID'd was the person that she had seen on the street.

NARRATOR: Detective Scheff, who was made Deputy of the Month for having solved this crime, testified that he showed the eyewitnesses two line-ups, one with Frank Lee Smith and one without him. He also testified that he trapped the defendant into an incriminating admission.

Det. RICHARD SCHEFF: This crime was committed in the presence of an 8-year-old boy, the brother, Reginald Whitehead, who was carried by the suspect from one bedroom into another and slept through the entire incident.

And I said to Frank Lee Smith, I said, "Look," you know, "I don't know whether you did this or not, but I want you to be aware of something. If you did this, I'm going to be able to find out because that little boy did not sleep through this whole incident. He saw the person who murdered his sister. And if that's you, he's going to be able to identify you."

His response to me was to say, "No way that kid could have seen me. It was too dark." And I said, "Oh, really?" He said, "Yes, the lights were out." And I said- obviously, I mean, there's something to that statement because I had no idea whether the lights were on or off. To me, that was a very compelling statement.

NARRATOR: There were no tapes or transcripts of the interrogation, and during sentencing, Frank denied he had ever made such a statement. However, this was presented to the jury as an involuntary confession.

After five days of trial, the jury convicted Frank Lee Smith, and he was sentenced to die in the electric chair, joining the hundreds of inmates on Florida's death row.

But there was a problem with the death penalty there. Although Florida was the leading state in executions at that time, there were no lawyers assigned to represent the condemned inmates in their appeals. It came to such a point that in 1985, the Florida supreme court stopped all executions until the state could provide the inmates with lawyers.

Eager to solve the problem and move the executions faster, the legislature created an agency of special public defenders to take on the death row appeal process. The Capital Collateral Council got hold of Smith's case when his death warrant was signed in 1989. Among the lawyers who would represent Frank Lee Smith during the appellate process would be Bret Strand, Marty McClain, and an investigator, Jeff Walsh.

JEFF WALSH, Defense Investigator: I first came on to the case with the execution right around the corner, less than 90 days. Well, we were under unbelievable pressure, really. It's hard to imagine when you get up one morning and you go into work, and then someone says, "Hey, work on this case, and they want to kill him in a couple of months."

And when you look at the case on the surface, it's very troubling if you're a defense investigator like myself. When you look at the type of victim and the nature of the crime itself and Frank's criminal history, you know, you're, like, "Oh, this is not good." But as I started to dig into the case, it became very clear that there was really no evidence or very little against Frank Lee Smith.

NARRATOR: Jeff Walsh's immediate task was to look for clues the police investigators neglected. He began in the streets.

JEFF WALSH: And of course, I knew in this area there had been many rapes and/or homicides of young women that, you know, were very similar in nature to the case I was working on. And I realized by reading the police report that there were several other individuals, other thank Frank, who were listed as suspects. And Eddie Lee Mosley was one of the names that was linked to many of these crimes. I had no idea who he was. Obviously, I started digging deeper.

NARRATOR: He went to the police station to examine Eddie Lee Mosley's file.

JEFF WALSH: As I got into the Eddie Lee Mosley files, I saw a photograph of Mr. Mosley, and it was stunning. This is the photograph of Eddie Lee Mosley, and this is the composite sketch that was put together by Chiquita and a police sketch artist. And I mean, they're just identical. And the minute I saw the photo, I remember I ran to the telephone, and it was like Mardi Gras or something. It was a big event, you know? And we actually that day came up with a slogan we had. It was "Free Frank Lee" because we felt we had uncovered who it was Chiquita had seen that evening.

NARRATOR: The resemblance was indeed striking, down to the droopy eye that both Gerald Davis and Chiquita Lowe described. The next step was to show the picture to Chiquita Lowe. It had been almost four years since the trial. Jeff Walsh wasn't sure Chiquita would even agree to see him.

JEFF WALSH: Well, I had a hard time locating Chiquita. We just were working around the clock, trying to find her. And actually, a mail carrier is the one who told me where she lived ,ultimately.

And we spoke through the door, the closed door. She was concerned about who was there. And when I told her why I was there, she immediately opened the door and let me in and, basically, asked me, "What took you so long? Where've you been?" And I didn't really quite know what to take of that, at first, and just explained to her what I was doing on the case and showed her the picture of Eddie Lee Mosley. And she- it was very much of a physical reaction.

CHIQUITA LOWE: That picture, I seen the man like I seen him yesterday. I seen the droopy eye. I seen the look on his face. And it just really just shook me up. It shook up. I was so afraid. When Jeff left that night, I closed down every window in the house and just locked all the doors. I was so afraid.

JEFF WALSH: Well, it was a very strange combination. It was relief, like, I finally get to tell somebody, but very tense and nervous and afraid. You know, "What does this mean? How's Frank going to react?" That was really one of her biggest concerns. "Frank Lee Smith must hate me."

CHIQUITA LOWE: This is an innocent person that been to jail for 16 years. This man did not do this, and I feel so bad, so guilty and ashamed.

NARRATOR: Looking back now, she says she can't stop thinking how, as a teenager, she came to identify the wrong man.

CHIQUITA LOWE: I was pressured by my family, the people that's in the neighborhood, and the police officer, because the kept telling me I'm the only one can put this man away because I'm the one that seen that man that night. And that's the way I was raised and brought up is to obey older people.

NARRATOR: She had identified Frank Lee Smith's picture before in Detective Scheff's line-up, but when she saw him in the flesh, she said, she began to have doubts.

CHIQUITA LOWE: When I went in that courtroom and seen that man, he was too skinny, too tall, and he did not have the droopy eye that I seen the night of the man when he murdered this little girl.

NARRATOR: She told no one of her doubts.

CHIQUITA LOWE: I know that I lied on the stand that day, but I was pressured because of what the police officer was telling me, what the people in the neighborhood was going through, and that little girl's mother.

OFRA BIKEL: So what did you do?

CHIQUITA LOWE: I went home and told my grandmother and cried on her. And she told me that, "Quita, we have to pray about it." And that's what I did. I kept praying over the years. And something came good about it in '89, when Jeff Walsh came to me.

NARRATOR: That was when Jeff came with the picture of Eddie Lee Mosley. Who was this Mosley, and what did the police know about him? The answer was staggering.

Mosley's home, marked by a yellow dot on the police map was, in the middle of a neighborhood rife with rapes and murders of young black women. The green dots stand for sexual assaults, the red for rape/murders. Eddie Lee Mosley was hardly an unknown. His name has been connected to these crimes for years.

Detective Kevin Allen has been working for 15 years for the Fort Lauderdale police, whose jurisdiction borders that of the Broward sheriff's office. The crimes were committed in both jurisdictions.

KEVIN ALLEN, Detective, Fort Lauderdale Police Dept.: I was a rookie homicide detective in 1987. One of our patrolmen had found a dead body in northwest Fort Lauderdale and asked for any homicide detective. So I got on the radio and volunteered for the case, and within half an hour was at the crime scene.

OFRA BIKEL: And?

Det. KEVIN ALLEN: When I got to the crime scene, it was a black female who was nude from the waist down. The top portion of her clothing was pulled over her breasts. Looks like she'd been dead four or five days.

OFRA BIKEL: What did you do?

Det. KEVIN ALLEN: I worked it like any other homicide. You know, basically, get to know the victim, get to know the victim's family, friends, acquaintances. Came to, basically, a dead end after about a week or two. I reported that, you know, to my supervisor at the police station, and that's when I ran into to Doug Evans.

NARRATOR: Doug Evans was a Fort Lauderdale police detective who retired in 1987.

Det. KEVIN ALLEN: Doug had asked me how I was doing on the black female that had been found raped and murdered. And I basically told him I'd come to a dead end. And he said this, he goes, "I haven't been to that crime scene and I haven't read anything about it, but let me tell you about it. It was a black female, nude from the waist down, top portion of her clothing pulled over her breasts, and she was dead for several days when you found her." And I said, "Yes. How did you know that?" And he said "Because it's been happening here for the last 15 years."

NARRATOR: Doug Evans has been following Eddie Lee Mosley's activities for almost 30 years.

DOUG EVANS, Retired Detective, Fort Lauderdale Police: In 1973, I was assigned to be in charge of Fort Lauderdale police department rape squad. We had in excess of close to 300 cases. We went through the files and discovered that we had at least possibly three different suspects involved in the rapes at that time. We arrested all three subjects. The last one was Ed Lee Mosley, and that was our first introduction to him.

We held live line-ups. I made up a photo line-up with Mosley, and the victims identified him. So I went to the chief. I personally told him that this was the biggest problem that the city of Fort Lauderdale police department, all the police department had was Eddie Lee Mosley. I said he was identified in 41 sexual battery cases. See, he never confessed to anything. He never confessed, not one time, to any case. All these people identified him.

NARRATOR: When in 1973, Eddie Lee Mosley was brought to trial on two counts of rape, he was declared incompetent by reason of insanity and was shipped to a mental institution for the criminally insane in Chattahoochee, Florida. Then, five years later, a new string of rapes and murders occurred around the same neighborhood.

Capt. McKINLEY SMITH, Fmr Detective, Fort Lauderdale Police Dpt.: Doug and I were having coffee one day, and I said, "Doug, do you know that they found some more bodies?" And he says, "Yeah." And he said, "You're thinking what I'm thinking." And I said, "Yep. I wonder if Eddie Lee Mosley's out again." And Doug said, "Well, I'm going to make some calls, and I'll get back with you." And Doug got back with me and said, "Mack, he's out."

NARRATOR: But they soon learned that another suspect had already been arrested. He had confessed to almost everything. His name was Jerry Frank Townsend, and he had an IQ of 50, the mental capacity of a child. Based on his confession, he was convicted of two rape/murders and pleaded guilty to others. He was sentenced to life in prison.

Doug Evans didn't buy it.

Det. DOUG EVANS: They never conferred with me during the investigation, the sergeant or the sheriff's department, after they arrested Townsend. They never talked with me. Even before, even when we went to trial, because the detective from the sheriff's department said at the trial that I had a fetish for Eddie Lee Mosley.

OFRA BIKEL: You had?

Det. DOUG EVANS: Yeah, that I had a fetish for Eddie Lee Mosley. Well, I did. Whatever you want to call it. Any time a man has committed that many criminal offenses, well, then somebody should be concerned about it.

Det. KEVIN ALLEN: Beginning in 1973 and continuing through 1987, when he's incarcerated, there are no unsolved rape/murders of black females in northwest Fort Lauderdale. Immediately upon his release, within 30 days, we find a black female at the rate of one a month until he's incarcerated again. And that history has repeated itself consistently over 15 years.

NARRATOR: Out of the mental institution and back in the neighborhood, between 1980 and 1987, Mosley was in and out of prison for rape. In April, 1985, when Shandra Whitehead was killed, he was out.

Shandra's mother, Dorothy McGriff, was his cousin.

Without knowing any of this history, when Chiquita Lowe saw the picture of Mosley that Jeff Walsh showed her, she was certain that he was the man she had seen on the night of the crime. She gave a sworn affidavit to that effect.

The Florida supreme court was impressed enough with a key witness changing her mind to order the trial judge to hold an evidentiary hearing to consider Chiquita's new testimony. Waiting for that hearing, Chiquita went over and over in her mind what she would say to the court.

CHIQUITA LOWE: Please, the Lord gave me a second chance to prove myself, that I know that I made a mistake, and I'm here trying to get Frank out. So I'm begging you, please let Frank out. He needs to be out. He did not do that crime. He needs to be out. Frank did not do that. Eddie Lee Mosley did it. And please let him free. Please. Let him free. I just can't stand up here and just think that this man is going to die of just something that I said when I was young, very young.

NARRATOR: Marty McClain handled the evidentiary hearing.

MARTY McCLAIN, Defense Attorney: I found her extremely convincing. I was always convinced by her. I was convinced by her demeanor, by her behavior, by what she said in and out of the courtroom. And so I- my goal in March of '91 was to present her testimony, in order to convince the judge they had the wrong guy/

NARRATOR: Joel Silvershein, now assistant state attorney, explained the state's position in 1991. They were determined to prove Chiquita's new testimony was not credible. In other words, when she changed her story, she was lying.

JOEL SILVERSHEIN, Asst State Attorney, Broward County: I think she was telling the truth in 1985 and 1986, when she consistently, under oath, identified Frank Lee Smith as the person who perpetrated this crime. She gave statement after statement after statement under oath, saying that Frank Lee Smith was the one who she saw that night. And after they show a 5-year-old picture of Eddie Lee Mosley to her, all of a sudden, she changes her mind?

CHIQUITA LOWE: They just kept on badgering me and badgering me on the witness stand and just kept on frustrating me. And I kept telling them what I said back then, I was pressured into it. But the man who did this was Mosley. That's the man who I seen the night that stopped and asked me for that 50 cents. That's the man who did it. No doubt about it, that's the man that I seen.

NARRATOR: Then Detective Scheff, who had always been consistent in his depositions and trial testimony that he showed the witnesses two line-ups, one with Frank Lee Smith and one without him, now remembered that he actually showed them a third line-up with Eddie Lee Mosley in it.

MARTY McCLAIN: In 1991, when it became convenient to try and say Chiquita Lowe is now lying, suddenly, there was a third line-up. He couldn't produce it. He had no documentation to support it. He just suddenly started saying there was third line-up and he showed Chiquita Lowe a photograph of Eddie Lee Mosley, and she did not identify him.

[www.pbs.org: Read the chronology of this case]

Det. RICHARD SCHEFF: I know I did not draw any reference to the Eddie Lee Mosley line-up in my notes. I think that saying that I said there were only two line-ups might be a mischaracterization of what I said in trial. I don't think- and I may be wrong, but I don't recall testifying that there were only two line-ups, per se. I think I was asked a question which contained- a segment of the question contained an issue about any potential other suspects or line-ups or photos, to which I answered no. That was obviously not the correct answer. The answer was yes.

OFRA BIKEL: What does that mean?

MARTY McCLAIN: It means that according to Deputy Scheff, we showed her Eddie Lee Mosley at the time that this happened, and she said, "That's not the man." And so therefore, you can't believe her when she says now, in 1991, "That's the man." It was an effort to discredit her and to say that she's lying.

OFRA BIKEL: Scheff insists that he had a line-up in which he put a picture of Eddie Lee Mosley.

ANDREW WASHOR: And who did he allegedly show it to?

OFRA BIKEL: To the eyewitnesses.

ANDREW WASHOR: OK. If he did something like that, it's his obligation under the law to give a copy of that line-up to the prosecutor, and it's the prosecutor's obligation to give the defense. And I was his defense attorney at the time, a copy of that line-up- I never received a copy of that line-up. I knew nothing about an Eddie Lee Mosley, and I don't believe that Mr. Dimitrouleas knew about it, either.

OFRA BIKEL: The prosecutor?

ANDREW WASHOR: Correct.

OFRA BIKEL: No one seems to remember it. This is the line-up that everybody says they didn't see.

Det. RICHARD SCHEFF: OK, well, now, not everybody says they didn't see it.

OFRA BIKEL: Chiquita didn't see it.

Det. RICHARD SCHEFF: Chiquita says she doesn't recall seeing it.

OFRA BIKEL: The prosecutor?

Det. RICHARD SCHEFF: The prosecutor I know I probably did not show it to. Dorothy McGriff remembers seeing it.

OFRA BIKEL: The lawyer?

Det. RICHARD SCHEFF: OK, you're talking about Andy Washor? No. He would not have seen it, either. The only person that I know of for a fact that remembers seeing it and has testified to that is Dorothy McGriff.

NARRATOR: Dorothy McGriff, the victim's mother, has now become the state's chief eyewitness. But Mrs. McGriff's memory of the events has changed through the years, from identifying the man's shoulders in the dark, to seeing a flash of his face, to picking him out from a line-up, then from a photo album, where she also identified Mosley as her cousin.

Reginald Whitehead [sp?], now 26, is Dorothy McGriff's son and Shandra's brother. Mrs. McGriff refused to talk to us, but Reginald and his wife, Tracy, agreed. This was the first time they had seen the composite and Mosley's picture.

TRACY WHITEHEAD: This is a big resemblance, a big resemblance. And this is what the witness saw at that point? Boy, I don't see how they ever could have mistaken that composite with that person.

OFRA BIKEL: I have a feeling that Reggie doesn't see it that way.

TRACY WHITEHEAD: Maybe he just doesn't want to see it. It's too emotional for him to look at the resemblance, but it's very obvious.

REGGIE WHITEHEAD: I see a resemblance, yeah. See a big resemblance.

OFRA BIKEL: I don't know if your mother saw the composite, but if I were to show those to her side by side, do you think she could change her mind that it could have been Mosley?

REGGIE WHITEHEAD: I'd give it a 50-50 chance that it's possible, you know? But it's- when it's something you believe that happened and you know- or not believing, but you knowing who you saw, you can't change it. Just can't.

NARRATOR: Reginald and Tracy, who have four children, are very close. And yet she knew almost nothing about the family's tragedy.

TRACY WHITEHEAD: All he told me is that he had a sister before and she died, and he didn't too much go into detail. It wasn't really something discussed. It was just a hush-hush thing. It was as if she wasn't there, as if she never existed, that- it was like she was never born. That's the way I saw it. She wasn't discussed.

NARRATOR: Even though never discussed, Reginald says she has never been forgotten.

OFRA BIKEL: How much did you think about it in all these years?

REGGIE WHITEHEAD: A lot. A whole lot. Sometimes day to day. Hard to go to sleep. Sometimes when I'm at work, I'll- it'll just cross my mind. Sometimes when I do go to sleep, I'll have to, like, watch the TV so it won't- I can have other things to think about besides the bad thing that happened to my sister. And that's how I, like, go to sleep at night.

OFRA BIKEL: Still today?

REGGIE WHITEHEAD: Still today.

NARRATOR: A month after the 1991 evidentiary hearing, the judge rendered his decision. The motion was denied. He found Chiquita hesitant, slow, evasive and not credible. He concluded that the fact that she did not remember seeing Mosley's picture in Detective Scheff's so-called third line-up showed that she was confused. Copies of the decision were sent to the two parties.

But then it turned out that State Attorney Paul Zacks participated in the drafting of the judge's decision without the defense's knowledge. This is called ex parte communication, and it is considered improper. The defense objected.

The fight over the ex parte communication would take seven long years, until the Florida supreme court vacated the order. A new hearing was scheduled in 1998. All that time, Frank Lee Smith was on death row, waiting. By then, he had been there for 13 years. His life was passing in aging mug shots.

BRET STRAND, Defense Attorney: Frank is kept at Florida State Penitentiary, right near where the electric chair is. So for the last 13, 14-plus years, he's been there very close to where they've executed every man. He knows.

JEFF WALSH: Over the time I knew Frank, definitely he was deteriorating mentally. And it became harder and harder to communicate with Frank because he was losing touch with reality and because his anger intensified over the years. And he fell apart. It was very, very sad to watch him just lose his mind.

NARRATOR: Frank's closest relative was his Aunt Bertha.

BERTHA IRVING: I think about him all the time. All the time. I think about him all the time. I read the letters sometime and I get upset. I had a whole lot of letters. I took all of them and I put them somewhere where I don't even know where I put them, just to get them away from me for a while.

"Dear Bert, my heart have grown to become as stone now. And I only fault fate and a lack of understanding for not having allowed me to live a life as everyone else in this world. That is, deserving the opportunity to express their talent. And now I see what my life have been, wasted."

 

[www.pbs.org: More on Frank Lee Smith's life and struggles]

NARRATOR: Finally, in 1998, the new evidentiary hearing began. The first part of the hearing dealt once again with the credibility of Chiquita Lowe.

The famous mystery line-up that Detective Scheff talked about and couldn't produce seven years before finally and inexplicably made its appearance, looking unlike any other line-up shown previously. As for Eddie Lee Mosley, shown in the line-up in a picture which the police said was taken a year before the crime, he, too, looked different- thinner, with close-cropped hair.

This became the state's argument. The Mosley photo, which Chiquita identified, had been taken five years before the crime. According to the state, Chiquita identified Mosley when he no longer looked like this photograph.

JOEL SILVERSHEIN: The Eddie Lee Mosley picture was taken in 1980, about five years or less than five years prior to the homicide. People's appearances change, and the question you must ask is, "When was that picture taken?" Eddie Lee Mosley at the time of the homicide did not look like the picture that was presented into evidence by Mr. Smith's lawyers.

NARRATOR: Detective Kevin Allen has written a yet unpublished book about Eddie Lee Mosley.

OFRA BIKEL: Who does that look like?

Det. KEVIN ALLEN: Eddie Lee Mosley.

OFRA BIKEL: Any question about that?

Det. KEVIN ALLEN: Well, it's a composite. It's not a photo, so it can't be an exact match. But that's- I spent a lot of time with Eddie Lee Mosley, and that looks a lot like Eddie Lee Mosley.

OFRA BIKEL: If I had shown you this sketch in the late '80s or even early '90s, do think that's what you would have told me?

Det. KEVIN ALLEN: Yes.

OFRA BIKEL: Eddie Lee Mosley?

Det. KEVIN ALLEN: Yes.

OFRA BIKEL: Did anybody show you the composite?

Det. KEVIN ALLEN: No.

NARRATOR: Another reason the state insisted that Eddie Lee Mosley couldn't have done the crime was because, according to his, MO, they said, he never harmed children.

JOEL SILVERSHEIN: Eddie Lee Mosley was kind of a creature of habit. He had a modus operandi. He had a way of operating about him. He- he did not like- he was not into kids. He didn't do his homicides inside. All his homicides were committed outside. They were all with adults. They were all with people who he either picked up or with prostitutes.

NARRATOR: Doug Evans does not agree.

OFRA BIKEL: Didn't he kill a little girl in 1979? I don't remember her name.

Det. DOUG EVANS: Sonja Marion.

OFRA BIKEL: She was quite young, wasn't she?

Det. DOUG EVANS: Yes, 14. Teresa Cummings, 15. Children. Also a young man, also a young boy, also molested by Mosley. He wasn't killed, but he was molested by Mosley.

OFRA BIKEL: And the police knew it?

Det. DOUG EVANS: The reports are there.

NARRATOR: Why, when there were two men, one with an overwhelming number of rapes and murders, the other also with a record of manslaughter and murder but never rape- why would the police and the prosecution fight so fiercely to keep the one on death row and not even investigate the other?

BRET STRAND: That's the $64,000 question here. I have theories and ideas. I don't know what's true. Maybe it's incompetence on the police's part. Maybe because it's black-on-black crime and nobody cares. "Let's just get anybody, somebody." It's beyond comprehension why they never looked at Eddie Lee Mosley, never went to his house, never talked to him.

NARRATOR: According to the state, there was no reason to investigate Mosley.

OFRA BIKEL: Why not?

JOEL SILVERSHEIN: Smith was identified as the person who committed this crime. You can blame a lot things on Eddie Lee Mosley, but this homicide is not one of them.

OFRA BIKEL: You're sure?

JOEL SILVERSHEIN: Yes.

NARRATOR: Donald Jones is a professor of law at the University of Miami.

DONALD JONES: One of the things that strikes me about this case is they decided not to spend much time, much resources, much money, much anything. It's as though this person's life wasn't worth time. It wasn't worth checking. It wasn't worth this extra step. And why isn't it worth it? Is it because it's the life of a black man?

NARRATOR: Professor Jonathan Simon, of the University of Miami School of Law, followed the case closely.

JONATHAN SIMON, Professor of Law, University of Miami: It seems to me- again, we don't know. We weren't in the room. But what we can reconstruct in retrospect is a decision made pretty early on 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-- you know, that is deeply troubling because of the finality of what we are talking about.

NARRATOR: By 1998, dozens of people across the nation were proved innocent and released from prison based on DNA evidence. An advanced form of DNA testing was now permitted in the Florida courts. Some DNA materials still existed in the case of Shandra Whitehead.

One month before the 1998 evidentiary hearing, the defense lawyers filed a motion asking to test Frank's DNA. But it only started a new round of angry legal battles. First the prosecution suggested that the DNA test be done in their own lab. The defense refused, asking for the FBI lab and for the results to be known only to themselves.

The state refused. The defense then gave up their conditions, except for the testing by the FBI, at which point the prosecution changed their mind and opposed the testing altogether, on the ground that it was procedurally barred.

    [June 15, 1999]

    JOEL SILVERSHEIN: We are, at this point, standing on our procedural bar, at this point in time.

    OFRA BIKEL: Which means?

    JOEL SILVERSHEIN: Which means this. You have- they had two years from when this- they had two years from when DNA was admissible, or from the point in time that they could have brought this evidence forward, to file or amend their motion to include DNA. They didn't do that.

BRET STRAND: They have objected and said it's procedurally barred, which means that Mr. Smith should have asked for it nine years ago. And since he didn't, he can never have it tested and must just be executed.

NARRATOR: Why did the state first agree to the DNA test and then oppose it? Carolyn McCann, assistant state attorney, explained. It all had to do with how strong Chiquita Lowe's testimony would be in the new hearing.

CAROLYN MCCANN, Assistant State Atty, Broward County: Before the evidentiary hearing was scheduled to commence in September, our office sent a letter to the Florida Department of Law Enforcement, exploring the possibility of doing DNA testing on particular pieces of evidence. And the reason that we did that was that this case was coming back for an evidentiary hearing because a key witness, in at least in the Florida supreme court's mind, had recanted her testimony.

We knew that this witness, who we counted on at trial, was no longer going to be a witness for the state, was going to be a witness for the defense. Therefore, losing a key witness, we needed to bolster our case as best we could. So we explored looking for other evidence via DNA that would put Frank Lee Smith at the scene of this homicide because, in our mind and in the mind of law enforcement, he did it. We had no doubts.

NARRATOR: They found Chiquita's testimony at the hearing unimpressive.

CAROLYN McCANN: As it turned out, in our minds, she was not credible. She was not believable. And so the reasons that we wanted the DNA testing no longer existed.

[www.pbs.org: Read law experts' analyses of this case]

NARRATOR: Professor Donald Jones says he was outraged.

DONALD JONES: How could they be so unconcerned about whether they sentence this person to death? How could they be so careless, as if they're simply dealing with ordering lightbulbs or something? "We don't need these extra lightbulbs." "We don't need to," you know, "put a molding on the house." I mean, it's so impersonal.

This is a person's life, and you don't need to check the DNA? This is a person who could be sentenced to death, and you don't need to check this evidence? What makes them so sure? What produces this almost imperial arrogance?

NARRATOR: The judge denied the motion for a new trial, as well as the testing of the DNA. For the next year, there would be motions filed by the defense, objections from the state, more filings by the defense, with no ruling from the judge.

Meanwhile, on the other side of town, at the Fort Lauderdale Police Department, Detective John Curcio was cleaning and organizing his station's files. He was going to throw out all the old cases and reassign the ones which were still open.

At one point, he came across a file that piqued his interest. It was Jerry Frank Townsend, the man who had been jailed 20 years before. It contained the cases of two women, Cathy Moore, 24, and Sonja Marion, 13, both raped and killed in 1979, both confessed to by Townsend. Curcio remembered Doug Evans's theory about the Townsend cases.

JOHN CURCIO, Detective, Fort Lauderdale Police Dept.: Doug Evans always believed that Jerry Frank Townsend had not committed either Sonja Marion's case, her murder, or Cathy Moore's case. So again, that was one of the things, when I was looking at the crime scene photos, that made me pull up the cases to see exactly what they had as far as evidence in 1979 against Jerry Frank Townsend.

NARRATOR: Cathy Moore's body was so badly decomposed that no further investigation could be undertaken. But as for Sonja Marion, there was some DNA left on her clothing.

Curcio then sent Townsend's DNA to be tested against semen left on Sonja Marion's clothing. He also added Frank Lee Smith's DNA, just in case. Neither matched. He then tried another batch of DNA of various suspects, Eddie Lee Mosley among them.

It was the first time that Mosley's DNA had ever been tested. By October, 2000, the result was clear. It was Mosley.

Det. JOHN CURCIO: Biologically, I think we're proving pretty much what Doug Evans has said for years is factual. Doug always felt that Eddie Lee Mosley was the only serial killer working or killing people around Dillard High School, committing these murders.

On Eddie Lee Mosley, you're going to have Vetta Turner, '73; Emma Cooke, 1983; Teresa Giles, 1984; Sonja Marion, 1979-

NARRATOR: When the news came out, the various law enforcement agencies seemed shaken up.

Det. JOHN CURCIO: It certainly opened the eyes to the fact that Eddie Lee Mosley certainly was involved in killing a 13-year old.

NARRATOR: How about an 8-year-old? Pressured by the defense, the prosecution finally and somewhat reluctantly sent Frank Lee Smith's DNA to the FBI lab to be tested against what was left in Shandra's rape kit.

They also sent Mosley's DNA. Frank Lee Smith was excluded. Mosley's DNA matched.

The news was released at the height of the Florida national election crisis. It would be Jerry Frank Townsend who would get the headlines. Frank Lee Smith's sentence was also vacated.

JONATHAN SIMON: We've had lots of people around the country now vindicated by DNA evidence, and we are all familiar with that moment when we see them walk out of jail. And while there's just no way that that can put back what's been taken from them, it is a fundamentally important part of the beginning of a happy ending. You see the psychological look of relief and vindication on their face of them and their families, their lawyers. Frank Lee Smith didn't get that.

NARRATOR: Ten months before he was exonerated, on January 30th, 2000, at age 52, Frank Lee Smith died of cancer on death row, his grave marked by a small flag. Jeff Walsh was the last visitor to have seen Frank Lee Smith alive.

OFRA BIKEL: How did you find him?

JEFF WALSH: It was- you know, it was terrible. Very- it was just awful. He was- had lost a tremendous amount of weight. He was clearly in a lot of pain. He was strapped to a hospital gurney. Essentially, he was naked, and he was just- I mean, just in excruciating pain, just moaning. I sat there and gave him water while I was with him. He was just dehydrating, starving. And again, it just goes back to the truth of the matter is that they just didn't care about him as a human being. At all.

JONATHAN SIMON: We've had many of our political officials and some of our newspaper editorials almost congratulate themselves that, "Well, we didn't execute him. Instead, cancer executed him for us." But you know, for those millions of us in this country that have seen what cancer is like up close, when we see a loved one die of cancer, to understand what happened to Frank Lee Smith, the fact that he died from very painful cancer, surrounded by people who absolutely hated him, with nobody around to even tend to his need for water, to make sure he got enough medicines, to pain reliever-this is something that should hang over every citizen of Florida.

NARRATOR: Apparently, not everybody dwells on that.

A few weeks after we left Florida, FRONTLINE received an unexpected letter from the Broward sheriff's office, telling us that even if Frank were innocent of Shandra's murder, they would have never allowed him to leave prison alive. Their explanation was that when Frank Lee Smith had been arrested, they found a knife on him, which violated his parole.

Therefore, the letter said, "If DNA testing had been conducted while Mr. Smith was still alive, it is possible he would have been moved off death row. However, he would have remained in prison."

Chiquita Lowe said she learned about Frank's death from the newspapers.

CHIQUITA LOWE: I didn't get a chance to say my goodbyes to him. I didn't get a chance to even ask him is he upset with me. And that's something that's really just inside of me, just tearing me apart. It's tearing me apart. It's just that I couldn't have no closure with him. I wanted closure with him when he was alive. And I really thought and I was waiting for that chance and that day for him to get out so I could get close to him and to tell him, "I tried everything I had to do to get you out of here, and now you're out of here. And if there's anything I can do, allow me to do it for you."

I really wanted to do that. I did. I had my hopes and my dreams up on that, that day. It's part of my daily routine. I surely do.

OFRA BIKEL: Every day?

CHIQUITA LOWE: Every single day I do. If it wasn't for me, he wouldn't be where he is. He wouldn't have had to go through all that torture and that torment. He didn't have a chance to have a wife, kids, no one to love him. And I feel that it's my fault.

NARRATOR: Chiquita is now saving money, she says, to buy Frank a headstone.

As for lead detective Richard Scheff, he was accused by the defense of knowingly giving false testimony in the Frank Lee Smith case. After a lengthy investigation, it was announced that there wasn't sufficient evidence to charge him with the crime of perjury.

Eddie Lee Mosley is still in a mental institution for the criminally insane, by now connected to 17 murders and 60 rapes. He is now considered one of the nation's most prolific serial killers.

 

 

Requiem for Frank Lee Smith

WRITTEN, PRODUCED, AND DIRECTED BY
Ofra Bikel

EDITOR
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A Frontline coproduction with Ofra Bikel Productions, Inc.

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ANNOUNCER: For more on this story, explore our Web site, which includes an interview of producer Ofra Bikel about the background to her investigation, reports on Florida's shameful ranking in death penalty case errors, a look at the U.S.'s changing attitudes on capital punishment and more on our Web site, including whether your local station is rebroadcasting this program. Then join the discussion at PBS on line, pbs.org, or write an email to frontline@pbs.org or write to this address. [Dear FRONTLINE, 125 Western Ave., Boston, MA 02134]

 

 

Next time on FRONTLINE: From the field to the slaughterhouse-

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ANNOUNCER: -to your family.

    CAROL TUCKER-FOREMAN, Consumer Federation of America: The 5th circuit court of appeals gutted the nation's meat safety laws like a slaughterhouse guts a steer.

ANNOUNCER: Do you really know what's for dinner? Modern Meat next time on FRONTLINE.

 

 

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