Two, another lesson which runs through all the cases I investigated is that
you cannot trust the system that blindly. There are too many things wrong with
it. It is not a fair system, it is not even necessarily a just system. It is a
system, and like all systems it is quite flawed.
This famous saying -- "This is the best system in the world. It is not perfect, but
it is the best" -- may or may not be true, but even if true, it is not comforting.
Being "better" than other systems does not mean a great deal.
But there is one difference with the Frank Lee Smith case, compared to the
other ones I covered. In almost all other cases that I produced for FRONTLINE,
there was sort of a "happy end." The viewers reacted, wrote letters, sent
e-mails and telegrams, and innocent people were freed (albeit after having served
10 to 20 years in prison). This story does not have a happy ending and it
should serve as an important lesson. You cannot count on the press and TV or
anyone else outside the justice system to right the wrongs. The justice system should be able to do
it and it cannot, or doesn't want to.
As with this story of Frank Lee Smith, is it always the original police
investigation which lays the foundation for the problems and obstacles which
follow? What about the counsel for the defense? How adequate was Smith's legal
As for the investigation in this case, there were accusations against the
lead detective Richard Scheff of committing perjury both in the trial and the
later hearings. There was a long investigation. But the end result
was that there was not enough evidence to indict Scheff and he walked away with
a slap on the wrist.
But I must point out that this was a very odd case. Frank Lee Smith was
sentenced to death based on one eyewitness who saw someone in the neighborhood
who she thought looked like him half an hour before the murder. Period. There
was nothing else. No eyewitnesses to the crime, no forensic evidence, no
blood, nothing. This case should probably have never gone to trial with this
kind of evidence but it did, and Frank Lee Smith was sentenced to
So why was he convicted? You ask if the lawyer was any good. The
court-appointed lawyer was actually a very caring and good lawyer who was so
horrified by the result that he never wanted to touch another death penalty
If he were a big lawyer in a big office and had the funds and time to investigate the crime, he might have realized what the police knew for a long time: that Eddie Lee Mosley was raping
and killing black women by the dozens. But he didn't have the time or the
money. If Frank Lee Smith had money, there is no way he would have been
This is hardly a unique case. This is how poor people are caught and tried.
There was no other suspect at the time. (The theory about Eddie Lee Mosley was
that he did not rape children. It turned out that he did.) Frank Lee Smith
had a murder record [for a crime] he committed in his teens, and so for the prosecution
and the jury, I guess, that seemed good enough, and it might even be good
enough for some of our audience. After all, they would say, he wasn't an angel; he was not an innocent man. That is true, but he was innocent of this crime,
and if the system worked he shouldn't have had to pay with his life for it.
As far as the police are concerned, it is known that the police are willing
to lie, usually to convict a guilty person. It's the end justifies the means
theory. The question is, how can you be "innocent until proven guilty" if the
police already assume that you are guilty to start with?
As you've mentioned, in your previous reports on miscarriages of
justice, the viewers had something they could do: The men were still alive and
viewers wrote officials, FRONTLINE, etc. What can one do in this case, where
[Frank Lee Smith] is already dead?
The only thing I can say is to do what they tell us to do now that
terrorist attacks are possible: Be vigilant. Do not assume that the system is
working. Do not assume that if someone is in prison he is unquestionably
guilty. And certainly do not assume that if someone is sentenced and then
there is evidence of innocence (as in this particular case when the lead, and
only, eyewitness changed her testimony) that he/she will be
It is worth repeating what every criminal lawyer and law professor knows:
Innocence is not enough to get one released from prison or even from death
row. You cannot say, "I am innocent. I can prove this, but I cannot prove
anything else." This is not enough to free you.
This may be a perfectly fine thing if the public understood and approved of
it. The problem is that most of the public has no idea how it works unless they
come face to face with it in their own lives.
On the larger scale, these cases happen because the public's fear of crime
is larger than their wish for better justice. Most of the judges and the
prosecutors who are elected are elected because they are tough on crime and
proponents of the death penalty.
So, if you don't like what you see, don't vote for these judges, or for
these prosecutors, or for these politicians.
What about the
state of Florida? How deeply did you get into researching the state's record on
death penalty errors?
Professor James Liebman's landmark February 2002 report on the death
penalty in the U.S. -- "A Broken System"
-- concludes that Florida is among a handful of states at highest risk for
wrongful convictions and thus is making it the nation's leader in sending
innocent people to die.
He calls the system there "Florida State Roulette" and refers specifically
to Frank Lee Smith's case, as well as a few others.
Editor's Note: Read the section from
"A Broken System, Part II" that refers to Frank Lee Smith's case; his case, one of the four profiled by the authors here, is mentioned toward the end of this section.|
The Frank Lee Smith story certainly raises the question, how do we
change the behavior, the attitudes of police and prosecutors? How do we do
Most psychologists will tell you that the first condition needed to change
attitudes is that the person wants to change. I doubt that the police or
prosecutors want to change, or that the public wants them to change. The fear
of crime is much stronger than the wish for justice.
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