requiem for frank lee smith
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photo of bikelAn Interview with Ofra Bikel

Ofra Bikel is a longtime producer for FRONTLINE who in recent years has focused her reporting on the U.S. criminal justice system. Between 1991 and 1997, she produced FRONTLINE's "Innocence Lost" trilogy: three films detailing charges of sexual abuse at a day-care center in Edenton, N.C. and the subsequent trials and post-conviction appeals. The series won three duPont-Columbia Awards, an Emmy, and the Sidney Hillman Foundation Prize. More importantly, the series resulted in freedom for all seven defendants.

In 1999, Bikel's "The Case for Innocence" profiled three longtime inmates who had been fighting for the right to undergo DNA tests that could prove their innocence. Within 18 months after the program was broadcast, all three had been exonerated and freed. In January 2002, Bikel's "An Ordinary Crime" told the story of Terence Garner, a North Carolina teenager convicted of armed robbery and attempted murder even though two codefendants -- who acknowledged their own guilt -- told authorities that the wrong man had been convicted. Within three weeks of the documentary's broadcast, Garner's conviction was vacated and he was released from prison. He currently awaits a new trial.

For her documentary reporting on America's justice system and wrongful convictions, Ofra Bikel was honored in 2000 with the "Champion of Justice" award given by the National Association of Criminal Defense Lawyers.

The obvious first question: How did you find this story? And how does it fit in with your other recent investigations into the criminal justice system?

I found this story when I was doing "The Case for Innocence," my report on prisoners who claimed they were innocent but were being denied DNA tests that could prove their innocence. In fact, I filmed part of Frank Lee Smith's story at that time. He was alive then, on death row, and the prosecution refused to grant him a DNA test. I was then haggling with them trying to get him the test.

It was a complicated situation; the prosecution insisted that it was the fault of the defense for not asking for DNA test before, etc. They and the defense lawyers were barely on speaking terms and it was hard to negotiate between the two sides. Since I had a time problem with "The Case for Innocence," which turned out to be very long (an hour and a half with only three of the stories), I had to drop one story. After a lot of soul searching, I decided to drop this one. But this was a story that haunted me and I always meant to go back to it.

From the very beginning it seemed clear to me that Frank Lee Smith did not commit the crime of rape and murder he was accused of, and that the crime was committed by a man called Eddie Lee Mosley who raped and killed scores of black women in that neighborhood.

What convinced me was that the main eyewitness, who I got to know, changed her testimony and became adamant that Frank Lee Smith was not the man she saw, and that Mosley was, and the police sketch which she helped create was the mirror image of Mosley.

The prosecutor was sure I was wrong, and biased, since this was also the theory of the defense.

Then the week that our program "The Case for Innocence" aired [in] January 2000, Frank Lee Smith died of cancer on death row, apparently in terrible pain.

Eleven months later, because of a break in another case of a man named Jerry Frank Townsend -- who was also in prison for life for rape and murder -- it turned out through DNA tests that Townsend was actually innocent and that Eddie Lee Mosley committed the crimes attributed to Townsend.

Only at this point, with Frank Lee Smith dead for over 10 months, was his DNA sent to be tested (after the defense went to court to fight for it). When the results came back, guess what? The crime was committed by Eddie Lee Mosley. Frank Lee Smith was innocent and dead, having spent 14 years on death row.

Are there similar themes or lessons from this story and your two previous reports on the American criminal justice system ("The Case for Innocence," which originally aired in January 2000; and "An Ordinary Crime," which aired in January 2002)?

Yes, there are a couple. One, when we feel certain that the system would not let innocent people be punished by death, this case (as the others) should make us wonder. Frank Lee Smith was not technically executed by Florida, but [for] all intents and purposes he was. In fact, it would have probably been kinder to execute him than [to] let him linger on death row next to the electric chair, practically lose his mind and die of cancer, in agony, and tied down to a cot.

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.

This is hardly a unique case. This  is how poor people are caught and tried.

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 team?

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 death.

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 case.

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 convicted.

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 released.

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 that?

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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