requiem for frank lee smith
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Did Frank Lee Smith Die in Vain? By Barry Scheck

Barry Scheck is a law professor at the Benjamin N. Cardozo Law School at Yeshiva University and co-founder of its Innocence Project. The Innocence Project, which provides pro bono legal assistance to inmates who challenge their convictions based on DNA testing of evidence, has helped overturn or reverse convictions in more than 100 cases. Scheck is also co-author of Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted.

"Requiem For Frank Lee Smith" -- Ofra Bikel's third consecutive riveting, insightful, and very brave FRONTLINE documentary about wrongful convictions -- confronts the American criminal justice system with the vexing question, Did Frank Lee Smith die in vain? It turns out to be the most difficult question she has raised yet.

In Bikel's first effort, "The Case for Innocence," she addressed the exasperating problems that arise in getting access to evidence for purposes of a post-conviction DNA test and, even after DNA test results that prove the inmate innocent, getting someone out of prison. One of the inmates she profiled, Clyde Charles of Louisiana, was released after nine infuriatingly unnecessary years of litigation to get a post-conviction DNA test. At the end of the documentary, Clyde literally gets into a big, white stretch limousine as he leaves Angola Prison with his sisters who fought so many years to free him -- an apparently happy ending for them.

The other two inmates who were profiled, Earl Washington of Virginia and Roy Criner of Texas, remained in prison despite exculpatory DNA results. The obvious moral to the story is, how could they remain in prison despite being innocent? Eventually, in no small part because of the furor created by the documentary itself, Washington and Criner were declared innocent, received pardons, and were released.

Similarly, in Bikel's next effort, "An Ordinary Crime," she tells the story of Terence Garner, a North Carolina teenager who was picked up for an armed robbery, much to the astonishment of two codefendants who acknowledged their own guilt and explained that the wrong "Terence" was arrested and convicted. It is a spellbinding and dumbfounding tale with an obvious answer -- Garner should be released and granted a new trial. Again, primarily because of the FRONTLINE documentary, Garner's conviction was recently vacated, and he was released from prison. He now awaits a retrial.

The correctives needed here are plain enough legislatively and administratively,but the problem remains simply one of political will.

But what can be done about Frank Lee Smith? He died in great pain of cancer on death row, vainly seeking DNA tests that would have exculpated him. He cannot be released from prison. There is no obvious happy ending, nor is Smith a figure that would naturally compel sympathy from the average viewer. He had two manslaughter convictions as a teenager. He was schizophrenic, poor, and unheralded. Indeed, the DNA results that proved his innocence, 10 months after his death, were leaked the day Al Gore withdrew from the presidential race. Every effort was being made, literally, to bury Frank Lee Smith, his story, and the lessons we can learn from it.

"Requiem for Frank Lee Smith" is a fitting eulogy and it is told by an unlikely group: Two detectives from the Fort Lauderdale police department, Doug Evans and John Curcio; an investigator from Florida, Jeff Walsh; and Smith's lawyers, Marty McClain and Brett Strand. This group developed convincing proof that a man named Eddie Lee Mosley, a one-man crime wave, had committed 60 rapes and 12 homicides in the Fort Lauderdale-Broward County area, including the homicide which put Smith on death row and eight other rape/murders that were pinned on Jerry Frank Townsend, a mentally retarded man who pled guilty to some of these offenses to avoid execution. But the detectives and prosecutors from Broward County who were responsible for reexamining the Smith and Townsend cases turned a deaf ear until DNA testing made it impossible for them to avoid the truth.

No state has paid a higher price for wrongfully convicting the innocent in death-penalty cases. Our Innocence Project at Cardozo Law School carefully monitors post-conviction DNA exonerations in North America (and I should quickly add that we provided some assistance in the Smith and Townsend matters) and I can report that out of 111 post-conviction exonerations (104 in the United States and seven in Canada) this affair sets a record. Every time an innocent person is arrested, convicted, or sentenced to death, the real assailant is often at large, free to commit more crimes. But no offender has even approached what is suspected to be the final count on Eddie Lee Mosley's reign of terror: 60 rapes and 12 homicides.

One would expect Florida law enforcement officials would respond to such colossal errors with minimally effective reforms. One obvious first step would be to pass legislation creating an opportunity for inmates in the position of Frank Lee Smith and Jerry Frank Townsend to obtain post-conviction DNA testing. The National Institute of Justice's Commission on the Future of DNA Evidence, a group of law enforcement leaders selected by Attorney General Janet Reno, issued a lengthy report and a model statute outlining precisely how to institute such a reform. More than 18 states have passed statutes that follow that model statute, and it is the basis for bipartisan legislation in Congress, the Innocence Protection Act, that would authorize DNA testing for any inmate who could use it to raise a reasonable probability that he or she was wrongly convicted or sentenced. Most states passed such legislation after a post-conviction DNA exoneration occurred in their jurisdiction. Since Smith and Townsend were the first post-conviction DNA exonerations in Florida, one would have expected legislation to pass that would have saved these men.

No such luck. The Florida legislature passed a post-conviction DNA statute with two significant flaws that would have kept Frank Lee Smith and Jerry Frank Townsend rotting away in prison. First, the statute does not allow a DNA test for any inmate who pled guilty. Of course, Townsend pled guilty to avoid execution, so he would not have been able to get a test under the new law. This is not an insubstantial problem. So far, two other inmates exonerated by DNA testing, Christopher Ochoa of Texas and David Vasquez of Virginia, pled guilty to avoid execution. The more serious the penalty, whether it be execution or mandatory minimum life sentences (which induced so many guilty pleas from innocent defendants in the Ramparts scandal in Los Angeles), the greater the danger of the innocent pleading guilty. Incredibly, such relief is not available in Florida.

Perhaps even more troubling is the two-year sunset provision included in the Florida statute. Starting October 1, 2002, all inmates in the Florida prison system who think they can prove their innocence with a post-conviction DNA test have two years to file some fairly complex motions seeking such relief. Very few of these inmates can afford a lawyer to file such a motion. They are not entitled to get a lawyer appointed until they file an appropriate motion. Yet our experience over the last decade at the Innocence Project teaches us that it takes, on the average, three or four years, with our help, to gather the necessary transcripts, police reports, and lab reports to file a sound post-conviction DNA motion. Indeed, 75 percent of the time, authorities report that the biological evidence in the case is lost or destroyed. Like Frank Lee Smith, whose application for post-conviction DNA testing was denied because it wasn't made within two years, one can expect that dozens of inmates who could prove their innocence with a test will be unable to do so because of this unfair time limit.

There are two law school Innocence Projects getting off the ground in Florida, at Nova and the University of Miami, but these efforts are woefully underfunded and cannot hope to meet the demand for testing that the legislature has unreasonably created over the next two years. Perhaps even more troubling is the failure of Broward County authorities to take any serious disciplinary action against the detective who bears significant responsibility for Frank Lee Smith's wrongful death sentence. Detective Richard Scheff, as recounted in the FRONTLINE documentary, gave contradictory testimony under oath as to whether he ever showed Chiquita Lowe, the principal eyewitness against Smith, a photo array containing a picture of Eddie Lee Mosley.

Before and during the Smith trial, Scheff twice swore unequivocally that he never showed Mosley's picture to Lowe. After the conviction, in support of efforts to keep Smith on death row, Scheff twice testified that he did show Lowe the photograph and that her post-trial identification of Mosley, not Smith, had to be mistaken.

I asked for a special prosecutor to investigate whether Scheff should be prosecuted for perjury. Ultimately, a report was issued by a neighboring prosecutorial office declining to pursue perjury charges against Scheff. At best, this report can be considered a defense of gross incompetence, or at worst, a whitewash. I would simply invite anyone interested to read the report and reach their own conclusion. Reasonable people might differ. But no reasonable person should take comfort in detective Scheff remaining on the job or the fact that he and his colleagues have been involved in other questionable cases.

A civil rights case will soon be proceeding to trial that turns on a false confession elicited by Broward County homicide detectives that led to the conviction of the confessor, Peter Dallas, and two others. Subsequent to this conviction, other Florida law enforcement officials identified and convicted the real assailants. Currently, serious questions are being raised as to whether a confession obtained from a teenager named Tim Brown years ago resulted in another wrongful conviction. How many wrongful convictions does it take before serious disciplinary action is taken against the Broward County homicide detectives involved in these matters?

In the final analysis, the issues raised by "Requiem for Frank Lee Smith" cannot be answered so simply. We cannot just get the wrong person out of prison and feel the system has, in some small measure, been put right. The correctives needed here are plain enough legislatively and administratively, but the problem remains simply one of political will.

Did Frank Lee Smith die in vain? Bikel does a great service by making us care about that question. Now is the time to act and answer it effectively.

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