requiem for frank lee smith
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photo of simonInterview: JONATHAN SIMON

A law professor at the University of Miami, Simon has reviewed the Smith case at length and here assesses its many deeply troubling elements, from police errors and misconduct to lack of evidence and prosecutorial zealotry. Ultimately, he says, a prosecutor is the community's only real protection against miscarriages of justice. Simon also emphasizes the need to build more checks and balances into the system so that prosecutors will always be mindful of maintaining a fair, balanced commitment to each case.

What comes out of the Frank Lee Smith case that is disturbing to you?

A lot of dimensions to this seem to be troubling. The photo lineup. We know that Chiquita Lowe was shown some pictures of possible suspects, including Frank Lee Smith. What became an issue later is whether she was ever shown a picture of Eddie Lee Mosley [another prime suspect in this case]. She testifies that she wasn't. The police detective at the 3850 hearing [the post-conviction evidentiary hearing] testified that he did show her one. ... His name is Detective [Richard] Scheff of the Broward Sheriff's Office. He was one of two primary homicide investigators in this case, and so he played a very important role.

[So] once Chiquita Lowe's basic testimony [later] came into question, a big issue became whether or not she was ever shown Eddie Lee Mosley. ... If she was, it certainly strengthens the prosecution's case that, at the time, she thought Frank Lee Smith was a closer match to whoever she saw.

If she wasn't, it raises not only a question of sloppy police work. But because Eddie Lee Mosley had been already raised as a suspect -- because he was the cousin of the victim's mother -- it raises really questions of unethical and improper behavior by the police.

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.

What you see almost from the beginning is a shocking pattern of trying to win a conviction and hold on to that against any reasonable questions about whether mistakes were made.

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 client.

[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 getting flustered.

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 Smith?

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?

Anything else?

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 Lee Smith.

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 community.

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 planned.

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 strong here.

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 done."

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 norm.

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 DNA test].

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 long.

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 disturbing.

...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 Smiths.

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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