Both sides in Helena murder case challenge judge’s clinging to charge

Wednesday, June 5, 2013

Defense lawyers aligned with their usual opposition Tuesday against an east Arkansas judge’s decision to appoint a special prosecutor in a capital-murder case that state prosecutors have twice tried to drop.

Lawyers for Tony Bernard Smith challenged PhillipsCounty Circuit Judge L.T. Simes’ authority to reject the prosecutors’ decision, and in a filing with the Arkansas Supreme Court argue that Simes’ order denies their client’s right to due process and is a “gross abuse of discretion.”

The defense, led by Public Defender Pat Aydelott, has asked the Supreme Court to step in and rule that Simeshas no authority in the case to order a special prosecutor and should respect the original prosecutors’ decision.

Failing that, Aydelott and his co-counsel Amy Jackson Kell have asked that the high court take over the case, grant the prosecutors’ motion to drop the charges, and free Smith.

Smith, 25, has been jailed for more than two years while awaiting trial. He is accused of shooting Michael Campbell in front of a woman who was a passenger in Campbell’s car at an intersection in Helena-West Helena.

In a response to Aydelott’s petition, Arkansas Attorney General Dustin McDaniel’s office argued that the Supreme Court should respect Simes’ order and allow Smith’s case to continue in circuit court. McDaniel’s office is charged with representing Simes in his capacity as a judge.

The legal issue has resulted in some odd alliances - a capital-murder defendant, his attorneys and prosecutors on one side and a judge on the other - and places a number of questions about a judge’s authority before the Supreme Court for resolution.

The filings also come a day after Simes issued his five page order, which made clear that he wanted another prosecutor to review the strength of the case against Smith.

The public is concerned about violence in Phillips County, the judge said, and he also is worried about the perception of justice there.

His order stopped short of directly questioning the handling of Smith’s case by 1st Judicial District Prosecuting Attorney Fletcher Long and Phillips County Deputy Prosecuting Attorney Todd Murray.

Prosecutors and defense attorneys outside the 1st Judicial District have long noted the significant number of felony cases that are dropped by motion of nolle prosequi in Phillips County. Nolle prosequi is a legal move that allows prosecutors to drop charges while reserving the right to refile them.

After the Arkansas Democrat-Gazette wrote numerous articles about the failing justice system there, Simes and other judges in the 1st Judicial District expressed concerns about the number of years that cases hang in limbo, only to be nolle prossed at the time of trial.

Long and Murray first moved to drop the charges against Smith at an April 5 pretrial hearing, saying a witness was unavailable. After police detectives said that the witness would be available, Simes denied the motion and set a trial date for May 15.

On the day of trial, after a failed attempt to reach a plea deal, Long again moved to drop the charges against Smith, saying the testimony of an eyewitness wasn’t consistent with the accounts of other witnesses.

There are other problems with the case, Long told Simes.

“Neither Mr. Murray nor I can stand in front of this podium or stand in front of a jury and argue in good [conscience] that this defendant is guilty of this crime because we have serious reservations about it ourselves,” Long added.

A handwritten statement signed by Smith and filed in the Phillips County circuit clerk’s office shows that Murray and Long offered to reduce the charge to manslaughter, recommend a 10-year prison sentence and give Smith credit for serving 25 months in jail - but Smith rejected the offer.

Reached Tuesday, Murray said he stood by his and Long’s decision.

“We nolle prossed the case based on all the information we had and our professional ethics,” he said.

Case files from the police, information disclosed by Smith’s defense and the prosecutors’ own interviews with the witnesses factored into the decision to drop the case, he said.

“I don’t want to comment too much on the details of all that because somebody might determine that a special prosecutor should be appointed,” he said. “If that’s the case, he’ll do his job, and I don’t want to say anything that will taint the case one way or the other.”

Reached Tuesday, Aydelott declined to comment on Smith’s case. A message left with Long wasn’t returned by Tuesday evening.

Simes, reached by phone Tuesday, remained firm.

“You’ve got eyewitnesses to a murder. We know the man is dead,” he said, adding that jurors should be the ones to determine whether eyewitnesses are credible.

“When it’s all over and everything settles, the public should feel that everything was done properly.”

Simes’ order seeks to have an independent prosecutor decide the reliability and provability of what police say Smith did.

At 9:16 p.m., on April 28, 2011, Helena-West Helena police officers received a 911 call about someone being shot at York and College streets. When they arrived, officers found Campbell on the ground. He had been shot in the chest, according to court records.

A woman named Kiera Vann told police that she and Campbell were in his truck when a man walked up and pointed a gun at Campbell. The gunman demanded money from Campbell, who then put the truck in drive to get away, Vann said.

As the truck lurched forward, Campbell was hit by a bullet, causing him to run into another vehicle at the intersection, Vann said, adding that she put the truck in park.

Police also interviewed a man named Melvin Wilson, who said he had heard a gunshot and a car crash right before a man with a gun ran by him.

Detectives later showed Vann photos, but she didn’t identify any of the men as the shooter. Instead, she told police that the man who had shot Campbell was on Facebook. She then showed detectives a page with the screen name “Tony B. Gucci,” also identified as Tony Bernard Smith.

When police interviewed Wilson, they showed him aphoto lineup. Wilson identified Smith from that lineup, according to an affidavit.

On July 15, 2011, prosecutors formally charged Smith with capital murder and aggravated robbery. Smith initially was locked up in the Phillips County jail and held without bail. When the jail closed in April, he was moved to Cross County’s facility.

Since mid-May, when Simes said he wanted time to consider the prosecution’s motion to drop the charges, Smith’s defense attorneys have tried other legal maneuvers to free him.

They filed a petition for a writ of habeas corpus in Cross County in an attempt to have another circuit judge order Smith’s release from jail. At the time, the attorneys argued that Simes didn’t have a reason to delay granting the motion and was unlawfully keeping their client locked up.

The defense later filedanother petition for a habeas writ with the Supreme Court, arguing that the Cross County sheriff was violating Smith’s constitutional rights by “unlawfully” detaining him when prosecutors already have said they couldn’t in good faith continue to bring charges. The defense asked the court to order the sheriff to bring Smith before the court and discharge him from custody.

Those legal actions remained pending Tuesday when they were joined by the challenge to Simes’ order. The justices could rule as soon as this week on the petitions regarding Smith’s case.

As of Tuesday evening, Smith remained jailed.

Front Section, Pages 1 on 06/05/2013