The Arkansas Supreme Court decided Thursday to let the state’s prosecuting attorneys weigh in on the side of a Phillips County capital-murder defendant who is challenging a circuit judge’s authority to appoint a special prosecutor.
In a per curiam order, the high court granted a motion filed earlier this month by the Arkansas Prosecuting Attorneys Association and accepted a friend-of-the-court brief that had been filed by the group pending the justices’ approval.
The brief was the first outside participation the high court has allowed in the case of Tony Bernard Smith, a 25-year-old murder defendant who is challenging Phillips County Circuit Judge L.T. Simes’ decision to replace two prosecutors in the case.
In May, the two original prosecutors - Fletcher Long, the 1st Judicial District prosecuting attorney, and Todd Murray, the deputy prosecutor in Phillips County - tried to drop the charges of capital murder and aggravated robbery against Smith.
Instead, in August, Simes ordered the prosecutors’ removal, saying he didn’t trust their judgment in the case in part because at least one of them was being investigated by the FBI.
In the brief made public Thursday, Marc McCune, the president of the prosecuting attorneys association, wrote that if the high court sided with Simes, it would allow judges to infringe on the constitutional discretion of prosecutors to file criminal charges.
“If Circuit Judges have the authority to act in the manner in which the Honorable L.T. Simes has acted, the criminal courts of this State would be thrown into disorder and confusion,” wrote McCune, who is the prosecuting attorney for Crawford County.
McCune said his association believed that Long acted appropriately in Smith’s case and that the Supreme Court should enforce his decision to dismiss the charges against Smith.
Deciding otherwise would open the door for more judges to infringe on the authority of prosecutors, McCune wrote.
“Anytime a circuit judge decided that the Prosecuting Attorney did not exercise his discretion in a manner that agreed with the judge, hecould appoint a Special Prosecuting Attorney to re-evaluate the evidence … To do so is clearly a violation of the separation of powers doctrine and the constitutional duties charged these respective offices by the framers of our Constitution,” he wrote.
McCune’s filing sides with arguments made by Smith’s attorneys since the Supreme Court took up the case last month.
The high-court case stems from Smith’s arrest on April 29, 2011, in the death of Michael Campbell. At the time, prosecutors sought the death penalty, accusing Smith of killing Campbell during an attempted robbery in Helena-West Helena.
But two years later, Long and Murray changed their minds.
In the spring, they decided to drop the charges of capital murder and aggravated robbery against Smith, saying in May that they couldn’t proceed in “good conscience” because they had reservations about his guilt.
A key witness had changed her account, and other evidence didn’t support the case against Smith, they said.
Simes didn’t rule on the motion that day, and later in June, he denied it.
In August, Simes formally removed the prosecutors and appointed the special prosecutor in their stead.
In his removal order, the judge wrote that he was replacing Long and Murray because he didn’t trust the prosecutors’ motivation in dropping the case because the FBI was investigating possible illegal activity committed by the Phillips County prosecutor’s office.
Simes said state law supported his order because it allows a judge to replace a prosecutor who is being investigated for potential criminal acts.
An FBI spokesman has declined to say whether Long or Murray is being investigated, and both men have denied the judge’s accusations.
In filings before the Supreme Court, Smith’s attorneys have argued that Simes abused his position. The judge wrongfully infringed on prosecutor’s authority only because he disagreed with their decision to drop the case against Smith, they argued.
Smith’s attorneys have called for the high court to release him from jail, remove the special prosecutor, disqualify Simes and provide any additional relief that “will provide the constitutionalprotections to which [Smith] is entitled.”
But a law professor representing Simes has argued that the judge properly exercised his discretion because the prosecutors had failed to show good cause for dismissing the case.
And the judge was right to appoint a special prosecutor because the elected prosecutor had “functionally abdicated his duty,” Simes’ lawyer wrote.
Simes’ attorney pointed out that the judge was puzzled by the prosecutors’ actions because the “very same day” they decided to drop the case, they had earlier offered to reduce the charges against Smith to manslaughter and agree to a 10-year prison sentence. Smith refused the offer.
The sequence of events - and errors made by detectives that included losing a recorded interview with Smith - led Simes to believe that the prosecutors and the police were “nonchalant, indifferent, or worse,” the judge’s attorney wrote.
The Supreme Court has taken up Smith’s case on an expedited schedule.
In the meantime, Smith remained jailed Thursday, as he has been for the past 2½ years awaiting trial.
Northwest Arkansas, Pages 7 on 10/25/2013