Gov. Mike Beebe was asked Friday to appoint a special justice to the Arkansas Supreme Court to weigh whether a Phillips County circuit judge exceeded his authority last month by appointing a special prosecutor in a capital-murder case.
The request for a special justice came a day after the state Supreme Court decided to take up the case involving the 25-year-old defendant, Tony Bernard Smith, who has been jailed for about 2½ years awaiting trial.
Justice Donald Corbin did not participate in the decision to hear the case. He formally recused Friday in a one-page letter. Justices don’t have to give a reason for stepping aside, and Corbin didn’t provide one in his letter.
Gregg Parrish, executive director of the Arkansas Public Defender Commission, said the recusal was likely routine because the justice’s wife, Dorcy Kyle Corbin, is assisting the public defenders handling Smith’s case.
“It’s my understanding that in the past that it’s common for Judge Corbin. They recognize Dorcy’s relationship with our office, and he’s always taken this action in the past as well,” Parrish said.
The special justice will replace Corbin for the consideration of only Smith’s petition, a standard procedure when justices recuse from a case.
Beebe spokesman Matt DeCample said the Supreme Court notified the governor’s office of the request Friday, and that it would work quickly to line up a special justice because the court had expedited consideration of Smith’s case.
The special justice will help decide a complicated legal conflict over the authority of a judge to replace prosecutors who haven’t voluntarily stepped aside.
The particulars of the case stem from Smith’s arrest in the April 2011 death of Michael Campbell in Helena-West Helena.
At the time, Phillips County Deputy Prosecutor Todd Murray charged Smith with capital murder and aggravated robbery, saying Smith killed Campbell while attempting to rob him.
But two years later in May, Murray and his boss, 1st Judicial District Prosecuting Attorney Fletcher Long, appeared in Phillips County Circuit Court before Judge L.T. Simes and said they couldn’t proceed in “good conscience.”
They had “serious reservations” about Smith’s guilt because a key witness had changed her story, and other evidence didn’t support it, they said.
Simes denied the prosecutors’ motion in June, and on Aug. 16 he appointed Little Rock attorney Ron Davis to replace Long and Murray.
In his order naming the special prosecutor, Simes wrote that he didn’t trust Long and Murray’s motivation in dropping the case because the FBI was investigating possible illegal activity committed by the Phillips County prosecutor’s office.
The judge called the prosecutors’ reversal a further example of a pattern of dropped cases, exposed in an Arkansas Democrat-Gazette series, that had caused many Phillips County residents to “question the integrity of the judicial system from top to bottom.”
Simes also said state law supported his removal of the prosecutors from Smith’s case 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 are being investigated, and Long, who has filed an appeal of the judge’s order, has denied that his office is the target of the federal investigation.
On Thursday, the Supreme Court decided to take up a petition filed Sept. 9 by Smith’s attorneys, Pat Aydelott and Amy Jackson Kell, that asks the high court to order Simes to respect the original prosecutors’ decision to drop the charges.
The defense attorneys also offered the justices an alternative of having the high court take over the case, grant the prosecutors’ motion to drop the charges and free Smith.
The attorneys, who pushed for Simes to recuse from the case, have argued that the judge overstepped his authority by replacing Long and Murray with a special prosecutor.
The matter was complicated Sept. 11 by Attorney General Dustin McDaniel’s decision to file papers with the high court supporting Long in the case even though the prosecutor wasn’t a named party.
McDaniel’s office is charged with representing state officials, prosecutors and judges in their official capacities. In Smith’s case, the attorney general’s office was listed on the high court’s docket as Simes’ attorney.
On Thursday, the court wrote in its order that McDaniel’s filing on behalf of Long was “improvidently filed.”
According to Black’s Law Dictionary, “improvidently” refers to a judgment made “without proper information as to all the circumstances affecting it, or based upon a mistaken assumption or misleading information.”
On Friday, Stephanie Harris, the Supreme Court’s communications counsel, said the court’s order was referring to a procedural error.
“Because the prosecutor wasn’t a party, the court shouldn’t have accepted the filing,” Harris said.
McDaniel spokesman Aaron Sadler said his office was in agreement with the court’s “assessment of the proper parties” in the case.
“At this point, the attorney general’s office represents neither prosecutors nor the court in this matter,” Sadler said.
It was unclear from court filings viewed Friday whether Simes had retained an attorney.
Arkansas, Pages 9 on 09/21/2013