Executed May 24, 2001

The Honorable Bob Holden
Governor of Missouri
State Capitol
Box 720
Jefferson City, MO 65101

Re: Sam Smith

Dear Governor Holden: 

On behalf of the American Civil Liberties Union, we urge you to stay the execution of Sam Smith, currently scheduled for May 23, 2001, and commute his sentence of capital punishment to life in prison. Clear evidence of gross incompetence of counsel merits this extraordinary relief. Moreover, the mother of the victim has asked that mercy be shown to Mr. Smith. 

At virtually every juncture of Mr. Smith's trial and subsequent appeals of his conviction, he suffered from gross incompetence of counsel. His trial lawyer had never participated, let alone served as lead counsel, in a capital murder case. This lack of experience led to disastrous results. 

Less than a year earlier, Mr. Smith had been stabbed by another inmate and, as a result, spent seven days in the prison hospital. The stabbing led to Mr. Smith suffering from nightmares of the attack and associated mental and physical complications. Mr. Smith informed his trial counsel of this incident and its debilitating effects. However, trial counsel did nothing to investigate and present this mitigating evidence at trial. Under Missouri law, a criminal defendant is entitled to request a mental evaluation. Again, trial counsel failed to act, thus forcing Mr. Smith to file two pro se motions. A subsequent mental examination determined that Mr. Smith suffered from post-traumatic stress disorder at the time of his offense, raising a question of whether Mr. Smith lacked the requisite mental capacity to be found guilty and sentenced to death. 

Further, trial counsel failed to interview potential witnesses, object to the qualifications of jurors, or seek an instruction that Mr. Smith's actions qualified, at most, for a finding of voluntary manslaughter. 

All of these errors were compounded by the trial counsel's failure to properly prepare for the penalty phase of the trial. After the jury returned a verdict of first-degree murder, trial counsel was so distraught that he was unable to continue representing Mr. Smith. In effect, Mr. Smith found himself representing himself on the question of whether he should be put to death. The penalty phase commenced within 100 minutes after return of the verdict. The jury then imposed the death sentence after only deliberating for 80 minutes. As a result, no mitigating evidence was presented at this critical time that could have resulted in a lesser sentence. 

The trial court judge subsequently ordered that trial counsel withdraw from representing Mr. Smith. However, the trial counsel did not move to withdraw until six months later, and failed to inform Mr. Smith or his appeals counsel that he continued as counsel of record. As a result, Mr. Smith was denied his right of review by the trial court as well as his right of appeal. Trial counsel submitted the trial court transcript to the Missouri Supreme Court some seven weeks before it was due, and then he failed to inform either Mr. Smith or his new appeals counsel of his action. This early filing accelerated the due date for the accompanying motion for review, which expired before Mr. Smith's appeals counsel were made aware of trial counsel's actions. This technical error precluded Mr. Smith from exercising his right to review by the trial court and the court of appeals. Both the Missouri state and federal courts have refused to review Mr. Smith's conviction of death because of his technical error. This travesty of justice was so compelling that three Justices of the Missouri Supreme Court dissented strongly from the arbitrary decision of the Court denying Mr. Smith relief based on this procedural defect. 

Mr. Smith's trial counsel was subsequently disbarred for similar acts of incompetence. His lack of fitness to have represented Mr. Smith in a capital case is further evidenced by the fact that trial counsel later served a four-year prison sentence for forgery. 

The mother of the victim, Aretha Payne, also asks that mercy be extended to Mr. Smith. Ms. Payne has forgiven Mr. Smith for killing her son and believes that justice, either for herself of for the people of Missouri, will not be served if Mr. Smith is executed. 

The ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the U.S. Constitution. Once a sentence of death is carried out, there can be no taking it back. In Mr. Smith's case, the gross incompetence of his trial counsel clearly violated his Constitutional right to effective assistance of counsel and should not be the basis of a sentence of death. We would also hope that you give great weight to the statements of the victim's mother asking that you show mercy to Mr. Smith. 

We respectfully urge that you stay the execution of Mr. Smith and commute his sentence to life in prison. Sincerely, 

Diann Rust Tierney
ACLU Capital Punishment Project 

Matt LeMieux
ACLU of Eastern Missouri

Mark D. Johnson
Pro Bono Counsel
Squire, Sanders & Dempsey, L.L.P.