Lois Nadean Smith heard rumors that her son's girlfriend arranged to have her son, Greg Smith, killed. On the morning of July 4, 1982, Smith and Greg picked up the girlfriend, Cindy, at a motel in Tahlequah, Oklahoma. They went for a holiday spin. A jury would soon end Smith's independence.

Cindy denied that she threatened Greg. Smith wasn't listening. She found a knife in Cindy's purse, and stabbed Cindy's throat. They drove to Smith's ex-husband's house, and sat the wounded Cindy in a recliner. Smith taunted Cindy with a pistol, and shot Cindy several times. Cindy fell to the floor. While son Greg reloaded the gun, Smith laughed and jumped up and down on Cindy's neck. Greg returned the gun to Smith, and told his mother to “finish it off.” Smith pumped four more rounds into Cindy's body.

Eminently Unqualified to Geometrically Interpret

The jury found Smith guilty of first degree murder, and chose the death penalty. After she exhausted local appeals, Smith petitioned for federal writ of habeas corpus. She asserted, among several other grounds, that: 1) the prosecution introduced tainted forensic evidence; and 2) counsel was unconstitutionally ineffective because it did not research and offer evidence about Smith's mental condition, organic brain damage, drug use, and sleeplessness.

At trial, Kenneth Ede, an Oklahoma State Bureau of Investigation chemist, examined a blouse that Smith wore at the time of the murder. Ede testified that he “geometrically interpreted” approximately twenty small blood spatters on the blouse, and concluded that the person who wore the blouse stood parallel to the victim and was the “shooter.”

But after her direct appeal, Smith acquired new evidence that Ede lied about his qualifications as a blood-spatter expert, that he was not qualified, and that the spatter on the blouse “does not permit an expert to conclude who fired the murder weapon.”

The U.S. Court of Appeals, Tenth Circuit, for purposes of Napue analysis,[1] agreed. However, Smith failed to show that the prosecution knew that the testimony was false, or material. “Specifically, given the wealth of evidence pointing to Smith's guilt,” wrote the Tenth, “we are not persuaded that, had evidence of Ede's lack of qualifications been disclosed to the defense, the outcome of the trial would have been different.”

Brain-Damaged Defense? Or Strategy. . . .

Smith further contended that trial counsel did not investigate and present certain mitigating evidence at the penalty phase. The evidence would have revealed that Smith's intelligence was below average, that she suffered an organic brain injury in an automobile accident in 1964, and that she “was drinking alcohol and had gone without sleep for approximately twenty-four hours prior to the homicide.” A psychological examination that Smith received after her conviction suggested that her organic brain damage, “particularly when combined with drugs and alcohol, substantially impaired her ability to control violent impulses.”

The Tenth Circuit agreed that the Oklahoma Criminal Court of Appeals (“OCCA”) properly held this claim meritless. First, the jury knew of this evidence from the trial's guilt phase. “The fact that defense counsel did not rehash this evidence during the second stage,” the OCCA wrote, “is not sufficient to make defense counsel's assistance ineffective.”

Second, counsel deliberately steered clear of this evidence because Smith “did not want to openly admit about being that much under the influence of drugs and alcohol” when her parents attended the trial proceedings. “In other words,” the Tenth Circuit wrote, “defense counsel's second-stage strategy was shaped by Smith's own decision not to emphasize her intoxication. . . .”

Ruling: Judgment of U.S. District Court, Eastern District of Oklahoma, denying petition for writ of habeas corpus, affirmed.

Footnotes:

See Napue v. Illinois, 79 S.Ct. 1173 (1959) (prosecutor's failure to correct witness's testimony, which prosecutor knows to be false, denies defendant Fourteenth Amendment due process of law).