By Patrick Cronin
The Hampton Union, June 8, 2004
HAMPTON - Lawyers for Pamela Smart are running out of options in trying to get a new trial. She is the former media coordinator at Winnacunnet High School teacher who was convicted of persuading her teen lover and his friends to kill her husband in Derry 13 years ago.
Smart, who is serving a life sentence without the chance for parole for the part she played in the 1990 murder of her husband, Gregory, has been trying to gain an appeal since her 1991 conviction but has been turned down at every step of the way.
Smart's latest blow came in April when a three-judge panel of the First U.S. Court of Appeals upheld a ruling by a federal judge in 2002, which rejected her arguments on her federal habeas petition on why she deserves an appeal.
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether that person is imprisoned lawfully and whether he or she should be released from custody.
The panel, made up by Judge Juan Torruella, Judge Sandra Lynch and Judge Kermit Lipez, reaffirmed a 2002 federal judge decision by stating that several of Smart's claims on why she deserves an appeal were forfeited by not bringing them up before and that others did not merit an appeal.
In 2002, Smart argued several points, including the fact that she deserved a new trial because her right to a fair trial was compromised by the extensive media coverage. Smart also claimed that her Eighth Amendment protection from cruel and unusual punishment was violated because her punishment was more severe than the 28-year sentence given to William Flynn, then 16, who was convicted of second degree murder for shooting Smart's husband.
The reason Smart is now in federal court is because she has exhausted all her appeals at the state level including the State Supreme Court.
Smart's lawyers, Mark L. Sisti, of Twomey & Sisti Law Offices, and Michael R. Schneider, of Salsberg & Schneider, are not taking the latest setback lying down.
On May 28, Smart's lawyers filed a petition with the three-member panel for a rehearing with the full 12-judge appeals panel, according to court documents.
If a rehearing is granted, Smart's lawyers will try and convince the 12-judge panel on why Smart deserves and appeal.
If a rehearing is not granted, there is not much more Smart can do to get an appeal except ask the U.S. Supreme Court to review the mid-level federal court's decision denying the writ.
Smart was convicted in 1991 for being a conspirator to first degree murder.
Smart seduced one of her students, Flynn, who was then 15, to murder her husband.
Flynn testified that he and Smart carried on a steamy relationship for several months, and said she finally convinced him he had to kill her husband so they could be together.
Flynn persuaded his friends to help him carry out the murder.
While Smart received a life sentence without the chance for parole for being the mastermind behind the scheme, the students involved in the murder received lesser sentences for testifying against Smart.
Flynn, along with his friend Patrick Randall, received a sentence of 28 years and is serving it at a correctional facility in Maine.
Vance Lattime, who supplied Flynn with the gun, will be up for parole in 2008 while Raymond Fowler has already been released.
To this day, Smart proclaims her innocence at the Bedford Hills correctional facility for women in New York state and said she was framed by her then teen lover.
She spends her time tutoring other inmates and working on correspondence courses, earning a master's degree in the science of law and a master's of arts from Mercy College. She was beaten up by two other inmates in 1996 leaving her slightly scarred.
After her appeal was denied by a federal judge in 2002, Smart was forced to become her own lawyer for appeal to the U.S. Court of Appeals, according to court documents.
Smart filed a motion for a court-appointed attorney because being in prison in New York she doesn't have access to local court rules, books or other materials to guide her.
Although no one has the right for a court-appointed attorney at the federal level, Sisti and Schneider volunteered to come on board to aid her cause.
So far, there has been no decision on whether Smart's petition for a rehearing will be granted.