After 15 years, appeals process continues on
By: Faith Swymer
© Copyright 2007, Keene Equinox
If Pam Smart's case was like any usual crime story, it would begin with the conspiracy, climax with the murder, and conclude with her conviction. Fifteen years after she was found guilty, the story still continues as she goes through a slew of high profile lawyers and strategies in her appeals to go free.
The media was still overwhelmingly interested in her case when her original trial lawyers, Mark Sisti and Paul Twomey of Chichester, N.H. filed her immediate appeal for a re-trial on June 5, 1991, after being sentenced on her final convictions.
The Beginning of the High Profile Attorneys:
According to a June 10, 1991 New Hampshire Union Leader article there was much criticism by New Hampshire attorneys when Smart retained high profile Boston attorney J. Albert Johnson on June 6, 1991, instead of continuing with Sisti and Twomey, two highly respected lawyers.
Among Johnson's previous clients were Patricia Hearst and the defendants of the Mai Lai massacre in Vietnam. Ironically enough, he is also a member of the board for Papa Gino's, the pizza chain key witness Cecelia Pierce worked for at the time of the murder.
Most of the criticism laid in the fact that Smart was trading up for someone with more celebrity.
"Lawyers were selected on their expertise in certain areas," said Linda Wojas, Pam Smart's mother.
Steven MacAuliffe, the New Hampshire Bar Association president-elect at the time, told the Union Leader in 1991, "People make a mistake when they think the name or fame or celebrity of someone will affect the outcome of an appeal."
What many people who weren't immediately involved in Smart's re-trial appeal didn't know is that Johnson had taken the case pro-bono, and was the only lawyer to do so in her entire appeals process, according to a prison interview with Smart on Oct. 21, 2005.
At the time, Smart said she had been referred to Johnson, and turned down an offer from famed attorney Alan Dershowitz to have him and his Harvard Law students handle her re-trial appeal for $50,000. Smart said if Dershowitz won the appeal, it would have cost her an additional $100,000 for her new trial. Dershowitz wasn't available for comment, but he told media at the time that he was too busy with other clients to take on Smart's case.
Sisti Still in the Game:
Sisti said that he didn't know why such criticism came up after Smart's decision to switch counsel, because it is common for appeals.
"It happens all the time. It is certainly the client's decision and I wish them the best luck possible," Sisti told the Union Leader.
"We are sure he will serve Pamela's interests admirably well," Paul Twomey told the (North Andover, Mass.) Eagle-Tribune.
Sisti has remained involved with all of Smart's appeals and other legal work ever since he was involved with her trial, often by filing paperwork for out-of-state attorneys that have taken up Smart's appeals, such as Greg Adamski out of Chicago and Jay Acton from New York City.
According to a telephone interview with Sisti, Twomey has "geared down" his legal duties, often being involved with New Hampshire Democrats and doing occasional misdemeanor work out of Merrimack, N.H.
Over the course of Smart's re-trial appeal in August 1991, Johnson's main argument was excessive pre-trial publicity that tainted the non-sequestered jury.
"Media doesn't have anything to do with it, it's a dead horse. Enough is enough," said Sisti about Johnson's appeal arguments. "[The focus on publicity] was exactly the problem with Johnson's appeal. There are so many other good issues."
Sisti said the media and its "bizarre, circus-like" environment was an important role.
"It was affecting witnesses. It was affecting my client and may have affected the jury," said Sisti. "It was so bad at one point in time, Pam was leaving the courthouse escorted by the sheriff's deputies."
However, Sisti said Smart's most important appeals issue was how Judge Douglas Gray wouldn't let the defense re-call Bill Flynn to the stand over a letter sent to inmate Douglas Abrahams at the Rockingham County Jail.
"We intercepted communication from another inmate that he lied under oath, he acted on the stand," said Sisti of the document's contents.
In appeals' documents obtained by the Equinox, defendant Vance Lattime Jr. wrote the following to Abrahams, who had been transferred to Concord State Prison. In it, he attempted to explain why he was testifying against Smart.
"When we were arrested as you know we were kids which meant the state had to spend over six months to certify us. While Pam was an adult so she could just get a trial date. Which means she could go to trail (sic) long befor (sic) us leaving her the option that if she was found guilty to testify against us for a lesser charge… What I'm trying to say is we were (expletive). We had no choice her or us."
In a classic sense, Smart's lover, Bill Flynn, was made an offer he couldn't refuse by the New Hampshire Attorney General's office. To save himself, he wrote he had to testify against Smart. In an intercepted letter also written to Abrahams, Flynn expressed both regrets and fear.
"Pame's (sic) lawyers have filed a motion not to let us testify. I pray to God they get it. I hate myself for haveing (sic) to do this but I just don't have a choice. I'll never forget the day they told me she said she'd testify against us if she got convicted. I (expletive) cried that night. The attorney Generals (sic) always ask me if I still have feelings for Pame and I can't answer. I know I'm stupid if I do but I don't know. I guess I'm all (expletive) up. There (sic) afraid I'll get on the stand and say she's innocent. I dred (sic) that day more than anything," wrote Flynn in January 1991 to Abrahams.
Later in another intercepted letter to Abrahams, Flynn wrote about his decision to plead guilty.
"I pleaded guilty but because I did they knocked it down to 2nd (sic) degree premeditated murder. Best I could do under the circumstances. They said Pame would plead now so they won't have to make me testify against her. God I hope so."
Former Senior Assistant Attorney General Paul Maggiotto, who prosecuted Smart's trial, said that he remembered there being an issue of a note, but that it was denied because it didn't offer any new evidence on the defense's theory that Flynn had lied, according to a telephone interview Nov. 7, 2005.
Maggiotto said he thought he asked Flynn if he wrote it and that he had no reason to believe that he had not written the note. Maggiotto's theory was that Flynn was seen as a rat in prison for testifying against Smart and he was trying to boost his reputation, because Maggiotto said he believed there was no way Smart would have testified and admitted guilt.
Sisti, however, believes the note "would have created a lot of reasonable doubt" for the jurors if they were allowed to hear testimony regarding it.
"Gray called it jailhouse bravado and that it wasn't important," said Linda Wojas.
The letters were sealed by Gray and were not opened until May 1991.
Sisti said there were other appellate issues that should have been brought up instead of put on the back burner to the media circus argument. Among them are concerns over the non-sequestered jury during deliberations and the Cecelia Pierce wiretap tapes.
"[Judge Gray is] a fine judge," Sisti said.
"Were there a number of errors during trial? Yes," said Sisti of Gray's refusal to let Flynn re-take the stand and not to sequester the jury during the immense media coverage.
Wojas also said that Judge Gray entered the room of the deliberating jury three separate times and had ex-parte communications with them. Wojas said she never found out what was said in those discussions.
"(Judge Gray) was the best trial judge at that time in New Hampshire," said Gerry Laflamme, a criminal defense lawyer out of Massachusetts with 26 years of experience in the legal field. He has faced Judge Gray previously.
Laflamme also described Twomey and Sisti as two of the best defense lawyers in New Hampshire, and said that Smart "got more than a fair trial."
One of the more damning pieces of evidence against Smart were the wiretap tapes recorded from a telephone conversation between Smart and Cecelia Pierce, but many of the key players in the trial downplayed its impact.
"There's no question there were anomalies," said Sisti of the tape's clarity. "It was not the smoothest interception of information in police history."
Maggiotto said he wished that the technology would have been better at the time, because the Derry Police Department recorded the tap off a car phone into a handheld recorder, which caused much of the tape to be near-inaudible.
Maggiotto argued that the defense was given a transcript of the tape, but Smart differed to the transcript, and said that a lot of the things she said were taken out of context.
Along with the noted publicity argument, Johnson also argued that the jury was tainted. Johnson claimed that Karen Sicard, a juror for Smart's trial, had tried to sell Johnson tapes recorded during the trial of the juror's thoughts for $25,000. The tapes were never sold, and Judge Gray ruled that there was no juror misconduct in the re-trial hearing, and Johnson could not prove otherwise.
By denying the argument, Johnson wasn't allowed to individually interview all 12 jurors that sat on the Smart case.
The four motions that Johnson had filed included the Sheppard motion, which argued that through the Sheppard v. Maxwell 1966 decision that pre-trial publicity had tainted the jury. Another two motions involved the individual circumstance of Sicard, an allegation that the state didn't disclose exculpatory evidence, or materials that indicate a defendant did not commit a crime, from an agreement by Patrick 'Pete' Randall.
Johnson also alleged other instances of jury misconduct when Wojas received an anonymous phone call that reported a juror talking about the case at a bar during deliberations. Johnson said he has also received similar calls.
All the motions were immediately denied except for the "Sheppard" motion, which was ruled on by Gray later.
The prosecution argued that no such agreement existed with Randall, which according to the defense stated that Patricia Randall wouldn't be charged with obstruction if Patrick Randall testified against Smart.
According to Gray, the agreement came about after Randall had already signed his plea bargain. The motion of this particular argument was filed by Sisti and Twomey.
At the time of the decisions for the motion, Johnson told the press he was interested to find out the outcome of the "Sheppard Motion."
"By far the most time spent by my office and by me in oral arguments was on the motion on lack of due process based upon pretrial prejudicial publicity," Johnson told the Associated Press in August of 1991.
"It was embarrassing for the state of New Hampshire and court system to let it take place," said Sisti of the media circus.
During the outcome of the first appeal, Johnson and his colleagues filed their next appeal to the New Hampshire Supreme Court. At the time that Smart was filing her second appeal, the teenagers had pled guilty for their roles but had not yet been sentenced. Raymond Fowler wasn't set to be tried until the following May.
The appeal to the State Supreme Court was heard the spring of 1992, where once again all of Johnson's appeals were denied. After the State's highest court rejected Smart's appeal, Johnson petitioned to the U.S. Supreme Court, but the justices refused to hear the case.
Johnson did not return numerous telephone requests for an interview.
The Late 1990's Appellate Era:
Following those appeals for re-trial, New York City attorney Jay Acton took over Smart's appeals, and with Sisti filed a writ of habeas corpus in April 1997.
The habeas corpus petition claims Smart did not receive a fair trial due to excessive pre-trial publicity that should have made Judge Gray move the trial location. Other arguments included Gray's ex-parte communications with the jury on three occasions, without Smart or the defense lawyers present, rumors the boys plotted lies and turned on Smart, and the state's failure to present their agreements with Randall and Pierce.
Smart also appealed her sentence, which she alleged was cruel and unusual, because the teenagers who pulled the trigger would be released from prison before her.
The court heard the appeal in the Rockingham County Courtroom June 12, 1997, for which Smart was transported from the prison in Bedford, N.Y. to personally hear the outcome of the petition.
According to attorney Michael Schneider, the venue was changed from New York to New Hampshire and tried there in federal court because New York wasn't the correct jurisdiction for the appeal.
Smart Tries to Reach into Federal Court:
After the writ of habeas corpus was denied, Smart was without a lawyer and tried to petition the U.S. First Circuit of Appeals for counsel in 2000. When her request was denied, she represented herself before the U.S. First Circuit Court of Appeals to petition federal intervention in her case, according to the Wojas family.
In October 2002 the U.S. District Court rejected Smart's appeal.
For appeals, the right to an attorney is only given for "Death Row" cases, and after her petition was denied, she was willing to file paperwork herself - Smart has a master's degree in criminal justice - when Sisti and Boston lawyer Michael Schneider stepped in.
Steven MacAuliffe, who became the judge on the appeal, said that Smart's case did not require federal intervention, and that her appeal arguments were very similar to previous attempts "except for a few minor stylistic changes" according to an Associated Press article on Oct. 25, 2002 that appeared in Foster's Daily Democrat.
"A federal court may not disturb a state conviction unless the state court's adjudication resulted in a decision that was contrary to or involved an unreasonable application of, clearly established federal law," MacAuliffe wrote in his ruling.
Michael Schneider, an appellate attorney from Boston, was approached by the Smart family after the MacAuliffe appeal. "I continue to believe… I still have major concerns of the case," said Schneider.
Schneider, who previously worked as an associate to Alan Dershowitz during the O.J. Simpson trial, said he didn't know Dershowitz considered taking on Smart's motion for a re-trial.
Schneider had issues with Smart's earlier appeals because they didn't challenge the legitimacy of her guilt, and said he wanted to bring up the possibility of her innocence.
"I've always been troubled by the case," said Schneider, adding that the matters of concern to him include the pre-trial publicity, issues over the teens being cellmates and having communication, how Smart was prepared for trial, and the Flynn jailhouse letter.
Schneider said that Smart's financial statements "looked more incriminating than it did" and could have hurt her in trial, including withdrawals and money from her late husband, Greg Smart's life insurance policies. Smart had two insurance policies, one had already paid out $90,000 and Smart had been waiting for the additional $50,000 according to court testimony.
Sisti and Schneider, who was retained in early 2003, then filed an appeal to a three-judge U.S. Court of Appeals for the First Circuit in April 2004, which held up MacAuliffe's ruling in June 2004. The three judges that served on the case were Judge Juan Torruella, Judge Sandra Lynch and Judge Kermit Lipez.
Schneider and Sisti filed an immediate petition to have all 12 First Circuit justices hear her case on an appeals panel May 28, 2004, which was not heard.
Twice Pamela Smart has approached the U.S. Supreme Court.
After her Schneider appeal and petition were denied, Chicago attorneys Greg Adamski and Karen Conti stepped in for Smart's next legal step.
"(My wife and I) have represented people who don't have any hope," said Adamski on his involvement with Smart.
Running out of options, Adamski made another attempt to get the Supreme Court, which includes Justice David Souter from New Hampshire, to hear the problems regarding Smart's original trial.
Adamski has been well-known and previously had a radio show for five years called "Chicago Law" on WJJD - Chicago and among his guests on the two hour weekly program were O.J. Simpson "Dream Team" attorneys Alan Dershowitz and Robert Shapiro.
Along with their background in broadcast radio, Adamski and Conti also teach a course covering the death penalty at the University of Illinois at Chicago. The two had previously represented serial killer John Wayne Gacy, who was convicted in murdering 33 young men and boys and executed in 1994.
Despite their involvement in other high profile cases, Adamski finds the Smart case to be a compelling one.
"There is so much misunderstood," said Adamski of the Smart case. "She shouldn't have been convicted."
Points that Adamski brought up included the publicity, which he called "stifling," the story that the teens told in their testimony of the events of the crime, and the legality of the search warrant for the Cecelia Pierce wiretaps.
"The boys lied about who pulled the trigger," said Adamski, who claimed the Derry Police didn't like their original story and changed who the shooter was, from Patrick Randall to Billy Flynn.
Adamski said the story that the police gave would show that Greg Smart was shot in the front of the head, when in reality he was shot from behind.
"That's enough for reasonable doubt," said Adamski.
Sisti also voiced his doubts over who the real killer was.
"Of the three that were at the house with Greg Smart, only one of the three had the cold, steely make-up to execute someone with a firearm. That would be Patrick Randall," said Sisti. "Randall has perjured himself. Flynn had perjured himself, then the love motive isn't as powerful. Love triangle plays better in court, plays out better in the media. Sometimes the truth comes out a million ways when dealing with the truth. I don't think the jury heard the truth."
"I don't understand understand why Bill Flynn and Patrick Randall would lie about it," said Maggiotto, before describing Randall as "a little more cold-blooded of the two."
As for the argument over the wire tap search warrant, Adamski claimed that it was a situation where they either didn't have one or had an illegal search warrant.
According to Sisti, the Attorney General's office can approve a one-party intercept without a judge's order.
Adamski said he also believed that Smart hurt her own case by contacting the press, and not appearing contrite after the death of her husband.
"She acted in a way that she shouldn't [have been] acting" as a standard for what society believes a mourning widow should appear. He compared her case to Scott Peterson, where he said there was hardly any evidence, but Peterson's demeanor put him in prison.
In fact, Smart's lack of emotional teary testimony proved damaging to her case.
Sisti said Smart hurt herself in the second day of cross-examination, by appearing as a completely different person in front of the jury.
"Sisti's strategy was not to put her on (the stand). Pam begged, Sisti caved," said Wojas.
Schneider said he felt "how Pam was prepared for trial" as another problem in her original trial.
"(On the) second day of cross-examination, she fell into a number of traps... the telling point was when she was given the opportunity to explain...it was too much... she was given a lot of rope... she felt too much in control," said Sisti of Smart's behavior on the stand.
In autumn of 2004 Adamski and Conti filed a writ of certiorari to have the U.S. Supreme Court hear Smart's appeal, which was denied.
Smart's Last Chance -- Commutation:
Smart's last appeal was filed in 2004 by Adamski for petitioning commutation. Governor John Lynch, a Democrat who took office in January 2005, agreed to hear the petition in July 2005. In the hearing with the Executive Council, Smart's mother Linda Wojas requested to speak but was denied, and the Council voted to reject the commutation request, which would have commuted the rest of her life imprisonment sentence.
The earliest Smart can re-file a commutation request would be with the next governorship, which could be as soon as 2007.
One cause for rejecting the request was that Smart has never shown remorse or responsibility for her role in the murder. Smart still maintains her innocence in the crime.
"I don't believe it was timely for her to file," said Sisti, adding that her main argument of an unfair sentence would only work when Flynn and Randallwere out of prison.
Adamski said he didn't think it was an injustice that her clemency request was denied.
"Time has to pass," he said, adding that the process takes a while and usually isn't granted on the petitioner's first request.
Adamski said that he is currently retained as Smart's lawyer, and is working on a lawsuit regarding an attack at Bedford Hills Correctional Facility eight years ago.
Smart's Dead End:
As of October 2005, Smart said she has no lawyer and no money for her defense. A defense fund was set up early on in her appeals to help pay for her legal fees. Smart lamented over how much money her appeals have cost her, and how it could have affected her outcome.
For example, Smart said it would have cost her $15,000 to have the tapes from the Cecelia Pierce examined by an expert, something she, nor her middle class family, can afford.
In early reports of Smart's appeals, a defense fund was mentioned to help aid her legal fees. When the Wojas family was asked the status of the fund today, Linda Wojas wrote via email on Jan. 7, 2006, "People who donate to her defense fund wish to be anonymous and we respect that wish."
"If I were like Martha Stewart or O.J. Simpson, who knows?" said Smart.
Sisti said that he is still involved with Smart as a client, and is waiting for events to happen so he can help file more motions in the future. He wouldn't elaborate on what he would file or what he is waiting for, only saying that it would be announced.
Smart said in an exclusive prison interview that the public is fickle and that they either want to save or persecute.
"The media put her in jail, the media will have to get her out," is what Smart told Adamski, and he said he believes it. "She shouldn't have been convicted."
However, despite the time that has passed since the original trial and the arguments that have been brought up in her numerous appeals, Maggiotto is still convinced of her guilt. "I don't think she'll ever get out of jail. For 15 years she's been living a lie," said Maggiotto.
The case has brought up questions on whether a conspirator should be sentenced longer than the actual killer.
© Copyright 2007 Keene Equinox