Cases of egregious prosecutorial misconduct and convicts being removed from death row in North Carolina have become so commonplace that they barely warrant space on the front page of the “News & Observer.” In Tuesday, November 25, 2008 edition of that newspaper, the article “Judge’s order moves man off death row” barely made the front page, beneath the fold at the bottom of the page. The two articles deemed more newsworthy and that occupied the headlines above the fold were: “Food donations fail to meet greater need,” and an AP article titled, “Boldly hewing to the center: Obama’s team is flexible, not radical.”
Ten years ago, a Halifax County jury sentenced Clinton Cebert Smith to death for allegedly poisoning his own daughter. His attorneys say that Smith, who can’t read or write, is severely retarded, with an IQ of 70, or below, and could not have dreamed up or carried out the plan to poison his daughter and others. Furthermore his attorneys state that the ruling to remove Smith from execution is another sign of his innocence. They contend that evidence has been hidden by the prosecutors from the defense, that an important prosecution witness gave inconsistent testimony, and that the initial defense team offered inadequate representation.
An expert witness, toxicologist Darrell Sumner of Wake Forest University faxed a letter to the original Halifax County prosecutor W. Robert Caudle II, in which he stated that he did not believe that there was sufficient poison to cause illness, much less death in the Smith case. Prosecutor Caudle withheld this exculpatory evidence from the defense team before and during Smith’s trial.
Special Deputy Attorney General Valerie Spaulding, who must have gotten IQ mixed up with GPA, states that Smith has borderline intellectual functioning. With a GPA, a score of 70 is a C average grade, however, that same score is equivalent to severe retardation when applied to an IQ score.
Like other recent cases of prosecutorial misconduct where prosecutors withheld exculpatory evidence from defense attorneys, I do not expect the North Carolina State Bar or attorney general to take any action against them. In fact, they will go to extremes to protect them because the defendants they prosecuted were disenfranchised, of color, and/or retarded, unlike the Duke Lacrosse case where three students from families of wealth, status, and privilege faced charges by Durham prosecutor Mike Nifong. (Take, for example, the Floyd Brown case. He was held for 14 years without a trial, on a charge that was based on a false and fabricated confession attributed to Brown by the prosecutors.)
So, where is the justice when former Durham District Attorney Mike Nifong is disbarred for allegedly withholding non-exculpatory evidence (unidentified male DNA found in a rape kit) that had absolutely no relevance in the Duke Lacrosse case?
State Superior Court Judge John R. Jolly, Jr. should be commended for doing the right thing and removing Mr. Smith from death row. It is high time that Attorney General Roy Cooper and the North Carolina State Bar do the right thing and re-instate Mike Nifong’s license to practice law, without restrictions, in the state of North Carolina. A heart-felt apology to Mr. Nifong would also be appropriate.