What bothers you about the Frank Lee Smith case?

There are three problems. First, you had outrageous police misconduct, in which they suggested the answer to eyewitnesses. Two, you have suggestible eyewitnesses. And three, you have terrible mistakes being made by the trial court, in which evidence which ought to have been introduced to clear him was kept out.

And there is no physical evidence. There's no blood, there's no hair, there's no fiber. This case stands on eyewitness testimony, none of whom actually witnessed the crime or claim to witness Frank Lee Smith committing one.

How is it possible that a citizen of the United States can be sentenced to death and there's no evidence against him? The single explanation in this case seems to be race. And it seems to be race is this wild card, which introduces an element of irrationality and emotion to what should be an objective process.

How do you feel this case might have been handled if it involved a white suspect instead of a black one?

Well, [if he had been white] it's hard to believe he would have been arrested. There's no physical evidence when it came to the crime. In fact, the police essentially suggest the evidence to the eyewitnesses -- a woman named Chiquita Lowe, who saw a man outside of the house at the time of the murder. She's not sure how he looks. They bring her in and she makes a composite sketch with another guy who allegedly saw the same guy. The composite sketch that looks like a guy named Eddie Lee Mosley. The police know Eddie Lee Mosley, but they don't focus on that; they focus on a guy named Frank Lee Smith, and tell Chiquita Lowe, "Well, look, these two other witnesses have already identified him [Smith]. Why don't you?"

She identifies Frank Lee Smith after she's already been assured that she has other people supporting her. She says she's under pressure from the community and from the police -- pressure to make this identification. Police are telling her, suggesting to her, [that] this is the man. She does, in effect, what the police tell her to do. ...

So you're saying there is no reason for Frank Smith to have been arrested?

There's no conceivable reason. No rational explanation. Let's go through the witnesses. Chiquita Lowe says she saw the guy, but she looks at the photograph and she can't identify, she's unsure. The police say, "Well, these other two people, Gerald Davis and Miss McGriff, have already identified him.

Gerald Davis says he saw a guy. But he couldn't remember what he looks like, and the police suggest to him what he looks like. At one point, they realize that he gives identification without a scar. And the police later come back and suggest that the guy had a scar, and he goes with their suggestion.

Now let's look at the other woman, Miss McGriff. She claims she never saw the man's face. Now, what kind of eyewitness is this who doesn't see the man's face? She identifies him by his shoulder. She doesn't see his face. So the prosecutor goes to trial with one witness who's never saw the guy's face, another witness who says flat out, "I can't remember what he looks like," and a third witness who only picks out the defendant after the police suggest who the defendant is. That's their case. ...

Consider this, as well: When they did the lineup, the police are so sure he did it, they structure a lineup a certain way. Frank Lee Smith is the oldest and the tallest person in the lineup. Who is going to seem the most threatening, especially to a teenage girl like Chiquita Lowe? Would the court, the prosecutor, the judge, be so cavalier, be so careless, if the person were white?

Stereotypes are very powerful things. Our stereotype of a criminal is a person with a black face who looks like Willie Horton. That is our image of crime.

I think the race cuts in many ways. In other words, why is this investigation so slipshod? Why is it that the prosecutors are asleep when they review this case? Why is it that the judge does not allow even time for a doctor to testify that Frank Lee Smith is legally blind, can't see without glasses, and yet supposedly commits a crime? And the person identified by the key witness said the person wasn't wearing glasses.

How can all of these mistakes and travesties of justice occur and converge in one case, unless it is that we don't care whether we're being efficient or sloppy, we don't care whether or not this person's guilty or innocent? And in fact, I think one of the problems we have when blacks are involved is that it's not really that we're afraid that they may have committed this crime, but that we're afraid of them -- period. It's that fear of them, based on who they are that anchors an otherwise unanchored case. This case had no anchor. It wasn't grounded in the facts. It wasn't grounded in anything.

Why didn't the police ever look into Eddie Lee Mosley as a suspect?

It's impossible to know. But one possible explanation is the police want a case that they can prove. Dickens writes a story called "Bleak House," in which he says, "It's better to hang the wrong feller than hang no feller."

If the police don't find someone, people are going to lose their jobs. Why not find a patsy? Why not create a conviction? It doesn't matter so much whether the person's guilty -- what's important is that we get a conviction. Now, if that kind of thinking goes on -- which is dangerous, which is insidious, but it does go on -- then who are you going to pick? You pick the most vulnerable, the most powerless person that you can. Someone who doesn't matter. And the only way I can explain this is that Frank Lee Smith didn't matter. He was expendable.

In what ways was the police work so slipshod?

"Slipshod" may be too kind a word. The police did not follow leads. They knew about Eddie Lee Mosley. The composite sketch that was made by Gerald Davis and Chiquita Lowe matched Mosley far more than it matched Frank Lee Smith. They did not pursue this.

A second way in which it was slipshod, or dishonest, was when Gerald Davis tells them, "I don't remember what the guy looked like," they shouldn't have proceeded with him as an eyewitness. Again, when he identifies a person as not having a scar, it was wrong for them to suggest to them that he did. When Chiquita Lowe said she's unsure about a photographic lineup, it was wrong for the police to say, "Well, two other witnesses have identified him, why don't you?"

It was also wrong for the prosecutor, who must have known this, to present this as a case to the court. They knew that there was police misconduct. They knew that their eyewitness testimony was shaky, but they went forward anyway -- all impelled by this inertia of a need to solve the case.

What are your thoughts on Chiquita Lowe and how she eventually identified Eddie Lee Mosley, not Frank Lee Smith, as the person she saw that night?

One of the most powerful things that happens in this case is the recanting of Chiquita Lowe. Here is their chief witness that the state says was the central witness, the linchpin of the whole case. She recants and says, "No, the composite sketch that I made earlier doesn't fit Frank Lee Smith. It fits Mosley."

And the police still fail to act. ... Mosley had a similar modus operandi. His modus operandi was a focus on black women, to use a piece of the clothing, to kill them very often in strangulation. ... He fit the composite. Chiquita Lowe recants and says this [Mosley] is the guy. And the system -- because it doesn't seem to want to admit an error -- would rather have this innocent person stay in prison than to conduct a new investigation. That should also disturb us.

And what about the issue of the third lineup?

One of the features of this case which makes life stranger than fiction is that the police seemed to be engaged in an effort to persuade the eyewitness, who wants to recant her story and is trying to recant, that there is evidence, producing a third lineup 10 years later, to try to achieve a result which was a travesty of justice to begin with.

So it's a very tangled case, isnt' it?

Yes, yes. This case is incredibly tangled. It's tangled first because the police do things which, and I want to say it frankly, seem to be criminal in the way they have mishandled the evidence and the way they have suggested answers to it.

I think it's tangled in the sense that there are also connections between the witnesses the police picked and the person who most likely committed the crime, Eddie Lee Mosley. Apparently, there is a familial relationship between the mother [of the victim], Miss McGriff, and Mr. Mosley, which may explain why she would not remember his face, or not be able to, or not want to cooperate with identifying him. And I think that it just becomes tangled in that the mother, who in a sense is a victim, may be complicit in the railroading of this innocent man.

But -- consciously?

Consciously? We don't know that. What we do know is that this is a case where the police, the prosecutor, should have known that this case is far more complicated than the one they presented to the jury. And the jury should have known these facts. The jury should have been able to sort of roll this around in their mouths.

They don't get that evidence. What they see is essentially a story that is largely concocted.

But the police say she would have known him.

Yes, I think that is interesting. There seems to be a false assumption at the bottom of this case. If someone is my cousin, first of all, I may not want to cooperate. Secondly, even if I want to cooperate, psychologically I have a disability in terms of pointing the finger at someone that I love. I don't want to see that.

People remember what they want to remember and fail to remember what is convenient for them to fail to remember. And so, when she says she never saw his face, it's an interesting question: Was it that she didn't see his face or she didn't want to remember? And so it becomes a psychological drama in many ways, a drama that has several levels to it. And unfortunately, the police didn't explore it, and the jury never got to explore it.

What about the state's decision denying that the DNA be tested -- a test which could possibly prove Frank Lee Smith's innocence?

The prosecutor argues that [the defense] waited too long, [that] they should have asked for the test earlier. And so the denial is based explicitly on the idea that there was delay on behalf of his attorneys. I remember we used to study in criminal procedure cases something called a "star chamber." And in the court of the star chamber, the Tudor kings would present their enemies to be sent to the gaol. And often what would happen is that people were convicted, not because they were guilty, but because the lawyers would make a mistake, or alleged to make a mistake.

This case is like a star chamber kind of story. In other words, this is a person who is not given the one test that could have proved his innocence 14 years ago. And [this decision] is done because his lawyers have not done something. Now, that's a weak answer to a person who spends 14 years in jail for a crime he hasn't done. Something is wrong with that. And I think it's an indictment of our system that we are so cavalier in the way we sentence people to death, that we are so slipshod, that we do seem to have an assembly line system.

The issue is, however, that legally the state could decline [to do] the DNA testing.

Well, law is always an effort to balance. And you're balancing the rights of the defendant against the rights of the state. That balance occurs in the context where you have to decide how much resources -- ... our money, our time -- are we going to spend on a particular case. And one of the things that strikes me about this case is they decided not to spend much time, much money and much resources -- anything. It's as though this person's life wasn't worth time; it wasn't worth checking; it wasn't worth this extra step.

... I think what we're witnessing is a bureaucratization of the process of a criminal trial. So no longer is it a human life we're thinking about; it's just a case. We're just moving prosecutors around and they're doing the job as if they're simply dealing with inanimate objects, as if we're talking about ordering light bulbs or something. We don't need these extra light bulbs; we don't need to put a molding on the house.

I mean, this is a person's life -- and you don't need to check the DNA? This is a person who could be sentenced to death and you don't need to check this evidence? What makes them so sure?

The prosecutor who later came into this case, during the judicial reviews, said she was shocked when DNA testing indicated that Frank Lee Smith was innocent.

Yes, but I think that the shock is only because when you're running an assembly line, you assume that each part in assembly is interchangeable. And we assume that the police know what they're doing, and have done it properly and so forth. To some extent, there's this worldview that the sky is blue, there are no clouds in it, the police don't engage in misconduct, witnesses are going to tell the truth.

Those kinds of things need to be tested -- tested rigorously. The prosecutor's supposed to represent not the victim, but the people. They're supposed to be above it all and look for the truth. This prosecutor didn't look. She didn't look, and probably didn't care to look. She just assumed.

... The prosecutor sent this person to death on the basis of speculation. They speculated at the expense of this person's life. You have to prove two things as a prosecutor: motive and opportunity. Now, they put him at the general scene of the crime, in the vicinity of the crime, but no more so than Gerald Davis, [and] no more so than the mother of the victim.

And it's hard to understand what is it that makes him the murderer any more than the rest of them, unless it is his peculiar status as someone who is powerless -- someone who is terribly vulnerable.

And had a record. ...

And had a record and vulnerable to a criminal charge. But this was a tissue of assumptions built on speculation, built on police misconduct, that never was grounded in facts, objectivity.

But in the end, DNA exonerated Frank Lee Smith. There are those who say, "The system worked."

Just imagine that Frank Smith is alive and he's sitting here. And he spent the last 15 years of his life in a prison for a crime he didn't commit, based on evidence which was weak, if nonexistent, to begin with; based on a case which was tampered with by police with their suggestions and false assumptions about his guilt.

Could we say to Frank Smith, after all the time he spent in prison for this crime he didn't commit, "Well, the system worked"? Could you say that to his family? Could you say that to the other Frank Lee Smiths -- and I'm sure there are many who have yet to have their DNA tested -- and their convictions rest on questionable eyewitness testimony as well?

I think that there's no way for us to congratulate ourselves. This is no time for trumpets. This is a time for reflection. It's a time for reform. We have to make sure that there aren't any more Frank Lee Smiths. ...

To return, again, to the issue of race in all this, ... what are your finals thoughts there?

... Black men make up 6 percent of the population, but 46 percent of the U.S. prison system. ... They are disproportionately arrested, disproportionately sentenced to death. We have a drug war in which 60 percent of the kids using marijuana, for example, [are] in the suburbs, but the overwhelming effort is focused in inner city. In a context like that, I think we have to say that race is a serious problem in our system. And it's not merely one that comes from the problem of the personal hates of the person who's ignorant.

Race seems to have been in our culture tied into our idea of crime, tied into our idea of drugs, tied into our idea of whatever it is we're afraid of when we think about crime. I think that because it is so pervasive as an image that it infects white actors and black actors as well. I think that it is very difficult for a black man to get a fair trial in our present context, when the stereotype of a criminal is black.

Do you think the criminal justice system might benefit from the lessons from the Frank Lee Smith story?

I think that Frank Lee Smith is a warning. It says that there is something desperately wrong that we need to attend to. And we need to look closely at what we're doing when we sentence people to death -- whether the procedures are in place to make sure that the evidence is being tested properly; that prosecutors are themselves looking at what happened, and trying to insure and guarantee that the evidence, and not police misconduct, is the reason why a person is sitting in the defendant's seat. We need to rethink what we're doing. We need reform.

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