November 24, 2000

Lawyer Sabotaged Case of a Client on Death Row

By SARA RIMER

There have been defense lawyers in death-penalty cases who slept during trial and others who showed up drunk, but Russell Tucker's lawyer went one worse: Appointed by a North Carolina court to represent Mr. Tucker in post-conviction proceedings, he sabotaged the case by deliberately missing a deadline for filing an appeal of the sentence.

 "I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution," the lawyer, David B. Smith of Greensboro, N.C., said in a recent court affidavit, filed as part of a motion in which he and his co-counsel, W. Steven Allen, asked for an extension of the deadline and to be taken off the case. With the deadline missed, the State of North Carolina set an execution date of Dec. 7 for Mr. Tucker, who has been on death row for four years for the murder of a Kmart security guard. The execution is expected to be postponed, because Mr. Tucker has exhausted neither his federal appeals nor, as a result of a State Supreme Court ruling two weeks ago excusing the deadline lapse, his state appeals.

Mr. Smith, a highly respected lawyer and former assistant United States attorney who has generally opposed the death penalty, said in the affidavit that his inaction had left him so depressed that he had begun seeing a therapist. He declined to be interviewed, but said in a brief telephone conversation that his affidavit was an effort "to rectify the situation.

" His conduct has puzzled other lawyers familiar with his work, and is the talk of legal circles in North Carolina.

"This is as bad as it gets in a capital case," said one lawyer, Ken Rose, director of the Center for Death Penalty Litigation in Durham, N.C., which has become involved in the Tucker case. "He violated one of the most fundamental ideas of being a lawyer and representing a client," Mr. Rose said, "and that is to work on behalf of your client. He worked to try to kill his client." Mr. Rose, added, however that Mr. Smith had shown courage in acknowledging what he had done, "at the risk of losing his law license.

" Carolin Bakewell, an attorney for the North Carolina State Bar, would not comment on Mr. Smith or whether any disciplinary action would be taken against him.

Mr. Smith, a graduate of the University of North Carolina law school, has been licensed to practice law in North Carolina since 1973. He was an assistant district attorney in Greensboro for 3 years and an assistant United States attorney there for 18. He has been in private practice since 1997, although the Tucker case is the only death row appeal he has ever handled.

 "He was generally considered the best trial lawyer" among the federal prosecutors in Greensboro, said David Freedman, a criminal defense lawyer in nearby Winston-Salem who tried a number of cases against Mr. Smith. "He would take on the most complex cases." "Clearly he's an extremely ethical lawyer and a very zealous lawyer," Mr. Freedman added.

Appointed to post-trial representation of Mr. Tucker in February 1998, Mr. Smith and Mr. Allen, also of Greensboro, met with their new client on death row in Raleigh soon afterward.

 "At the end of the visit," Mr. Smith said in his affidavit, "I decided that I did not like Mr. Tucker," who had been convicted of killing the security guard, Maurice Travone Williams, with a gunshot to the chest after Mr. Williams had caught him shoplifting. "My own beliefs against capital punishment were severely challenged as I read the trial transcripts in preparation for post-conviction relief," Mr. Smith continued. e came to believe, he said, "that Mr. Tucker should be executed."

 "I shared with my therapist my feelings and the consequences of my inaction," he said, "but I could not bring myself to act in a professional and responsible manner." He did not share his feelings with Mr. Allen, a former state judge who, like Mr. Smith, was working on his first death row appeal. Mr. Allen did not return several telephone calls to his office. But in his own affidavit he acknowledged his share of responsibility for the missed deadline, telling the court that he had misunderstood the rules, that he had thought he and Mr. Smith had more time to file the appeal and that he had been extremely busy with other cases then. "Counsel was working seven days a week," Mr. Allen said, "with very little sleep." On Oct. 16, Mr. Smith received a copy of a letter from the office of the North Carolina attorney general directing the State Correction Department to set an execution date for Mr. Tucker. The letter, Mr. Smith said in his affidavit, "made me face the fact that I had been an agent of the state, seeking to have Mr. Tucker executed rather than ethically protecting his constitutional and statutory interest." A week later, meeting with lawyers at the Center for Death Penalty Litigation to discuss Mr. Tucker's case, Mr. Smith volunteered that he was deeply depressed because of what he had done. "He said, `The only person I've told this to is my therapist, and the therapist suggested I discuss it with you all,' " Mr. Rose recalled.

 Although the State Supreme Court granted the request to extend the appeal deadline, it has not yet ruled on whether Mr. Smith and Mr. Allen will be removed from the case, as they have asked, and new lawyers for Mr. Tucker appointed.

The legal position of the attorney general's office has been thatMr. Tucker had no constitutional right either to "effectiveassistance of counsel" or to "conflict-free" counsel and that plansfor his execution should proceed. Ruffin Poole, a spokesman for the office, declined to comment.