Sunday, October 5, 2008

Requiem For Frank Lee Smith

'Requiem For Frank Lee Smith'
With Ofra Bikel Producer, "Frontline"
Friday, April 12, 2002; 11 a.m. EDT

In December 2000, after spending fourteen years on Florida's Death Row, Frank Lee Smith was finally cleared of the rape and murder of 8-year-old Shandra Whitehead. Like nearly 100 prisoners before him, Smith's exoneration came as a result of sophisticated DNA testing unavailable when he was first convicted. But for Frank Lee Smith, the good news came too late:
Ten months before he was proven innocent, Smith died of cancer in prison, just steps away from Florida's electric chair.

How did Frank Lee Smith end up on Death Row for a crime he didn't commit? And why was he allowed to die there despite possible evidence of his innocence? In FRONTLINE's "Requiem for Frank Lee Smith," airing on PBS Thursday, April 11, at 9 p.m. EDT on PBS (check local listings), award-winning producer Ofra Bikel explores these and other questions. She was online Friday, April 12.

The transcript follows.

Bikel is known for looking at the U.S. criminal justice system and has a hand in the exoneration of the defendants/convicts she reports on. She was online in January to talk about her film, "An Ordinary Crime," and her 1999 documentary "The Case for Innocence" profiled several men whose claims of innocence seemed to have been confirmed by DNA testing of trial evidence but who remained in jail. They were eventually set free, as were all of the defendants in the Little Rascals Day Care trial, whom she profiled in her "Innocence Lost" trilogy. The series, which included "Innocence Lost" (1991), "Innocence Lost: The Verdict" (1993), and "Innocence Lost: The Plea" (1997), won awards including an Emmy, two duPont-Columbia Silver Batons and a duPont-Columbia Gold Baton.

Editor's Note: moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Oxford, Miss.: Ms. Bikel,
I have just watched your outstanding documentary on Frank Lee Smith. I am outraged at the uncaring and careless attitude of the prosecutors and of Detective Scheff. They had already condemned Smith because of his past and for them to be more worried about how they would look if Smith were innocent than to save someone from one of the most horrible and cruel deaths imaginable makes me literally physically ill. These people are subhuman and the scum of the earth! Thank you for exposing them. It's too bad Smith's aunt can't sue them individually. Florida isn't to blame, the individual prosecutors are. They decided to ignore the DNA issue. As for Ms. Lowe, I can understand she was under a great deal of pressure, but she didn't take into account that a person's life was a stake. At 19, she was old enough to speak up.
Ofra Bikel: I agree with what you say about Ms. Lowe -- you can imagine that when the police think that they have one eyewitness, and this girl was 19, scared, and they told her look, we absolutely know he did it. We need you.

Can you imagine the pressure on her? That's exactly what they said to her. And so she did.
Even today she's a very soft-spoken, soft-hearted woman. And she was so young.
The crazy thing is that even if it were him, whoever she saw, it was a half hour before the murder when she saw him. She never saw him commit the murder, she never saw him go into this house, so it was peculiar how they got him in the first place.

Arlington, Va.: I was absolutely stunned that these judges and the prosecutor completely disregarded Chiquita Lowe's recantation. Even if they thought she might be lying, the evidence in the case overall seemed so flimsy. ID'ing someone based on his shoulders? I realize her testimony was the key to the case, but I can't believe that even if they didn't believe her the second time around that the case itself didn't smell funny to people who were prosecuting.
Ofra Bikel: I couldn't agree more. It's shocking. And part of the reason I wanted to do this, because I just couldn't understand how they could do this -- keep him in prison, saying she was lying. Why would she lie?

Washington, D.C.: Did you find Chiquita Lowe credible when you interviewed her? What was your sense of her veracity?

Ofra Bikel: I found her very credible. When she first came to see me, she made a very long trip. She was crying, she was so unhappy, she felt so guilty. She was so horrified, because she was so mistreated by the police. She said "they treated me like a queen" the first time. And the second time "they treated me like garbage." It was horrible.

The strange thing is that of all the people involved, she was the only one who took responsibility. Not the detective, who probably lied, not the prosecutors who didn't use DNA testing because they didn't have to. Nobody feels as bad as she does.

San Diego, Calif.: I found the attitude of the prosecutors you interviewed horrendous, especially with respect to the procedural default issue. Did you interview either of them after DNA exonerated Mr. Smith? If so, how did they feel about all their hard work to execute an innocent man?

Ofra Bikel: It varied. Caroline [McCann], the assistant D.A., said she was shocked. She said it never occurred to her that he might be innocent. And Silvershein still maintains that Chiquita did see Frank Lee Smith even though Frank Lee Smith didn't kill the little girl, that it's possible he was there to steal a television set. So he's not exactly trying to atone for what happened. McCann was more shocked. Why she was shocked, I don't know.

The letter was very odd, because it came to us from the sheriffs office saying that it seems to us that Ms. Bikel was under the wrong impression that if the DNA test had been conducted when Frank Lee Smith was alive he would have been released. But because they found a knife on him 14 years ago when he was arrested, which violated his parole, they might have moved him from death row, but they would not have let him out of prison. I found it the most callous thing I ever heard. My only interpretation is that they don't want the anti-death penalty people to say they executed him. Nobody wants to say that somebody has been executed by mistake. So they say he would have died in prison anyway, even if there had been the DNA test. It was a callous, awful letter.

Washington, D.C.: I support the Innocence Protection Act, federal legislation which would guarantee all offenders (not just those on death row) access to DNA testing, and would also create national standards for defense attorneys who are allowed to defend people facing a possible sentence of death. I know death penalty states around the country have begun to reform their broken capital punishment systems already. What have you found to be the most grievous areas of the death penalty system (areas that federal and state legislation could address) in your filmmaking?

Ofra Bikel: It's incredible that after it was known that Frank Lee Smith was innocent and did not get a DNA test, the law has been changed to the point where no one who pleads guilty can get a DNA test. So today Townsend would be in prison -- didn't matter that he didn't do it. The new "sunshine" law says that from the moment you are convicted, you have two years to file for DNA testing. Barry Scheck says it takes four years to get a DNA test. It's a step back. So Frank Lee Smith couldn't have gotten his DNA test today.

DNA is just one element because it's so scientific and because you can say this person is excluded, it's a sure-fire way to rebut someone's guilt. But think of all the people who didn't have DNA testing. Whenever a witness recants, they can say she's lying. The fight for DNA testing is the only thing we have so far that's scientific, that is sure. And they're fighting that. If DNA doesn't do it, nothing will. The whole thing is egregious.

Burke, Va.: I am an undergraduate student at George Mason University who, with nine other students, undertook an exhaustive study of three capital cases gone awry in the fall 2001 semester. One of these cases was the Frank Lee Smith Case. I was curious to hear your opinions about the virtual conspiracy on the parts of Richard Scheff, Paul Zacks, and Judge Richard Tyson to keep Smith in prison. As well, your thoughts on the fact that Scheff is still a detective in good standing despite his perjured testimony?

Ofra Bikel: When the judge denied the hearing, the prosecution wrote the draft. It took eight years to vacate the order. So another judge inherited it. It's cheating. It's called ex parte communication.

On Scheff, I think very bad thoughts. It shows me that the thin blue line is doing very well in Florida. They're not going to convict one of their own.

It was a whitewash. He got a slap on the wrist. And no reasonable person should take comfort in his staying on the job. And his colleagues have been involved in other questionable cases. There are many.

Phoenix, Ariz.: How can we contact his relative about donating a marble headstone for Mr. Lee?

Ofra Bikel: Chiquita Lowe's address: 3380 NW 30th St. #5, Lauderdale Lakes, FL 33309
Gardena, Calif.: I would like to know if this story will air on the major network channels like ABC, NBC and CBS? I think once this story gets out to these stations then the whole world will see how ugly the death penalty can be.

Did Chiquita ever apologize to Mr. Smith's family member Bertha? If not, then she should do so; and also Bertha should sue the state of Florida for wrongful imprisonment and wrongful death of her cousin.
Did Mr. Smith get any kind of cancer treatment while in prison?

Ofra Bikel: The major stations are not interested.

She did apologize. Bertha did sue.
He got very very very bad treatment. Tied to a guerney, he didn't have enough water, didn't have enough medication, he was alone, he was surrounded by people who hated him, screaming in agony. Still hoping that the DNA would set him free.

Bethesda, Md.: What was your impression of the detective who suddenly "remembered" a third photo lineup including a picture of Eddie Lee Mosley? And did you find the comments about the age of the photos of Eddie Lee Mosley -- that the one Chiquita Lowe recognized was taken five years before the crime and the one taken the year before didn't match -- to be convincing?

Ofra Bikel: Not really. To me, when I see pictures that look as though they're a twin of another person, I don't ask when it was taken. The eye in the sketch drooped, the eye in the photo drooped. Kevin Allen, the policeman who knew him very very well, said it was him. He said nobody ever showed it to him. And in the end, it was Mosley. I found it nonsensical; the guy looked so much like the composite. I stayed with the prosecutors a total of three hours and I got a letter of total indignation. I said please answer my questions -- don't keep going around over and over and over.

I would have answered this accusation if the DNA didn't come out the way it did. But it looked like him, it was him. I want to know why they fought so hard to say it wasn't Mosley. They couldn't convict him because it was always sending him to mental institutions. It was easier to convict Frank Lee Smith than it was to convict Mosley.

Washington, D.C.: The person I found most touching was Shandra's brother. To hear about how this terrible event still haunts his life was just terrible. That's no way to live. Has anyone ever offered counseling to her family? To any of the people involved? His wife seemed like a great person, but that alone's just not enough if he's still waking up in the night thinking of this.
Ofra Bikel: I agree. His wife is wonderful, and I don't know what he would have done without her. She's just terrific.

He said he was on the sofa watching television with his sister a half hour before. How did he get into bed? He doesn't know how he got into bed.

College Park, Md.: The only surprising thing in this case is that people are surprised. The legal system is geared to convict somebody, anybody, for crimes that shock the public. It gets votes for officials and judges (in states that elect them) and makes celebrities out of the participants in the case. Suspects are drawn from a group that can be easily convicted (poor, minority, less educated, etc.) and the show begins.

What fundamental changes can we make to prevent this version of showtime justice?

Ofra Bikel: You're right. More people need to ask questions. More people need to insist for the vulnerable people who live in America that when a crime is committed that they're not automatically on the list of suspects.

The police actually lie an awful lot. And they think they know who is guilty, and they will manufacture any evidence. They tell you they will never indict an innocent person. It's like the end justifies the means -- we know he's guilty, and we'll get him however we can.
It starts first with the public fear of crime. Who ever talks about rehabilitation? It's punishment -- we'll punish them, they deserve. In one of the reviews [of the program], it said it was almost like a perverse justice -- he wasn't an innocent man. He'd committed a murder before, and he wasn't innocent. How do you stop thinking like that? You're polluting the system.

Hampton Roads, Va.: On forensics -- if the police had a semen or other fluid sample -- did they not even consider a blood type match, which was available then?

Ofra Bikel: There was semen, there wasn't blood type. They didn't even give him DNA when there was blood. They weren't into the fine points; they didn't think they needed it.
Capitol Hill, Washington, D.C.: I did not see the program. Did the prosecutors or the detectives ever give you a reason why they did not want to do a DNA analysis? I think it should be routine in any murder case and mandatory in capital punishment cases.

Ofra Bikel: Because they realized they won the case without it, so why use it? The assistant DA said when Chiquita Lowe wasn't impressive (the second time), they thought why do they need it?
Arlington, Va.: I'm interested in knowing your suggestions for forcing the media to pay more attention to prison/death penalty issues.

Ofra Bikel: The thing is that the people watch prefer to watch "The West Wing" and "Sex and the City," what can I say? If they really wanted to watch more, believe me, there would be more. It's sad; why should they? They don't want to watch. Television does what they think the audience wants. There's always this argument: are we supposed to give the audience what they want, or should we educate them? When there's a show on pornography on "Frontline," there are many more people watching.

Re: The tombstone question: You have no right to publish Mr. Smith's accuser's address when you were asked for his relative's address.

Ofra Bikel: It's Chiquita Lowe who asked sister's permission to put a headstone. She's looking to help pay for the headstone.

Washington, D.C.: My name's David Von Drehle. I wrote a book on the death penalty in Florida called "Among the Lowest of the Dead." It's worth pointing out that this case is not at all unusual. Your excellent work has been done over and over again, beginning with Gene Miller nearly forty years ago. And always the pattern of obstruction, name-calling and denial are the same.

Ofra Bikel: All I can do is point to the cases that are here now. I'm sure your book is very interesting. And it's not new; the public should know that.

Harrisburg, Pa.: There are sometimes difficulties with DNA evidence itself. Some laboratories are not as professional as others. There have been laboratories discovered to have 50 percent error rates, which makes one wonder if it would be just as accurate as flipping a coin. Thus, a scary proposition emerges: many innocent people are being convicted on inaccurate evidence, and many guilty people are being let free.

Some of us from where this question is being sent have been working on legislation to allow the state government to inspect and certify laboratories. This does not mean that an attorney or the police could not use an uncertified or out of state laboratory. Yet, it may be helpful for courts to know whether evidence has been analyzed by a laboratory that has been inspected and certified. Do you have any comments or suggestions regarding such legislation?

Ofra Bikel: I completely agree. If the prosecution has to agree to what lab the evidence is being sent to, then the lab should be supervised. Of course.

Washington, D.C.: Have anyone spoken to the real culprit in this-Mosley? Also, It was appalling in the letter sent to "Frontline" that the sheriff department would try to save face by stating that Mr. smith had a knife on him, therefore he would have remain in prison because it was in violation of his parole. Some nerve! after serving all that time for a crime he did not commit! I have had a long mistrust of prosecutors this case makes it even deeper. They are hell bent on convictions whether by hook or crook. All, I can say for the prosecutor and the detective (or should I say the racist low-down dirty dog) there is a higher power, we all have to someday, somehow give an account for our willful actions. As for Mr. Joel Sams of Kentucky, its racist rednecks like you that give America a bad name. I hope to God you're not in law enforcement or any other job that requires objectivity. Well done Ms. Bikel and Frontline. God bless.

Ofra Bikel: He's nutty. And he's wily. They've talked to him 100 times. He says he hasn't done anything. If you can get away with 60 rapes and a dozen murders, you're a very smart man.
And that letter was unbelievably galling. After all that, after the guy dies, they go to his little flag and ask forgiveness, they want me to tell the audience that the guy would have died in prison anyway. Completely galling.

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