A Sorry Excuse

Ken Jenne's department helped convict the wrong man. Why won't he and Jeb Bush admit it?

When Broward County Sheriff Ken Jenne apologized to Jerry Frank Townsend on June 7 in the county jail, it was a media event. Jenne had what he called a "warm conversation" with Townsend, who is mildly retarded and spent 22 years in prison after sheriff's investigators cajoled him into confessing to a string of murders he didn't commit. After his apology the sheriff had a talk with reporters. "It was time for someone to step up and look Mr. Townsend in the eye and say... we regret it and we were wrong," Jenne said.

But Jenne isn't stepping up in the case of Frank Lee Smith, who, if it's possible, was more deeply wronged by the Broward Sheriff's Office than Townsend. Although Townsend went free last month, Smith died in prison last year. BSO investigators concocted a case against Smith in 1985 for the rape and murder of an eight-year-old girl named Shandra Whitehead. Sentenced to death in 1986, Smith spent 14 years on Death Row, where family members say he lost his mind. For much of that time, judges refused his lawyers' efforts to have DNA tests done on the evidence. The tests, which were completed only after Smith's death from cancer, proved he was innocent of the crime. Another man, rapist and serial killer Eddie Lee Mosley, murdered Shandra, the tests found.

Since Smith's posthumous vindication, his family hasn't heard a word from Jenne or any other BSO official. Smith's relatives spent years railing against the justice system. They knew he couldn't have done it because his aunt, Bertha Mae Irving, and a few of his cousins were with him the night of the murder. But nobody -- not BSO detectives, prosecutors, or jurors -- believed Smith's family. Irving watched helplessly as they sentenced her nephew to the electric chair. "Why don't they apologize?" asks Irving, who grew up with Smith. "They said they were sorry to the other man; why can't they say they are sorry to us?"

Although Frank Lee Smith was innocent of murder, he died in prison awaiting execution. Now officials are 'ducking blame.
Bertha Mae Irving
Although Frank Lee Smith was innocent of murder, he died in prison awaiting execution. Now officials are 'ducking blame.

Jenne is silent on the issue. He refused to comment about it to New Times. But his spokeswoman, Cheryl Stopnick, offers this explanation for the sheriff's apparent omission of contrition: "Smith would have died in prison anyway, just not on Death Row," she says. "He was found carrying a concealed weapon, and that was a violation of parole that would have landed him in prison anyway. Frank Lee Smith would not have walked out of jail as a free man like Jerry Frank Townsend."

No harm, no foul.

Stopnick isn't the only government official to use such reasoning. Representatives of the Florida Attorney General's office, headed by long-time Jenne ally Bob Butterworth, have voiced the same opinion, as have state prosecutors and Gov. Jeb Bush's office and general counsel. But some close to the Smith case say the contention is a lie to shield officials from accountability. "It's a blatant attempt to cover up a terrible, terrible tragedy," says Jeff Walsh, a private investigator who spent years trying to prove Smith was innocent. "Jenne owes this man's family an apology, and his failure to do so is pure arrogance."

On April 18, 1985, a case of mistaken identity and some very aggressive police work landed Smith behind bars. Acting on a tip that Smith matched the description of a suspect in Shandra's murder, BSO Lt. Philip McCann found Smith in the front yard of his northwest Fort Lauderdale home. McCann drew his gun on the suspect and cuffed him on the ground.

Deputies, however, did not immediately arrest Smith for the murder (which had occurred four days earlier), because there wasn't probable cause. McCann instead charged him with carrying a concealed weapon. The lieutenant wrote in his arrest report that Smith had a knife with a seven-inch blade hidden in his waistband, under his shirt.

What McCann didn't note was that, at the time of his arrest, Smith was with his aunt and her young children, and that they were preparing to go fishing. The knife, says Irving, was for cutting bait and didn't even belong to Smith. Fishing poles, sinkers, and buckets were also present in the yard. Irving, who watched as McCann aimed his gun at her nephew's head, is adamant the knife wasn't concealed but was visible jutting from his front pocket.

Andrew Washor, Smith's trial attorney, says he considered the arrest bogus from the beginning. Smith, Washor posits, was a perfect fall guy for the crime. Convicted in 1966 for a murder he committed during a robbery, Smith was on parole at the time. "It was basically B.S.," says Washor. "They needed a reason to bring him in for questioning, and the knife was it."

Neither Smith nor his lawyers ever challenged the weapons charge in court, however. Instead it was virtually forgotten. In May 1986, about four months after he was sentenced to death, Smith, with no media attention, pleaded guilty to a misdemeanor charge for the knife and was sentenced to 30 days in jail, a meaningless penalty, because he was already on Death Row.

Rory McMahon, who spent 17 years working as a parole officer, says that assuming Smith would have gone to prison for a fishing knife he was carrying in his own yard is preposterous. "If it had been found out he was falsely arrested for the murder, [prosecutors] would have dismissed the weapons charge in return for him not suing the sheriff's office," says McMahon, now a private investigator working in Fort Lauderdale. "That's what would have happened in a real-life case."

Washor concurs. "It's ridiculous for anybody to even try to say that he would have been in prison without the murder," contends the attorney. "Saying that is almost as asinine as the state denying him DNA tests for all those years."

Government officials, however, are making the claim over and over again. The source of the myth, however, is hard to trace. Roger Maas, executive director of the Florida Commission on Capital Cases, testified before a state senate committee in January that Smith "probably" would have been confined to prison anyway, because of the weapons charge. Maas told the senators he had heard the theory from a former parole commissioner. He now concedes it was speculation. "If there was no murder attached to it, then he may have defended the weapons charge and won," Maas says.

Carolyn Snurkowski, an assistant deputy attorney general who reviewed the Smith case, wrote a letter in January to Broward prosecutors saying the Department of Corrections and the governor's office had "confirmed" that Smith "likely would have been incarcerated" at the time of his death without the murder conviction. Snurkowski, who heads the attorney general's criminal appellate division, is now retreating from that stance, saying it was based on secondhand information. "It wasn't anything I went out and investigated myself," she says.

Bush spokeswoman Liz Hirst said the weapons charge "absolutely did qualify Smith to return to prison, and that could have been up to life" but refused to elaborate.

All these officials, complains Bertha Mae Irving, are simply "trying to cover their own asses.... These people don't have a heart.... They are a bunch of lowlife, lying, thieving SOBs."

Walsh says he too is angry. The private investigator was Smith's last visitor. "The man was naked, wasted away to skin and bones, in a tremendous amount of pain," Walsh recalls. "His hands were strapped to the side of the hospital gurney. There was no evidence of medical equipment or medication in the room, which was locked with two guards standing watch outside."

Smith died a week later, ending years of unspeakable misery.

"It's one of the most devastating things I've ever seen. It bothers me today," Walsh says. "I watched this man deteriorate through the years. They took away his brain and his sense of sanity in addition to his freedom. Sometimes I try to think what it must have been like, and it's unimaginable.

"They aren't going to send a man to prison for the rest of his life for fishing. But even if they would have, Jenne needs to apologize, because this man spent 14 years thinking they were going to strap him in an electric chair. Frank lived in hell."

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