By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
After Lowe's recantation, Scheff contradicted himself in a 1991 court hearing, saying he had shown Mosley's picture to the witness back in 1986. This testimony discredited Lowe and helped make sure Smith didn't get a new trial or the DNA tests he was seeking to clear his name.
Later, during a hearing in 1998, Scheff produced in court the alleged Mosley lineup he'd shown Lowe. Again, Smith was denied justice.
When, in 2000, DNA tests posthumously vindicated Smith and proved that Mosley was Whitehead's killer, Scheff came under fire for the contradictions concerning the lineup, prompting Gov. Jeb Bush to order a perjury investigation. Special prosecutor Lawrence Mirman interviewed Scheff, who told the prosecutor that he couldn't really remember whether he showed Lowe the lineup or not. In July 2001, Mirman found there was "reasonable suspicion" that Scheff had committed perjury but concluded that there wasn't enough evidence to charge him with a crime.
Fast-forward to this month's trial of Keen, who Scheff had arrested back in 1984 for drowning his wife at sea. Keen was convicted, but the case still had so many problems that last week he was back in court for the fourth time. The judge in the Keen trial, Paul Backman, determined that the Smith case was relevant to Keen's defense and allowed the defendant (who was acting as his own attorney) to question Scheff on the stand about the false conviction.
"Have you ever helped put an innocent man on death row?" Keen asked Scheff.
"I've never helped put anyone on death row," the captain replied. "I've simply come into court and answered questions... and unfortunately in [the Smith case], it had an awful outcome."
Interesting answer, kind of like a Nazi death camp director saying he never killed anyone but just went to work and made sure the line proceeded in an orderly fashion toward the building with the big smokestack.
Last week, Scheff again testified that he had shown the Mosley lineup to Lowe during the 1986 trial. Apparently his memory has improved since last year, when he told Mirman he couldn't recall. Scheff testified that he answered "no" instead of "yes" during Smith's trial because he was confused by the defense attorney's "compound question."
At one point, he laughed on the stand and said, "I didn't realize how big a production this would all be."
I hear you, captain. Gosh, who'da thunk Smith would be exonerated after dying in prison?
He also told Keen and the jury: "You are aware of the fact that [Smith] would have been in prison anyway."
Here, Scheff is regenerating a callous and false theory, put forward by the governor and Sheriff Ken Jenne, that Smith would have been sent back to prison. The theory hinges on the fact that when Smith was apprehended in his aunt's front yard on suspicion that he had killed Whitehead, he had a knife with him. BSO charged Smith with carrying a concealed weapon -- which also served as a convenient reason to hold him for questioning. His aunt, Bertha Mae Irving, says Smith and her family were about to go fishing. Regardless of the circumstances, it's ludicrous to assume this minor offense would have led to a lifetime in prison, but the theory serves a purpose for Scheff and other authorities: It makes the horrible miscarriage of justice seem incidental.
Scheff also swore during the Keen trial that Smith had indeed made incriminating statements that were crucial in securing the conviction. Scheff and Tom Carney, who is now the number two man at BSO under Jenne, lied to Smith, saying that Whitehead's brother saw the killer. Smith allegedly replied: "There was no way he could have seen me; it was too dark."
It's a strange thing for an innocent man to say. But Charles Morton, who prosecuted Keen and has worked with Scheff on numerous homicide cases, seemed to make the issue go away in last week's trial. Isn't it true, Morton asked Scheff, that Mirman, during his perjury investigation, found that Smith had "under oath in fact said he made those statements?"
Scheff answered in the affirmative.
Although Keen didn't challenge this exchange, it is utterly false. Mirman never made such a finding, and Smith, during his trial, twice denied making the statements. So I asked Morton about it; he led me to a single footnote in the Mirman report, which said that Smith had testified during the 1986 trial that his statement "it was too dark" was taken out of context by Scheff.
"If it was taken out of context, that means he [Smith] must have said it," Morton explained.
An interesting lawyer's trick, but it's still not true. Although Smith did say that his words were taken out of context, he never admitted saying anything. According to the 1986 trial transcript, when asked point-blank if he said "it was 'too dark,'" Smith unambiguously answered, "No."
Still, last week's jury heard otherwise, a fact that might give Keen some ammunition for a fifth trial (he was convicted again August 8). Worse, even after robbing Smith of his dignity and leaving him to die horribly in prison, Scheff is putting damning and false words in the innocent man's mouth to make himself look better.