Lowe also insisted detectives never showed her a photograph of Mosley, suggesting Scheff had told the truth during trial about the lineup. But in a 1991 hearing that dealt with Lowe's recantation, Scheff dropped a bombshell. He testified he had shown a photo lineup including Mosley to the witness. In effect the deputy was admitting he had lied during the 1986 trial. He explained it by saying he must have been confused by lawyers' banter while he was on the stand. Confusion, however, doesn't account for the fact that there was no Mosley lineup presented at trial. The lineup also was absent from the BSO file given to Smith's lawyers. Even the man who prosecuted Smith, William Dimitrouleas, now a federal judge, has testified that he never saw it.
"[Scheff's] motive [at the 1991 hearing] was to show that you can't believe Chiquita Lowe," McClain says. "They wanted to shake her credibility. It was all geared to make her look bad."
It wasn't until 1998, during another hearing in Smith's case, that Scheff actually brought the mysterious Mosley photo lineup to court. He testified that it had been in the BSO's Smith file all along and stated confidently that he remembered showing it to the witness.
Apparently the judges found Scheff more believable than Lowe -- Smith was never awarded a new trial.
Perhaps Scheff's most incredible sworn statement came during his deposition by Mirman, the special prosecutor. Sitting in the office of his private attorney, David Bogenschutz, Scheff again managed to contradict himself, according to a transcript of the sworn interview obtained by New Times. In a key exchange, Mirman asked Scheff if he remembered showing the Mosley lineup to Lowe:
Scheff: "I... I... I cannot honestly at this point, it's... it's almost sixteen years, tell th... what... now, I can't, I can't... okay, I'm sorry I'm just..."
Mirman: "Take your time.... We realize you're nervous."
Scheff: "No I'm... it... it... it's not, it's not nerves, it's... it's anger.... Um, I do not, I cannot say that I have some distinct personal clear memory that I showed this lineup to Chiquita Lowe."
At another point in the interview, his memory seemed to improve. He said he would be willing to wager "dollars to doughnuts" that he had shown Lowe the Mosley lineup. But in the end Scheff remarked, "Who the hell can remember this stuff?"
Scheff's admission that he couldn't remember, McClain argues, is a confession that the detective lied during past hearings. But Mirman places all of Scheff's untrue statements and contradictions in the same category: unfortunate mistakes. "It's not enough that someone gives false testimony," Mirman explains. "They have to knowingly give false testimony, and there is a difference between saying something that is incorrect and lying."
Mirman admits that Scheff's crisscrossing statements over the years make the truth impossible to discern. But the special prosecutor decided one thing: Lowe, in large part due to the fact that she'd identified the wrong man at trial, wasn't credible. Mirman made no such judgment about Scheff. Instead he tells New Times that Scheff's position as a BSO captain gave him an "air of weight and credibility" that worked in his favor.
Mirman devised a theory to explain Smith's wrongful conviction; he believes Smith, by sheer coincidence, was outside the Whitehead house trying to steal a television set after Mosley committed the murder. The scenario explains why Shandra's mother, who apparently caught a glimpse of the killer fleeing as she arrived home, identified Smith at trial (though she admitted seeing only the man's shoulders as he ran away). "It's the explanation that includes the least amount of conflict," Mirman says. "How else can you explain it?"
Walsh, the private investigator, has another idea. Scheff staked his reputation on the fact that Smith committed the murder, and he was willing to say almost anything to ensure the conviction. Walsh accuses Mirman of smearing Smith by insinuating he tried to steal the TV. (Several relatives have always maintained Smith was with them the entire night of the murder.) "Mirman is perpetuating the injustice to Smith and Smith's family," Walsh says.
McClain argues the Mirman theory also deflects criticism from the justice system, which he contends failed miserably in the Smith case. The lawyer saves his harshest criticism for the deputy who led the charge against his hapless client. "Scheff is like a charlatan," McClain says. "He divines who committed a crime, and then he makes it so."
