Forget too that before Smith was wrongfully sentenced to death in 1986, he wept, begging the judge and jury for mercy and swearing he would never, ever hurt a little girl. Ignore that he was still sent to death row for a crime he didn't commit and went completely insane in prison. And forget that he received scant medical attention during his bout with cancer and died in an isolation chamber, strapped to a prison gurney, dehydrated, far from those who loved him.
What really matters is that Smith had a bad past that included two homicides while he was a teenager. He belonged in prison.
Richard Scheff, now a Broward Sheriff's Office captain, says so.
"Regardless of whether [Frank Lee Smith] was responsible for the murder of Shandra Whitehead or not, he was really a dangerous guy," Scheff told me. "I think he was a dangerous guy. He had certainly killed two other people."
Then he laughed and added, "I mean, how many people do you have to kill before you forfeit your freedom?"
And there it was. Many people had suspected it, but he said it. Smith, before he was sentenced to death in 1986, already knew Scheff saw him as a throwaway defendant. "My past seems to follow me wherever I go," Smith said in court, "and now it has got me sitting here for something I haven't done."
Jeff Walsh, a defense investigator who worked years to exonerate Smith, has long said that Scheff targeted Smith because his criminal past made him an easy sell to a jury. "That is the truest thing he's ever said in his life," Walsh says of Scheff's remarks. "That is the Frank Lee Smith case in a nutshell. BSO was the judge, jury, and executioner in that case. He was convicted on his past, and that is how Scheff operates. He's a rogue cop."
It's the first time Scheff has ever said anything publicly about Smith since DNA tests exonerated him of Whitehead's murder in December 2000, 11 months after he died in prison at age 52. Scheff remained silent until last Tuesday, when he was compelled to testify about the case during the high-profile murder trial of Michael Scott Keen, whom Scheff also helped send to death row. Afterward, I questioned the captain outside the courtroom.
"The man was strange," Scheff said of Smith. "I mean, I could never figure him out. I couldn't tell if he was stupid and trying to pretend like he was smart or smart and trying to pretend like" -- he pauses here before continuing -- "to tell you the truth, I always thought he was trying to manipulate me. I had this feeling like he was trying to handle me.... He should have been honest with me -- or kept his mouth shut."
I had to excuse myself at this point to reach down and pick my lower jaw up off the floor. Talk about strange. As I described in a news story more than a year ago ("Captain of Deceit," July 26, 2001), it was Scheff who manipulated the murder case to fit Smith and who apparently lied in court to keep Smith behind bars. According to Smith's testimony, it was Scheff who badgered Smith into talking to him and refused to let him get a lawyer.
It is true, however, that Smith wasn't normal. Small wonder. His parents were murdered in separate incidents, and his early childhood was spent in and out of foster care and abusive family situations. When he was a little boy, a bottle was broken on his head during a street riot, damaging his brain and permanently distorting his vision. He suffered from schizophrenia and paranoid delusions. Throw in his violent youth, the two homicides, and 15 years in prison and you have the perfect fall guy for a murder.
Scheff orchestrated the case against Smith with the skill of a Tchaikovsky. The key controversies surrounding Scheff's actions involve an alleged confession by Smith and contradictory testimony the captain has given about whether he showed a photo lineup that included the actual killer, Mosley, to the key witness.
Scheff got witness Chiquita Lowe to identify Smith at the 1986 trial as the man she'd seen on the street near Whitehead's house the night of the murder. Scheff testified at the trial that he never showed her a picture of Mosley, whom he had ruled out as a suspect because Whitehead's mother was his cousin and insisted he wouldn't have hurt her daughter.
He should have shown her that picture. Lowe recanted her identification of Smith in 1989 after being shown a photo of Mosley and realizing he was the man. She also said that she never really believed Smith was the killer and that Scheff and prosecutor William Dimitrouleas (now a federal judge) pressured her to lie in court.
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."
Oops.
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.
Scheff at least admitted to Keen that he had made incorrect assumptions in Smith's case. Outside the courtroom, however, he brought up another dubious theory designed to explain the failure of the justice system: Smith might have been at Whitehead's house and tried to steal a TV set right after Mosley killed her. "If that is true," Scheff said, "it certainly bodes well for me. But for that to have occurred, it would have had to be a huge coincidence, so I'm uncomfortable with it."
But later, as I followed Scheff down the hall to the courthouse elevator, he told me, "[Smith] had to have been there." He didn't elaborate. Then Scheff said of his investigation of Smith: "I stepped on my dick and made a mistake."
If Scheff's railroading of Smith wasn't intentional, it was certainly an auspicious mistake: The Smith arrest won Scheff "Deputy of the Month" honors and began his fast climb up the BSO ladder. Sheriff Jenne apparently has forgiven Scheff his mistakes -- he promoted him to commander of countywide operations just last year.
So Scheff has apparently overcome his shameful past. It's a crime that he wouldn't let Smith do the same.
