Appeal was sabotaged, lawyer says
He represented Winston man on death row but wanted his client to be executed, he says

By John Hinton

Monroe, NC
November 3, 2000

An attorney representing a Winston-Salem man on death row says he undermined his client's appeals because he believed that his client should be executed.

Death-penalty opponents in North Carolina say that the lawyer's behavior is an example of the flaws in the state's capital-punishment system.

David B. Smith of Greensboro said in an affidavit that he intentionally didn't help his colleague file an appeal for Russell W. Tucker with the N.C. Supreme Court. Tucker is scheduled to die Dec. 7 in Central Prison in Raleigh. 

''I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution,'' Smith stated in the affidavit.

He declined to elaborate yesterday on why he changed his mind and admitted his deliberate inaction. ''It was something I had to do. I had to disclose that I had failed him,'' Smith said. ''I had to tell the truth, and that's not always an easy thing to do.''

Tucker, 34, was convicted of first-degree murder in the 1994 death of Maurice Travone Williams, a security guard at the Kmart on University Parkway in Winston-Salem. Tucker was accused of shooting Williams in the chest and abdomen after Williams tried to stop Tucker when he suspected Tucker of stealing clothes from the store.

Tucker also is serving time for second-degree murder and armed robbery in the shooting death of a Winston-Salem cab driver.

Smith's disclosure about Tucker's case came Wednesday when W. Steven Allen of Greensboro, Tucker's other attorney, asked Judge Larry Ford of Union County Superior Court to reconsider a decision to reject Tucker's appeal. Allen told Ford that the appeal should be allowed because Smith failed to work in Tucker's best interest. Allen also asked the court to appoint new defense lawyers.

Ford rejected Allen's motions, saying that it is up to the state Supreme Court to rule on them.

Allen said he plans to file his motion with the court today.

''This is a terrible situation that the courts, Mr. Smith and Mr. Tucker find themselves in,'' Allen said yesterday. ''Hopefully we will right this terrible wrong and get this case heard by the Supreme Court.''

Allen defended Smith's behavior, saying that it was uncharacteristic. ''He was sick at the time he was asked to accept this representation,'' Allen said. ''Mr. Smith is a very fine lawyer who was working under very difficult circumstances. He was put in the situation when his life was under a lot of stress, and he was not able to offer his usual level of legal representation.''

In his affidavit, Smith said he began to suffer from depression and insomnia after being assigned to represent Tucker.

Smith said he stands by his affidavit because he told the truth about his involvement in Tucker's case.

Smith and Allen were appointed to represent Tucker in his appeals in February 1998. Soon afterward, Smith said in his affidavit, he met with Tucker in prison and decided he didn't like him.

Smith wouldn't elaborate yesterday on what made him dislike Tucker.

Smith said that his beliefs opposing the death penalty were ''severely challenged'' when he read Tucker's trial transcript. ''I came to the belief that Mr. Tucker should be executed for his crimes,'' Smith said. ''I became more depressed with my inactions and the fact that I did not take the steps necessary to withdraw or to tell Allen that I was passively sabotaging Mr. Tucker's post-conviction recourse in state and federal court.''

Smith didn't withdraw from the case or share his views, the affidavit says. Instead, he helped Allen prepare their initial appeals motion. Ford denied that motion, leaving Smith and Allen with a 60-day deadline for appealing to the state Supreme Court.

But when Allen attempted to schedule times to work on the appeal, Smith said he would make excuses to avoid meeting or simply fail to show up, the affidavit says.

Tucker's execution date was set after his attorneys missed their filing deadline. Tucker's execution likely will be delayed because federal courts haven't heard his case.

A. Danielle Marquis, a special deputy attorney general, argued in a court brief that Smith's opinion that Tucker should die doesn't affect Tucker's conviction and death sentence. Opponents of the death penalty say that Tucker's life should be spared because of Smith's behavior.

''How can our state execute someone who had no real defense?'' asked Robert Mosteller, a law professor at Duke University. ''At a minimum, anyone facing the death penalty deserves a lawyer who is working zealously for him.''