Associated Press

Friday, March 31, 2006

Judge throws out Ky. sodomy conviction


COVINGTON, Ky. -- A judge threw out the conviction of a man after he spent five years in prison on charges of sodomizing his teenage daughter, who had claimed repressed memories of a childhood attack.

Judge Patricia Summe found that Timothy Smith might well have been acquitted if his lawyer had challenged a prosecution expert who had backed up Katie Smith's story.

Wednesday's ruling did not determine Smith's guilt or innocence, however, and prosecutors could appeal it or choose to retry him. He remained in prison Friday.

Smith, 51, had maintained his innocence and his other daughters denied any abuse, but the case stood until last year, when new interest was sparked by Katie Smith's death in a knife fight with a pregnant woman. A reporter began looking into the sodomy case, leading to an investigation by a lawyer and the state's Innocence Project.

"There's a light at the end of the tunnel, and I will be able to spend time with my kids, and that's the thing I miss the most," Smith told WLWT-TV of Cincinnati on Thursday. "I still love Katie even with what she did. I realize she was disturbed."

Katie Smith was 17 when she made the allegations against her father in 2000.

At trial a year later, nurse Kim Wolfe testified that the teenager was telling the truth and was suffering from repressed memory syndrome, a psychological theory that has since been discredited.

Defense attorney Michael Lutes presented no rebuttal witnesses, and Smith was sentenced to 20 years in prison. Lutes acknowledged later that he was unaware of a Supreme Court ruling that would have let him challenged Wolfe's credentials.

Lutes did not immediately return a message seeking comment Friday.

"It has been a terrible time," said Smith, who has spent five years at Eastern Kentucky Correctional Complex in West Liberty. "I always believed that eventually I would get out. I was concerned about how long it would take. I'm still concerned about how long it'll take."

His case drew new attention in 2005, after police said Katie Smith, who was by then 22 and faking pregnancy, lured Sarah Brady, who was nine months pregnant, to her Fort Mitchell apartment by saying she had received some of Brady's baby gifts by accident. Smith attacked Brady with a knife, but Brady retrieved the knife and turned it on Smith. Police concluded she acted in self-defense.

Intrigued by the case, WLWT-TV reporter David Wagner examined Smith's sodomy conviction and interviewed a critic of repressed memory syndrome. The expert, in turn, described the case to Chicago lawyer Patrick Lamb, who took on Smith's case and involved the Kentucky Innocence Project, a unit of the state Department of Public Advocacy.

The new attorneys found that Wolfe, the expert witness, had exaggerated her credentials at trial, in part by referring to herself as a doctor when she had obtained her doctorate from an unaccredited online school.

Summe said in her ruling that Lutes' failure to hire a rebuttal expert and "allowing the commonwealth's expert to go virtually unchallenged" was "outside the range of acceptable trial practice."

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