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On Nov. 8, Russell Tucker got what, on death row, is good news. The North Carolina Supreme Court reinstated an appeal from the convicted murderer a month before he was sentenced to die. For that Tucker can thank David B. Smith, his defense lawyer — but not because Smith filed a winning brief or destroyed the state’s case in front of the judges. Instead, Smith, who worked as a prosecutor for 18 years, got the reinstatement after he confessed that he had sabotaged Tucker’s case because he wanted him to die. “I decided that Tucker deserved to die, and I would not do anything to prevent his execution,” the advocate wrote in an affidavit, filed in Forsyth County Superior Court as part of the request to revive the appeal — eight days after being notified of his client’s Dec. 7 date with death. Smith, a sole practitioner, had turned on Tucker while he was reviewing disturbing evidence that supported charges that Tucker had shot security guard Maurice Travone Williams in 1994 in a Winston-Salem, N.C., Kmart parking lot. Shaken by the awfulness of the crime, Smith began playing dumb and disorganized while working on the case, hoping to passively sink Tucker’s post-conviction efforts. The court-appointed lawyer canceled and missed meetings with his co-counsel, W. Steven Allen. When Allen misinterpreted and thus missed a summer deadline for filing a key appeal, Smith said nothing. The lawyer, who says he has been overwhelmed by depression because of his betrayal and also not sleeping well, disliked his client from their first meeting, at North Carolina Central Prison. He had split up tasks with his co-counsel. Smith’s work included reviewing the evidence, including autopsy photos that particularly turned him against Tucker. Tucker, 34, was convicted by a jury in February 1996 of having shot Williams after being asked to produce a receipt for a coat and boots. His trial lawyers hadn’t asked for investigators or evidentiary hearings. They tried an unsuccessful appeal, arguing for a new trial based on alleged errors and abuse of discretion by the judge. They yielded to Smith and Allen, whose appellate effort to present new evidence flopped this past May. Then the two attorneys — one knowingly — missed the July 11 deadline for appealing to the state’s highest court. When Smith first had a change of heart, he tried to aid Allen without revealing his perfidy. He had a work meeting with Allen set for Oct. 24, at the nonprofit North Carolina Center for Death Penalty Litigation, in Durham. Before Allen arrived, Smith buttonholed three staff attorneys of the center, saying he needed to tell them a few things. He made his startling confession in a sure voice, recalled one attorney, Gretchen Engel: “He said, ‘Some of the things that changed my views about the death penalty … one of them was Russell Tucker and the other was the Oklahoma City bombing.’ We were like, um, that doesn’t sound good.” He told them he should have withdrawn. ” ‘I realize that Russell Tucker deserves an attorney who fights for him and not an agent provocateur for the state,’ ” Engel recalled him saying. He sounded despondent, she remembered. “He made a couple of references [like], ‘I need to give you an affidavit because I might not be here,’ ” Engel said. Later, he said, ” ‘Russell Tucker has a longer life span than I do.’ “ Despite Smith’s admission, the state attorney general opposed Tucker’s request for the court to hear his plea, arguing that Tucker has no constitutional right to effective appellate counsel. SYMPATHETIC BEGINNINGS Smith, 52, started out his career with Legal Aid, origins that might have made him a sympathetic defender. But he then worked as a state and federal prosecutor for 18 years, rising to Chief of Narcotics in the U.S. Attorney’s Office in Winston-Salem. He wore the white hat well and methodically, said A. Wayne Harrison, who opposed Smith often on drug cases. “He obviously gloried in building a box around an accused,” he said. In 1996, Smith left the prosecutor’s world and opened a private practice as a criminal defense lawyer. Smith’s belated confession could sink his new practice as well as his reputation. Smith said he reported his righteous betrayal to disciplinary overseers at the North Carolina Bar Association. A spokeswoman at the bar declined comment about what the bar might do to Smith. Smith would not talk to NLJ about the case’s specifics, saying only: “I’ve done Russell Tucker enough damage as it is, and I don’t need to do any more.” REACTION Ken Rose, director of the Durham center, sees Smith’s conduct as “clearly unethical” and deserving of disciplinary review. But Stephen Dear, director of People of Faith Against the Death Penalty, argues that Smith shouldn’t be disbarred, given his courage in coming forward. David Freedman, a lawyer friend of Smith’s who advised him when he first set up his practice, agreed: “He’s put himself on the line for this scumbucket.” Smith can’t explain why he didn’t opt to withdraw from the case. “I have not been able to come up with an answer for that,” he said. “If I did, I could save myself a lot of money with a therapist. That’s one of the things that is, you know, most troubling about it.” Passing judgment, he says, was not something he did with other clients: “When you’re dealing with people at a trial level, you develop a relationship with them.” But in handling an appeal, he found he couldn’t relate to Tucker. “I think [Smith] has a prosecutorial personality,” Harrison said. When Smith aspired to be a lawyer in childhood and in law school, he wasn’t set on being a prosecutor. “Just a trial attorney,” he said. In court, Allen defended Smith’s work as uncharacteristic and occurring amidst other stress in his life. Smith had prosecuted two second-degree murder cases but had never before worked on a capital case or on post-conviction capital appeals. At a hearing Nov. 6, Smith asked to be removed from the case. But the judge ruled he didn’t have jurisdiction. “He said to David, ‘I guess you’re still on this case,’ ” Rose recalled. The supreme court may need to consider how much damage Smith’s sabotage caused, given that Smith was in charge of reviewing the transcript, the state’s evidence and witness interviews. Tucker’s good news would seem to run out there. At press time, Tucker had yet to receive a stay of execution.

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