In Capital Case, There Can Be No Doubts

By TOM JACKSON The Tampa Tribune

Published: Apr 24, 2008

Unlike John Paul Stevens, the U.S. Supreme Court justice over whom certain lefty commentators recently swooned, This Space retains a healthy respect for capital punishment as not only the best response to offenses that are notoriously grisly and outrageous, but also as sometimes the necessary resolution.

Stevens, in a concurring opinion that reinstated Kentucky's lethal-injection statute last week, nonetheless doubted the constitutionality of capital punishment. This earned the praise of cooing pundits such as the New York Times' Linda Greenhouse, who wrote admiringly about the 88-year-old's "culmination of a remarkable journey."

Her enthusiasm is not universally shared.

That said, the death chamber bar must be set dauntingly high, rising on twin stanchions of monstrous circumstance and unassailable evidence. Applying that test to the gruesome case of Lawrence Joey Smith, This Space finds that it agrees - reluctantly, but without rancor - with Judge Lynn Tepper's decision revealed Tuesday.

Rejecting the jury's recommendation for death, Tepper selected Door No. 2, life without parole. Although Tepper clearly chose the fail-safe route, she did not act out of timidity, but from the position of sacred duty incumbent with her robe.

Her reasons, multiple and not subtle, animated the conflicts in testimony and gaps in evidence that Smith claims would win him an acquittal if his 2001 conviction ever is overturned. If nothing else, Tepper's sentence gives Smith, bright enough to have turned himself into an exceptional jailhouse lawyer, a lifetime for petitioning courts of appeal.

The Court's Conscience, Shocked

Smith was convicted as the triggerman in the 1999 revenge shootings of teenage pals Robert Crawford and Stephen Tuttle, on orders from drug dealer Faunce Pearce.

Crawford died; Tuttle survived to provide a harrowing, if sketchy, eyewitness account. Tuttle was not, for instance, able to finger his shooter. That fell to other witnesses, Pearce associates Heath Brittingham and Teddy Butterfield, armed and present in the death car. For cooperating with authorities, neither was charged.

Tepper wouldn't have any of it. She doubted the pair's reliability, and decried the imbalance in accountability she was asked to codify. Brittingham and Butterfield, she said, were instrumental in the kidnapping. So, condemn Smith while two other henchmen skate? Not on her watch: The absence of "proportionality," she said, "shocks the conscience of this court."

Balancing The Scales

Back when Smith's guilt was yet undecided, these points all were jury questions. None inspired reasonable doubt. In a trial abounding with commentary from known liars and veteran ne'er-do-wells, forensic evidence was sufficient to corroborate the prosecution's narrative regarding Smith. Let's say there's a 98 percent chance the jury got it right.

But death sentences demand balance and a beyond-a-scintilla-of-doubt standard.

Tepper rightly discovered she couldn't get there.

Better to honor the 2 percent solution, the wisp of uncertainty that helps guard against a race to the point of no return. Even supporters of capital punishment should understand the wisdom contained therein.

Columnist Tom Jackson can be reached at (813) 948-4219.