Attorneys for William F. Smithson have filed an appellate brief in state Superior Court, seeking to overturn his first-degree murder conviction and gain a new trial for him.
Smithson, 44, was convicted of the strangulation death of Jason Shephard in December 2008. He was sentenced to life imprisonment by Delaware County Common Pleas Judge Barry C. Dozor.
The 60-page appeal, filed Aug. 7, states that Dozor erred in permitting the use of evidence yielded by four search warrants because the original warrants have since disappeared, and there is a question about the accuracy of their photocopies.
The prosecution alleged Smithson strangled Shephard, 23, a coworker, during the course of trying to rape him after slipping him the date-rape drug gamma hydroxybutyrate.
However, a third man, F. Bruce Covington, was also inside Smithson’s Thornbury home during the September 2006 homicide. Smithson’s supporters contend that Covington’s actions that evening haven’t been adequately investigated.
Smithson’s appellate brief addresses technical points preserved for appeal by his trial attorneys.
The appeal focuses on four missing search warrants that neither the Delaware County District Attorney’s Office nor the Delaware County Office of Judicial Support could supply exact duplicates of.
According to the appeal, Dozor should have required more precise evidence of the warrants’ authenticity rather than relying on duplicates that both sides agree are not exact replicas of the originals.
The photocopies of the documents in question were missing important details, including affiant signatures on four probable-cause affidavits that accompanied the search warrants, according to the appeal.
The photocopies of the probable-cause affidavits also are missing dates and court seals that the originals would have contained, according to the appeal.
The warrants in question yielded evidence found in Smithson’s home and van, along with information contained in Smithson’s cell phone, according to the appeal.
But the photocopies of the four probable-cause affidavits were “generic” in nature, and did not explain the need for searching Smithson’s van or cell phone, according to the appeal.
“These warrants were based on a mere suspicion that contraband could be found in the cell phone and the van,” the appeal states. “That was clearly insufficient to find probable cause.”
In 2006, Common Pleas Judge Chad F. Kenney allegedly permitted the issuance of the search warrants in question. Kenney also allowed the search warrants to be sealed from public view, and did not retain photocopies of theese documents, according to Smithson’s appeal.
Officials at the District Attorney’s Office and the Delaware County Office of Judicial Support couldn’t explain how the originals got lost, nor could they precisely explain the procedures used to create the photocopies, according to Smithson’s appeal.
“Clearly the tortuous procedures used with these warrants should have precluded [Dozor] from having any confidence in the authenticity of the originals and it was grossly unfair to allow the Commonwealth to use copies,” the appeal states.
The appeal also states that Dozor erred in ruling Smithson needed to show “bad faith” on the part of authorities when they lost the warrants and probable-cause affidavits in order to suppress the evidence yielded by the warrants.
Under Pennsylvania’s Rules of Criminal Procedures, Smithson only needed to show that it was unfair for Dozor to accept the photocopies as accurate representations of the originals when better evidence could have been used, according to the appeal.
Rob Nardello, an advocate for Smithson, said he’s hoping the appeal will result in a new trial.
“I hope this appeal will be successful,” Nardello said. “But if it isn’t, that’s not the end. Fortunately, Bill will have the opportunity to file more comprehensive appeals in the future. I’m just hoping that a higher court will be thorough enough to look into what happened and order a new trial for Bill.”
Tim Cwiek can be reached at (215) 625-8501 ext. 208.