Smithson is convicted of the 2006 strangulation death of coworker Jason Shephard inside Smithson’s home.
Advocates for Smithson say there’s no direct evidence linking him to Shephard’s murder.
They claim Smithson’s second-degree murder conviction was due largely to homophobia and that police failed to investigate F. Bruce Covington, who was inside Smithson’s home when Shephard died.
But authorities say Smithson administered the date-rape drug gamma hydroxybutyric acid, or GHB, to Shephard and tried to rape him prior to strangling him.
Covington was convicted of drug-related charges stemming from the incident, but prosecutors say he wasn’t Shephard’s killer.
Covington couldn’t be reached for comment.
Delaware County Common Pleas Judge Barry C. Dozor must decide if a new trial for Smithson is warranted.
Smithson contends his trial attorney, G. Guy Smith, served him ineffectively.
Smithson alleges Smith failed to ensure Smithson’s right to confront a serologist and DNA specialist who participated in the case; failed to properly investigate Covington; failed to cross-examine witness Dan Hall about his substance-abuse issues; and improperly had a state trooper read statements by Covington to jurors.
But in a Nov. 22 court filing, prosecutor William Toal 3d said Smith served Smithson adequately.
“[Smithson] has failed to demonstrate that trial counsel lacked sound strategic reasons for the alleged errors or omissions which [Smithson] claimed were instances of ineffective assistance,” the filing states.
In addition, it also states that Smith made a reasonable decision to not call the serologist and DNA specialist as witnesses.
If Smith had called those witnesses, it would have brought more attention to evidence damaging to Smithson, according to the filing.
Hall, a former lover of Smithson, recently died. Hall allegedly told police that Smithson admitted getting into a struggle with Shephard prior to his death.
Hall also allegedly said that Smithson fantasized about drugging straight men and having his way with them sexually.
But police lost their tape recording of Hall’s interview, and Smithson denies making the statements that Hall allegedly attributed to him.
Smithson says Smith should have questioned Hall about his substance-abuse issues, to cast doubt on Hall’s credibility.
But Toal’s filing states that Smith made a reasonable decision to not challenge Hall’s credibility.
“Mr. Smith was concerned, based upon his own knowledge from conversations with Mr. Hall and from conversations with [Smithson], that an attempt to cross-examine Mr. Hall to discredit him would backfire, that Mr. Hall would appear to be more credible and would likely say something even more damaging to [Smithson] in the process,” the filing states.
Covington declined to testify at Smithson’s trial, citing his fifth-amendment right to not incriminate himself.
But he gave statements to police, and Toal’s filing states that Smith made a reasonable decision to allow a state trooper to read those statements to jurors.
“Discovering a significant amount of evidence about Bruce Covington but not being able to put it before the jury was a very real problem, and yet Mr. Smith was largely able to overcome that problem [through the trooper’s participation],” Toal’s filing states.
For his part, Smithson says he was heavily drugged by Covington, and passed out while Shephard was still alive. He claims that when he woke up the next morning, still groggy from the drugs, he discovered Shephard’s corpse in his home, panicked and tried to cover up the situation.
Smithson, 48, remains incarcerated at the state prison in Huntingdon.
Rob Nardello, an advocate for Smithson, expressed hope for a new trial.
“Why don’t prosecutors want to re-examine what really happened that night?” Nardello posed. “Why do they keep looking at Dan Hall’s statements, when he wasn’t even there that night? Then they cover for Covington, who gave two conflicting statements that included lies to investigators.”
A decision by Dozor is expected within the next few months.