Former prosecutor says Smith verdict fair

By April M. Silvaggio  

FEBRUARY 11, 2010 10:28 a.m. (0)

Lots of things about Tommy Pope have changed in the 15 years since he stood before a jury in the courtroom of the Union County Courthouse and asked that Susan Smith be sentenced to death.

He’s not a prosecutor anymore. That job belongs to Kevin Brackett, one of Pope’s former assistants.

Four years ago, he left the 16th Judicial Circuit and went into private practice as a partner in the Elrod Pope Law Firm in Rock Hill, focusing his energy on workers’ compensation and personal injury cases.

But occasionally, when a mother somewhere in America is accused of killing a child, his phone will ring. It’ll be some cable news show host like Nancy Grace or Larry King, asking him to weigh in on the subject.

Because in 1995, Pope almost overnight became a household name when as a prosecutor in his early 30s he was thrust into the national media’s spotlight by a woman who drowned her two sons in John D. Long Lake.

One thing hasn’t changed.

Pope still believes Smith deserved the death penalty.

But now, a decade and a half later, she says she didn’t get a fair shake.

“I think it was more than fair,” Pope said this week.

Smith, who is serving her sentence at Leath Correctional Institution near Greenwood, filed on Jan. 19 with the Union County Clerk of Court a handwritten Application for Post-Conviction Relief. In it, she asks that her life sentence be overturned, a new trial be granted and that she be afforded parole eligibility every year.

She claims her Miranda rights were violated in the fall of 1994 when she was questioned without legal counsel, and that Pope is guilty of prosecutorial misconduct for pushing forward with a case when her confession was illegally obtained.

Smith also says her attorney David Bruck – a nationally recognized defense lawyer who during the past 30 years has made a reputation fighting the death penalty – didn’t do his job.

He wouldn’t let her plead guilty, she wrote in court papers. And he didn’t introduce Battered Women’s Syndrome at trial.

“My first inclination when I heard this was that she has forgotten that David Bruck did more to save her life than anyone else would have,” Pope said. “He did a good job.”

To him, he said, it simply confirms that Smith hasn’t changed.

“I think it shows what I said all along,” Pope said. “Fifteen years ago, that jury hoped she would sit in jail and be remorseful for taking the lives of Michael and Alex. But Susan is only concerned about Susan. And that continues to be the case.”

He brushes off the allegations she makes against him, and said he doesn’t believe a claim she makes in the filing that she was threatened with the death penalty if she appealed.

“That would amount to double jeopardy, so I didn’t quite get that,” he said. “She can’t ever face death again.”

The big question now is how the courts will respond, Pope said.

That’s because South Carolina’s statute of limitation with regard to such a motion expires one year after a direct appeal has been rejected or one year from the conviction if no direct appeal is made, as are the circumstances with this case.

Smith’s filing in state court comes just over a month after her petition for habeas corpus relief in federal court was denied based on the fact all remedies in state court hadn’t been exhausted.

Attorneys for the South Carolina Attorney General’s Office are responsible for filing an answer to Smith’s petition. A spokesman for that office said they won’t discuss their response prior to it being filed.

“To me, the story here will be how the courts handle this,” he said. “If you want to talk about travesty, it is that David Smith and the people of Union are being forced to go through this again. If you have a scar, you always remember where you got it. But this is like having the wound opened back up. For David’s sake, I hope it doesn’t go anywhere.”

The Smith children drowned the evening of Oct. 25, 1994, after their mother lowered the emergency brake on her 1990 Mazda Protégé and let it roll down a boat ramp into murky waters with them still strapped in their car seats.

Afterward, she claimed she had been carjacked by a black man who drove away with her sons in the car.

“She’s had 15 years to sit there and come up with angles,” Pope said. “But I’ve told Kevin Brackett if the courts open this one back up again, I’ll be glad to help.”