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It was November 17, 1991 around 6:50 or so when I was approached at gun point by two undercover officers and told to turn around and put my hands on top of my head. They were then pulled down behind my back as my rights to remain silent were read to me and being handcuffed at the same time. I remember asking "what is this for?" and I was told "you'll see", as I was being dragged to the backdoor of the unmarked police car. After being put inside of the car I was then driven to what was then called Boston City Hospital, where I was then brought into a room and identified as Sam by the officer to an alleged shooting victim, who in turn stated the words, "that's him?"which was more of a question than a statement.
No photo array, no line up, it was a face to face encounter conducted by the police. The part of this story that has never came to light is that when I was arrested for this shooting I had a receipt along with all the items on that receipt in a bag and the time on that receipt was the same time that the victim said I allegedly committed the shooting. These were also written into my booking sheet because I was allowed to bring them to my cell that night.
The next morning I was arraigned on the charges of assault and battery with a dangerous weapon, being a handgun, assault with intent to murder, three counts each, and one count of possession a handgun.
Judge Spurlock ordered me held on $5000 bail and my counsel requested two bail reduction hearings based on the lack of evidence and identification. My bail was reduced to $2500 and I was released that day. Some 37 days later I was indicted on all 7 counts and re-arrested on December 24, 1991. I was arraigned in Suffolk Superior Court where my bail was raised to $30,000. Needless to say, my family couldn't make the bail, so with what money they did have they hired attorney Barry P. Wilson to defend me.
His first move to request a bail reduction happened in February of 1992 and was denied due to the prosecutor, Robert Joska, informing the court of a pending indictment against me for an armed robbery arriving soon. To date I am still confused as to who and what. Not to mention, how did I commit an armed robbery? The facts and reports differ from court and police reports. I was summoned to court in October/ November of 1991. This being Roxbury district court, the case was dismissed due to a victim no show. Me being young and unknowledgeable, I relied on what my lawyer, Mr. Wilson told me, which was I had been indicted on those same charges that was dismissed in Roxbury district court. I asked how and I was informed that the district attorney could indict a ham sandwich if he wanted too. I was never given nor did I see any paperwork pertaining to the armed robbery charge in Suffolk superior court. I was denied access to any grand jury minutes and any interviews conducted in regards to these investigations. Counsel's word was all I had and I now sat in county jail awaiting a trial on 8 indictments with a bail of $32,500, because when I got arraigned for the armed robbery charge the judge placed an additional $2500 to the existing bail, that I could not afford to post.
Over the course of 108 days Mr Wilson filed motions pertaining to the assault with intent case and I was told by Mr Wilson that the commonwealth had failed to respond to the motion so the court is calling for a hearing on April 9, 1992, and if the commonwealth doesn't have something to show that I would then be able to seek release. I had a good chance at going home that day, but to my surprise I was not brought to court on April 9, 1992, instead, A.D.A Tochka went to see a different judge, so I was brought into court on the 10th of April, which took me to prison instead of home. Attorney Barry Wilson came to the court cell block and said the witnesses are here and the commonwealth is moving forward with trial today. Also, they just informed him that I was indicted for a shooting involving a guy named Mark Crump. I'm not only lost and confused, but afraid for my life at this point, because now my lawyer who said the charges that I could prove that I was not present for and go home after, was now telling me that I could get 40 to 60 years for, or I could take a plea offer of 15 to 20, which I said no to.
He left the block but came back within minutes and said here's the deal. You are looking at 30 to 40 years for armed robbery and 40 to 60 years for the shooting, not to mention the new indictment you have. Look at your buddy Gary Bon, who just got 30 to 40 years in this same court days before we were having this conversation. He now goes on to say "I got you down to a 10 to 15 year sentence" and the deal is if you take the plea on one case it has to be on them all and if you go to trial on one it has to be on them all. My alleged co-defendants had to plea as well, it was called a global "package plea". My co-defendant David Walker said no to the deal and counsel left again only to return within minutes where my alleged co-defendant David Walker's plea went from 10 to 15 down to 8 to 10 years. Victor Rontas and I went from 10 to 15 down to 10 to 12 years, allegedly due to having more indictments.
We were also told this is it, take it or suit up for trial. Out of duress and utter fear we all took the plea, threats were made and conversations were drowned out by fear. I had a child on the way and made it known that although 10 to 12 years was long, that 30 to 60 would shatter any chance of being a part of my child's life, and Mr. Rontas understood that, because he too had a child on the way, so Mr. Walker did what we asked and or to put it in a better phrase, begged and threatened. So on April 10, 1992 I plead guilty to 11 indictments, 4 counts of assault and battery with a dangerous weapon, 4 counts of assault with intent to rob/murder, 1 count of armed robbery, and 2 counts of possession of a firearm. I was sentenced and sent to M.C.D Walpole, then moved to Concord medium, where I contacted Mr. Wilson and informed him that something wasn't right.
I questioned who were these alleged witnesses and how did he know they were who they said they were? From my knowledge, Mr. Wilson had not spoken to any witnesses, so how would he know what anyone looked like? Needless to say, we went back and forth and Mr. Wilson filed a motion requesting to be removed from the case. I called him and asked him what is the motion for? His reply was due to my family being done with payment and my case being closed. He said nothing else. But a few weeks later I received another motion. This one was a revise and revoke with an affidavit stating that my sentence was illegal and that he had the information. No words or conversation and that was the last I ever heard from him.
In August 1992, I filed a new trial motion and a motion for appointment of counsel. I wanted to ask the court how I got a sentence for assault and battery with a dangerous weapon and assault with intent to rob / murder on the same person? Which charge is it? How is it both? I was confused. I never heard back from the court. Then on April 20, 1993 I was brought back into court and told by attorney John Galvin, that I was there for my new trial motion which made me happy until he said you've been indicted for firing a firearm within yards of a building in connection with your Mr. Crump shooting that I was already sentenced for. He stated, "Here's the deal, you plead guilty today and the commonwealth will run the sentence concurrently retroactive, so you won't do a day over what your already doing, and the commonwealth takes your new trial motion and you don't file anything else in the courts."
So I did and the court gave the 484 days jail credit and I went back to jail as if nothing ever happen. I found out 7 years later that
I have come to find out that the courts
John Galvin was not my defense counsel from July 9, 1992 to April 19, 1993. My first meeting with him was on April 20, 1993. I have come to find out that my attorney, Barry P. Wilson, withheld information from me that showed I was not guilty of the Mark Crump shooting.
There was a police report written by officer Marilyn Hilton that clearly stated the victim Mark Crump was shot by two people each with a different earlier weapon, height, and weight of both suspects, and no description given matched me. The witness was never brought to the grand jury or turned over to me, nor was any of that information turned over to me before the plea. I was also lead to believe that the armed robbery indictment was based on the alleged witness testimony. When in fact it was based on a police officer's testimony, who was a non-witness and never turned over any paperwork of any alleged investigation and/or any photo array or interviews. I was denied my due process rights of the 14th amendment and right to effective assistance of counsel. To date I have not found a case where anyone is granted jail credit for a case that they were not being held on. I was awarded 484 days jail credit for a crime that I was not in custody for, December 23, 1991.
The guilty parties who have all played a part of this wrongful conviction is as follows:
1. Robert Tochka, Assistant District Attorney
2. Jamie Coffey
3. Mary Ames
4. Francis O'Meara
5. Frederick Waggett, Police Officer
6. Robert Merner, Police Officer
7. Barry R. Wilson, ESQ., Defense Counsel
8. John Galvin, ESQ., Defense Counsel
Sam Smith asserts there are many documents related to his litigation and important to his defense that have been "lost".
Review this PDF to see one example.
Stay tuned for more information.
baywindows.com - BY ETHAN JACOBS | JULY 16, 2008
At first glance the murder trial of Roxbury gang member Sam Smith, known as "Fat Sam" according to press reports, seems to have little to do with transgender civil rights. In June 2001 a jury convicted Smith of first-degree murder for shooting and killing a member of a rival gang in Roxbury's Ramsey Park in 1991. But Smith and his attorney, David Mirsky, are hoping that the U.S. Supreme Court will force the state to grant Smith a retrial on the grounds that one of the prosecutors in the case allegedly dismissed a juror because the juror appeared to be transgender.
To be clear, Smith, currently serving a life sentence at MCI Cedar Junction, is no transgender rights crusader. Mirsky said his ultimate goal in filing with the Supreme Court is to win a retrial. But in order to get to that point Mirsky will have to make the case to the highest court in the land that it is a violation of the 14th Amendment's equal protection guarantee to deny someone a seat on a jury for being transgender.
"If there's an equal protection violation in jury selection...then that is considered structural error, and you cannot have a fair trial regardless of what occurs after that," said Mirsky. In January the Massachusetts Supreme Judicial Court (SJC) ruled that no such violation had taken place because there was not sufficient information available at the time of the trial to show the prosecution's allegedly discriminatory intent.
During jury selection for Smith's 2001 trial Suffolk County Assistant District Attorney James Coffey, now a Dorchester district court judge, attempted to challenge a juror for cause because the juror had what Coffey described as "identification issues." Coffey told the judge that the juror, who worked as a hairdresser's assistant, appeared to be a male who had breasts and who wore female clothing. The legal record does not contain any information about the juror's name or whether the juror identified as transgender.
Superior Court Judge James McDaniel denied Coffey's challenge. Coffey then exercised his right to remove the juror through a peremptory challenge, which allows both sides in a case to ask the judge to dismiss a certain number of jurors without having to provide a legal justification, as long as neither side uses its challenges to remove jurors because of their membership in a particular group. Smith's attorney at the time - Mirsky was not yet involved in the case - complained that Coffey seemed to be excluding the juror for being "a homosexual white male," but Coffey answered that he was concerned not with the juror's sexual orientation but with the juror's gender identity and expression.
"Just so I may be crystal clear, there's absolutely no pattern [of challenging gay jurors]. I don't even know of any even homosexuals that have been before us," said Coffey, according to a transcript reproduced in the SJC's January ruling. "This particular gentleman was dressed, in my opinion, like a female, and he has breasts and so forth. And, frankly, I was just looking at this from a common sense point of view. This guy has a lot of identification issues, and I don't -,"said Coffey, before the judge interrupted his comments. The judge allowed Coffey to dismiss the juror.
After the jury returned a guilty verdict Smith appealed and pushed for a retrial, claiming that there were a number of flaws and legal violations during the trial, including the alleged discrimination against the juror who appeared to be transgender. Smith's attorney also argued that the judge unfairly allowed jurors to see evidence of Smith's gang affiliation and that he introduced prejudicial evidence during his instructions to the jury, among other complaints. The case reached the SJC, which ruled against Smith.
Writing for the court, Justice Margot Botsford said that the SJC would not rule on the question of whether it is illegal to use a peremptory challenge to remove a juror because of their sexual orientation or gender identity or expression. She noted that Article 12 of the Massachusetts Declaration of Rights prevents the use of a peremptory challenge to remove a juror because of their affiliation with "particular, defined groupings in the community."
"To date, this court has not considered the question of whether the exercise of a peremptory challenge to remove a juror because of his or her sexual orientation or because the juror was transgendered would violate the guarantees of art. 12 or the equal protection clause," wrote Botsford. "Nor, it appears, has any other court. We do not reach the question in this case because the record does not supply the necessary factual foundation."
She wrote that there was no information in the record about the juror other than the attorneys' comments about the juror's appearance. Botsford wrote that the juror's sex, sexual orientation and potential transgender status are all unknown. She wrote that Smith's attorney at the time failed to file an objection to the peremptory challenge, giving the trial judge no impetus to determine formally whether discrimination had taken place.
Despite the SJC ruling Mirsky said he believes the record of Coffey's comments is sufficient to show discriminatory intent. He filed a petition for writ of certiorari with the Supreme Court appealing the SJC decision last month, and he is hopeful that if the court decides to hear the case it will rule in Smith's favor. Despite the court's purported conservative tilt and the absence of any important prior Supreme Court decisions in favor of transgender rights, Mirsky said he believes they will rule in favor of transgender rights. "We should have confidence in the court, and I do. I think they'll protect the rights of transgender individuals," said Mirsky. Smith's petition to the Supreme Court also repeats the argument that the trial judge unfairly allowed the introduction of evidence about Smith's gang affiliation.
Gary Buseck, legal director for Gay and Lesbian Advocates and Defenders (GLAD), said he suspects the Supreme Court will pass on reviewing the case for the same reason the SJC declined to rule on the question of whether it is unconstitutional to deny someone a slot on a jury because of their sexual orientation or gender identity or expression. He said the SJC likely declined to do so because of the small amount of information available in the record about the juror, which might make it difficult to determine definitively whether an instance of unconstitutional discrimination took place. Buseck said that since Smith's attorney did not make an objection, McDaniel had no reason to inquire about the charge of discrimination during the trial.
"My hunch would be that this one does not set up for Supreme Court review, and I think the SJC was uncertain on this record, what were they really looking at," said Buseck. He added that "there was something very strange and something that seemed inappropriate on the face of the dialogue" between Coffey, McDaniel and Smith's attorney during the trial, but he was not familiar enough with the law around juror challenges to know if it was illegal.
Buseck said Mirsky contacted GLAD after filing with the Supreme Court to ask whether they were interested in getting involved in the case. He said if the Supreme Court does decide to weigh in GLAD and the other LGBT legal advocacy organizations would likely confer about submitting an amicus brief stating their perspectives on the case. "We never foreclose the possibility of offering some assistance if the case should go to the Supreme Court. ... We would want to think very carefully in a broad collaborative fashion about what we could or couldn't do that would be helpful," said Buseck.
Jake Wark, a spokesman for Suffolk County District Attorney Daniel Conley, rebutted Smith's claims of discrimination by pointing to the SJC's finding that there was no evidence of a pattern of exclusion. He declined to address the substance of Coffey's remarks during the trial about the juror's appearance and anatomy but said Conley's office does not discriminate in jury selection on the basis of gender identity or expression. Smith's trial took place while Ralph Martin, Conley's predecessor, served as Suffolk County District Attorney.
"The information I have at hand is simply not sufficient for me to go into the prosecutor's motive, but I know in policy and in practice we have no desire and no reason to desire exclusion of anybody from a jury based on gender identity or expression," said Wark.
He said all new prosecutors go through an extensive ethical training period that includes training on the ethical selection of juries. Seasoned prosecutors also go through the training periodically as part of a continuing education program. Under Conley that training includes instructions that prosecutors may not discriminate against potential jurors because of their gender identity or expression, Wark said. He did not know whether there was overt discussion of transgender discrimination under Conley's predecessors.
Harry Pierre, a spokesman for Massachusetts Attorney General Martha Coakley, said her office would not file a response to Smith's Supreme Court petition in defense of the state. He said Coakley's office was not required to do so unless specifically instructed by the court.
Gunner Scott, executive director of the Massachusetts Transgender Political Coalition (MTPC), said that he has generally had a positive working relationship with the Suffolk County D.A.'s office, and he said the office has reached out to MTPC to build on that relationship. At the time of Smith's trial Scott worked for The Network/La Red, which advocates for lesbian and bisexual female and transgender victims of domestic violence. Scott said he found the office's victim witness advocates to be professional and respectful when dealing with LGBT victims and witnesses.
"As with any entity, training needs to happen, and it needs to be ongoing, and I think there are definitely strong areas within the DA's office, and their may be other areas that need more education," said Scott. He said regardless of whether the juror in the case identified as transgender, it is discrimination on the basis of gender expression to single out a juror because they appear to be a male dressed in female clothing or because they appear to have breasts. He cautioned that he was unfamiliar with the case and did not have firsthand knowledge of Coffey's comments.
"Even if that person wasn't trans, if that person was dismissed based on that assumption, that would be discrimination based on gender expression. ... The fact is this person showed up and did what they were asked to do and were not treated fairly, if that is the case," said Scott.