Special prosecutor Bud Cummins, the U.S. attorney in Little Rock, isn't tipping his hand, but he said a decision will probably be made within two weeks. A mistrial was declared last week following a three-week trial that was the culmination of a three-year investigation of the alleged attack on Smith at the morgue on June 1, 2002. In an unusually candid interview Tuesday, Cummins said the costs and benefits of a retrial are "on the table."
"We're facing the tightest budget restraints in memory of anyone in the Department of Justice," he said. "We have a lot of discretion whether to indict someone. Cost is not pivotal in that decision, but you can't pretend it's free."
Federal prosecutors in Memphis have had a full plate lately. They spent three years on the Lynn Lang and Logan Young football-booster case, which ended in February. And federal grand juries are looking at both Mayor Willie Herenton and state senator John Ford.
In Smith's case, the cost has been considerable, because for several months Smith was under 24-hour protection, while a task force of 17 agencies ran down more than 100 leads looking for an attacker. When the focus shifted to Smith himself, investigators bent over backward to be thorough.
Jim Cavanaugh, lead investigator for the Bureau of Alcohol Tobacco Firearms and Explosives, said he was the "biggest obstacle" to thinking of Smith as a suspect rather than a victim. He insisted that investigators continue to chase outside leads even after inconsistencies in Smith's story became apparent. It was only after several months that he agreed the evidence should be presented to a grand jury for possible indictment of Smith.
"We took it that way because the facts forced us that way," Cavanaugh said.
It took several more months during 2003 to find a prosecutor. Terry Harris, U.S. attorney for the Western District of Tennessee, recused his staff because of ties to Smith. The United States attorney for North Mississippi took the case, then gave it back, before Cummins and assistant prosecutor Pat Harris agreed to try it. "That probably took nine months to a year in all," said Cummins.
Cummins said he will check with defense attorneys Gerald Easter and Jim Garts then make a decision on a retrial "sooner rather than later." U.S. district judge Bernice Donald set April 19th as the next report date, but Cummins said a decision could come next week.
"We hate to not retry one," he said, adding that Harris is the main trial lawyer in the office and "it's his case."
But Cummins said he and Harris must also take into account the 9-3 vote in favor of acquittal and comments jurors made to the attorneys immediately after the trial. Cummins said there were moments during the debriefing "when I would liked to have jumped up and said, 'Are you kidding?' But if you shut up and listen, it's good stuff." Jurors said they didn't like some expert witnesses and had little interest in factitious disorder, the diagnosis of Smith suggested by expert witness Dr. Park Dietz.
The biggest surprise to Cummins was that at least three of the nine jurors who voted not-guilty believed that Smith was attacked. Prosecutors thought their major problem would be overcoming the burden of proof and reasonable doubt. "We didn't connect with them very well on our theory; there's no beating around the bush," he said. "If I conclude we are likely to hang another jury, then there is not much point."
Asked if Smith had a home-court advantage, Cummins said there was "clearly a division of loyalties we had to deal with" in the law-enforcement community. But, like Easter, he complimented Donald on doing a professional job under difficult personal circumstances. The judge's judicial colleague, James Swearengen, and her court clerk, Yolanda Savage, both died while the trial was under way.
Cavanaugh, who said he was strongly in favor of a retrial in a post-trial press conference last week, seemed to be softening his stance a bit this week. The ATF agent has worked on the Washington, D.C., sniper case, the Eric Rudolph case, and the bombing at the 1996 Atlanta Olympics.
"If there is a bomber loose, it's so devastating on a community," he said. "I thought it was the right thing to take the Smith case to the bar of justice." He added, however, "If it's not at the end, it's close to the end."