Dr. O.C. Smith is on the ropes after taking a series of punishing shots from federal prosecutors and might have to take the stand himself to win his case.
The final piece of the prosecution's evidence, presented Friday before the three-day weekend, was a three-hour videotape of Smith being interviewed and then gently grilled by U.S. attorney Pat Harris and two investigators. The defense began presenting its case Tuesday.
The most damning thing about the tape, which was made on September 11, 2003, is that Smith changes a key part of his story about the alleged attack on him on June 1, 2002. Instead of the attacker reaching for a strand of barbed wire and tying Smith's feet first and then his hands, the attacker ties Smith's hands first in this version.
In statements given to authorities 15 months earlier on the day after the attack and on July 26, 2002, Smith says the attacker "sat with his weight on the small of my back and backside and gathered my leg by grabbing my ankle and bending them at the knees. He crossed my ankle right over left with one arm and wrapped my lower legs and ankle with the wire. ... He let my feet go and turned on the top of me to wrap my right hand and left hand with separate strand [sic]."
On the 2003 tape, Smith is asked by Harris what the attacker tied first.
"My hands and then my feet," Smith says. Then he stammers for several seconds when Harris asks if the right hand or left hand was tied first. "He's wrapping my right and then he's wrapping my left, but I don't know how he does it."
The change in Smith's story was a dead giveaway to investigators who had already concluded that Smith was lying. Cops are taught "hands are what hurt you," testified Paul Kwiatkowski, a Bureau of Alcohol Tobacco and Firearms agent specially trained in no-holds-barred fighting. If the attacker had tied the feet first, he would have been facing backward and a simple push-up by Smith -- a physical-fitness buff who claims to have taught Marines how to kill an enemy at close range -- would have either bucked him off or made it nearly impossible to tie his kicking feet with barbed wire.
"You're either an absolute wuss or you gave up," the rugged-looking Kwiatkowski tells Smith at one point on the tape.
The assumption is that even with an acid solution in his eyes, Smith would have his wits about him and would remember how his attacker had him pinned and whether his hands or feet were tied first. In fact, in his first two accounts, he is clear on the point that his feet were tied first. In addition to that inconsistency, Smith's stories have other flaws.
In one account, Smith sees the attacker quite clearly, describes his clothing, and even thinks he might be able to pick him out of a police lineup. In another, the attacker is just a shadow before splashing a caustic solution from a plastic bottle in Smith's face, all but blinding the 49-year-old doctor for the rest of the attack.
The attacker, alternately described as weighing 170 pounds or 200 pounds, is alone and does not threaten Smith with a gun or knife or beat him with a weapon of any kind. Smith, who usually carries a handgun and a knife, is unarmed on this night.
Neither Smith nor the attacker utters so much as a curse word or a cry for help during the entire attack. They come to grips, "frog march" down a flight of stairs, fall to the ground, and wrestle until Smith is lying face down and the attacker is sitting on the small of his back without either man making a sound louder than a grunt. Smith kicks out and swings and misses, and the attacker strikes him on the back of the head with his elbow, again in silence.
By the time the attacker speaks, he has subdued Smith, kept him under control by simply sitting on him, reached for a stash of barbed wire, tied his feet, hands, and head without leaving so much as a drop of blood, lifted him up to a standing position, padlocked him face-first to a window grate in a crucified position, and put a bomb over his head. Only then does he whisper: "Push it, pull it, twist it, and you die. Welcome to death row." Then he simply walks away into the hot night.
Smith is so focused on the pain that he is unaware that a University of Tennessee Medical Center police officer is checking the parking lot in his car and on foot a short time later. When a second cop comes by -- Smith says "it felt like three seconds or three years" -- he bangs the lock holding his left hand to the bars and is discovered and rescued.
Four hours later, he checks out of the hospital and goes to his office. The next day, he is back at work, albeit with a bright red rash on the right side of his face which wasn't apparent in the hours after the attack. Such is the story, or stories, that the jury has heard.
Smith is charged with two counts of lying and one count of unlawful possession of a bomb -- the one around his neck. Casual followers of this case may be tempted to take the NBA referee's position "No Harm, No Foul" since Smith was unhurt and the bomb did not go off. But there are good reasons for pursuing this prosecution and better ones for punishing Smith if he is found guilty.
The bomb was the real deal. The jury has been shown detailed depictions of its components (shot, powder, a battery, and a triggering mechanism) and assemblage. Cops said it could have killed people. In one of the trial's most dramatic moments, a gutsy former Memphis cop named Mike Willis, commander of the bomb squad in 2002, described how he and two other guys got the bomb off of Smith. Willis grabbed the bomb while a colleague cut the barbed wire. "Once I had a hold of it, I'm not letting go," said Willis.
He gently placed the bomb on a blue plastic barrel someone brought over. For a heart-stopping second, it rolled on top of the barrel, but it didn't go off.
Willis, Smith, and two other police officers could have been killed or maimed if Willis had not been so sure-handed or if someone had accidentally kicked over the barrel.
Then there is the matter of the 15-month investigation leading up to the interview on September 11, 2003. To many cops, investigators, and prosecutors in Memphis and Shelby County, Smith was "our doc," a stand-up guy who would come to a crime scene in the middle of a cold, wet night and testified for them at hundreds of trials.
U.S. attorney Terry Harris, who recused himself and the Western District of Tennessee office from the Smith case, worked with Smith for 14 years when Harris was a Shelby County prosecutor. On June 3, 2002, Harris called a meeting of virtually every local, state, and federal law enforcement agency with manpower in Memphis to tell them that finding the Smith attacker was his "number-one priority." A total of 17 agencies followed up 112 leads before coming to the reluctant conclusion that Smith did it to himself. The cost of such an investigation and 24/7 protection for Smith and his wife in dollars and manpower was substantial at a time when the country was on terrorism alert.
In an unusual bit of courtroom drama, Harris was called to the witness stand last week to explain why his office was recused. He wound up testifying for several minutes about the transformation of Smith from victim to suspect, thanks in part to some inopportune questioning from defense attorney Jim Garts which opened the door for prosecutor Bud Cummins to allow Harris to essentially become a bonus witness for the government.
Harris seemed highly credible. In contrast to some of the government's expert medical witnesses, the prosecutor spoke confidently but slowly and softly and used simple language. As Harris took the stand, Smith gave him a little wave. Harris said he considers Smith "a personal friend" and "part of law enforcement, certainly." Harris came to the crime scene within hours of the attack, but Smith was already at the hospital, so Harris and an agent drove to Smith's house in Atoka at 6 o'clock that morning. "I was afraid he was going to be in much worse condition," said Harris. "I was relieved to see he was not in terrible shape."
Harris said it was a routine part of the early stage of the investigation to eliminate Smith as a suspect, although he did not say exactly how that was done or whether, as seems likely, some investigators suspected Smith from the get-go. A consensus opinion wasn't reached for several months. It was based, Harris said, on several things, including Smith's superficial wounds, his lack of resistance, the absence of tears in his clothing, and inconsistencies in his stories.
Compared to celebrity expert witness Dr. Park Dietz, who testified later that morning about various mental disorders in staged crimes, Harris was a hammer, Dietz a feather.
In fictional mysteries, movies, and television shows, an omniscient narrator or super-sleuth wraps up all the loose ends in a neat package. That's not going to happen in this case, as prosecutors have admitted ever since Smith was indicted. If Smith staged the attack, his motives can only be guessed at based on the testimony of former colleagues, who said Smith resented criticism and told tall tales, and experts such as Dietz, who did not examine Smith.
Novelists and screenwriters ask readers for "the willing suspension of disbelief" for the sake of entertainment. In the Smith case, prosecutors are asking a jury to leave a few details of this mystery unsolved for the sake of justice.