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As trial enters second week, prosecutors could use some grit.


Nearing the midway point of the O. C. Smith trial, federal prosecutors might want to consider taking the gloves off if they expect to convict the former Shelby County medical examiner of staging an attack upon himself.

Prosecutors Bud Cummins and Patrick Harris of Little Rock have been low-key, methodical, and occasionally light-hearted in their opening statement and questions. Defense attorneys Jim Garts and Gerald Easter have been far more aggressive and focused on their twin themes of the power of suggestion and the statement “they want you to believe he did this to himself” in reference to the shocking photographs of Smith’s head wrapped in barbed wire. Smith himself cried at one point during the second day of the trial.

The treatment of two witnesses by the prosecution and defense highlights the way the trial has gone through two and a half days of testimony. Both were called by the defense, which will continue to present witnesses when the trial resumes Monday.

One was Stephanie Ziegler, a trauma nurse at The Med who was assigned to take care of Smith when he was brought in shortly after midnight on June 2, 2002. Ziegler, who had a baby a week ago, also took the photographs of Smith that were shown to the jury and published in the media this week. Paramedics who took Smith from the Regional Forensice Center to The Med wanted to cut away the barbed wire but Smith asked to go to the hospital right away instead, with the wire still on his head.

Ziegler spoke in a soft but steady voice. She said Smith was very calm and quiet as he told her and others in the room about his attack. She took his heart rate and blood pressure. She also gave him a tetanus shot and started an IV.

“I didn’t see any abrasions on his face, nose, and forehead that night” she said.

Conceding that her memory of the event was more than two years old, she said Smith’s face was red but there were no punctures or lacerations on it, nor did she remember seeing scratches on his hands and wrists. Smith was discharged at 4 a.m., about two and a half hours after being admitted.

“I didn’t see any injuries,” she said.

The cross examination by the defense team was professional and never bullying, but its persistence and duration had Ziegler trembling and obviously distressed as she left the courtroom with a friend. The implication of the defense lawyers was that Ziegler, who did not know Smith and seemed to be testifying for the first time, was lying.

That was a far cry from the way both sets of lawyers handled a much more experienced courtroom participant, Rosemary Andrews. Andrews is a prosecutor in the Shelby County District Attorney General’s office. She has known Smith since 1997, admitted to being friends with him, and has used his testimony in cases.

Questioned by the prosecution, she was gruff and curt to the point of appearing hostile.

After calling Smith’s office and getting his voice mail and then speaking with him by phone, Andrews insisted on going to Smith’s office the afternoon of the attack to visit him and see how he was doing. He was typing out a statement and they talked. He asked Andrews to read the statement, which she did. She also read it in court.

In detail, it describes the attack by a “male white with a pale complexion and a fleshy face,” being “frog-marched” to the stairwell, falling and being fallen upon by the attacker, being “hog-tied,” taking a “hard blow” to the back of the head, having his hands tied, then untied, being lifted up against a window and chained to a grate in a crucified position. A bomb wrapped in barbed wire was placed around his neck and possibly Super-Glued to his body, as the attacker whispered, “Push it, pull it, twist it, and you die. Welcome to death row.”

Andrews and Smith did not talk about the statement any more that day. Some time after the incident, Smith went to France with a female anthropologist who did some work at the morgue.

Under cross-examination, the suddenly chatty and agreeable Andrews described Smith’s injuries from head to foot.

“He looked worn out, beaten up, shell-shocked,” she said.

For whatever reason, prosecutors let Andrews off the stand without exploring her friendship with Smith, her near-familial concern for his welfare, or the cryptic reference to the trip to France.

So far, prosecutors have given the jury little narrative structure to their bizarre but disjointed story and they have suggested no explanation for the pictures showing Smith’s face marked by what are, by any standard, something more than razor scratches. If he wasn’t maimed, he wasn’t unscarred either, at least not by the evidence of the picture, which may well be worth 1,000 words.

On the other side, Easter in particular has been alternately folksy and spellbinding as he bores in on witnesses and works the jury.

This is a case the Shelby County District Attorney’s Office wanted no part of, with Bill Gibbons making a point of using Smith to testify in a case the same week he was indicted and then defending the decision. Memphis federal prosecutor Terry Harris, a former county prosecutor, recused himself and his office and gave his staff orders to stay out of the courtroom while the trial is ongoing. The Memphis Police Department and Shelby County Sheriff’s Office have known Smith as a professional colleague for more than 20 years.

In short, Cummins and Harris are not on entirely friendly ground once they cross the Mississippi River into Memphis. Even though 17 local, state, and federal law enforcement agencies (who has ever heard of even two such agencies cooperating without some friction?) followed up 112 leads in the Smith case, there are obviously more than a few people within those agencies who, for one reason or another, are not happy with the conclusion that Smith staged his own attack and should stand trial for it.

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