Fact and fiction of Pamela Smart
Hampton Union, January 27th, 2019
[The following article is courtesy of the Hampton Union and Seacoast Online]
“Even though I didn’t pull the trigger, my bad choices helped load the gun,” said Pamela Smart during the documentary “Captivated: The Trials of Pamela Smart.”
Smart was sentenced to life in prison for conspiring to murder her husband. And after multiple legal appeals, she is again petitioning for commutation, a reduction of her sentence.
Her petition and a Washington Post article in last week’s Seacoast Sunday prompted my desire to take a closer look at this story that has managed to stay in the public eye for nearly three decades through articles, interviews, documentaries, books, legal proceedings and even movies, which I have not actually seen.
A 24-hour news cycle, social media and the impact of programs like “Making a Murderer” on Netflix have also helped Smart’s supporters maintain their push for clemency.
One of the challenges of social media is how quickly a narrative can trend that may not be entirely based on fact or is simply misinformation. That narrative could even develop into the belief an innocent person is rotting in prison, regardless of the evidence.
I wanted to peel back as much opinion as possible by going to someone who was there when the trial transpired. I wanted to hear the perspective of someone who poured over, considered and pieced together the evidence in real time, and it just so happens I know one of the attorneys that prosecuted the case, Paul Maggiotto.
We have been friends since 2012. The topic of Pamela Smart has seldom come up, but when I asked if he would be willing to conduct an interview with me, Maggiotto agreed.
I also reviewed Smart’s recent petition for commutation and the state’s response to it. Neither are short reads and they contain too much information to unwind here. But the state’s response is a public document, written by Associate Attorney General Jeffery Strelzin, and I received permission to include it as part of my article. It is found at the end of this story.
Strelzin’s brief is incredibly detailed. Line-after-line of the first 88 pages of that 142-page document (including exhibits) specifically cites evidence from the trial and subsequent court decisions related to the case, Smart’s appeals and claims.
Maggiotto was frank in his thoughts concerning Smart’s most recent petition for commutation and his purpose was succinct; keep the facts clear.
“This is revisionist history, and that’s why I’m so willing to keep involved in talking about the case,” he said. “Somebody has to keep everybody on track about what really happened, what the evidence was and what the evidence wasn’t, and not come up with a revisionist description of what happened back then to either get sympathy or to support a commutation of sentence.”
The fact section of Strelzin’s brief spans more than 25 pages and cites facts used at trial and corroborated by witness testimony and physical evidence. Instead of rehashing it all, I will simply suggest you take the time to read the brief.
In short, Smart’s two-week trial in 1991 resulted in a guilty verdict by a jury of her peers, on the charges of accomplice to first-degree murder, conspiracy to commit murder and tampering with a witness. The charges stemmed from the murder of her 24-year-old husband Gregg, who was shot in the head by Smart’s teenage lover William “Billy” Flynn, with the help of three of his friends on May 1, 1990.
Details of the crimes committed were salacious and in abundance. Media coverage of the case was relentless and at times encouraged by Smart. Upon her conviction, Smart began appealing on a variety of issues and allegations.
Many, if not all, of Smart’s claims have been carefully weighed and considered on appeal within the legal system, from the New Hampshire Supreme Court to the U.S. Supreme Court. They have all been denied, proven false or were never argued at trial. Smart thus began her pursuit of a commutation of her sentence or reversal of her conviction. This is her second attempt.
Maggiotto and I discussed many of the issues alleged by Smart, such as whether the jury should have been sequestered, whether there was evidence that the media improperly influenced the jury and whether the trial should have taken place in a different court.
“Sequestering a jury is a very extreme measure,” Maggiotto said. “Everybody was surprised how many jurors had not been following the case in the paper and had not been influenced by what had been in the paper.”
Maggiotto also said attorneys in first-degree murder cases have as many as 20 peremptory challenges available to them. Meaning, they can strike up to 20 potential jurors for just about any reason. In the Smart case, the defense did not use all of their peremptory challenges, which in Maggiotto’s view indicated they were happy with the final set of jurors.
As a result, he did not see any merit in the claim the trial should also have taken place in a different venue or courthouse.
“The issue is, did failing to sequester the jury somehow cause the trial to be unfair and cause the jurors to be improperly influenced, and there was just simply no evidence,” he said. “There was no evidence that if they had read any publicity that that publicity somehow improperly influenced them.”
“The trial court, the United States Supreme Court, the New Hampshire Supreme Court have all considered this issue and ruled that her trial was not unfair,” he added.
Despite media attention inside and out of the courtroom, Maggiotto had confidence in the jury and its ability to scrutinize the evidence. “I think the jurors focused on what was happening in court because it was a pretty dramatic case,” he said. “It was a murder trial.”
Smart also claimed juror misconduct because one juror recorded her thoughts after each day of the trial and allegedly sold the recordings for personal gain, but Maggiotto emphasized the issue was examined, litigated and found to be false.
“If you listen to the tapes ... earlier in the trial, they’re very critical of the state’s case, but as the trial goes on and more evidence is presented, [the juror] starts changing her tune, and after she hears the [recordings between Pam Smart and Cecilia Pierce] she has no doubt about Pam Smart’s guilt,” he said.
Maggiotto found the evidence in the case to be overwhelming, but he did not go so far as to say Smart should not receive a hearing concerning commutation.
“I don’t know if her petition should be denied,” he said. “All I say is, let’s deny it or grant it with accurate facts.
“If you want to give someone who has been sentenced to life without parole a hearing as to commute their sentence, that’s a fair discussion. If you’re going to start giving people hearings, let’s start with people who have accepted responsibility for their crimes, and not just because they happen to be a media darling.”
Pamela Smart in the “Captivated” documentary: “What a great movie it’ll be if I get out, right?”
Chase Hagaman is a community advisory member of the Seacoast Media Group’s editorial board, New England regional director of The Concord Coalition and host of Concord’s weekly radio show and podcast, Facing the Future.