MuskogeePhoenix.com, Muskogee, OK

Oklahoma News

May 8, 2013

Attorney asks state court to block death sentence

OKLAHOMA CITY (AP) — The death sentence of a man convicted of killing his wife and her four children should be thrown out because the Oklahoma County jury that returned it received inadequate legal instructions about his alleged mental retardation, a defense attorney told the Oklahoma Court of Criminal Appeals Tuesday.

Roderick Lynn Smith, 46, was convicted of five counts of first-degree murder for the 1993 deaths of his wife, Jennifer, and her four children. Smith admitted he killed all five victims.

The victims’ bodies were found on June 28, 1993. Investigators said Jennifer Smith, 9-year-old Glen Carter Jr. and 7-year-old Ladarian Carter were stabbed to death. Shemeka Carter, 10, and Kanesha Carter, 6, were strangled, officials said.

Smith was originally sent to Oklahoma’s death row in November 1994 when a jury returned five death sentences, punishment that was overturned in 2004 by the 10th U.S. Circuit Court of Appeals. Another jury was convened in 2010 to determine punishment and imposed two death sentences for the deaths of Smith’s two stepdaughters and sentences of life without parole for the deaths of his wife and his two stepsons.

Defense attorney Marva Banks of the Oklahoma County Public Defender’s Office told the appeals court the sentencing jury heard evidence about Smith’s mental deficiencies, but the trial judge deleted directions about the relevance of the information from the legal instruction he gave jurors. The U.S. Supreme Court has ruled that mentally retarded defendants are ineligible for the death penalty.

“They had no idea what to do with the information,” Banks told the five-member court. “We have an erroneously instructed jury.”

Assistant Attorney General Robert Whittaker said deleting the information from the jury’s instructions was not an error because a jury at a separate trial in 2004 found that Smith was not mentally retarded.

“That had already been determined,” Whittaker said. “You don’t get to re-try the same claim over and over again.”

Members of the five-judge appeals court indicated they agreed.

“How many bites of the apple can you get?” said Judge Charles Johnson of Ponca City. Johnson said Tuesday’s oral arguments marked the fifth time that Smith’s case had been reviewed by the appeals court.

“Where is there a stopping place?” said Judge Gary Lumpkin of Madill. “He’s been determined not to be mentally retarded.”

In spite of the earlier ruling, Banks said it is still appropriate to present evidence of Smith’s mental retardation during a sentencing trial.

“Mr. Smith is incompetent to stand trial,” she said.

The appeals court did not indicate when it may hand down a decision.

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