Rx: Retrial

At first blush, career criminal John Arthur Smith's gripes about his trial attorney's shortcomings sound painfully familiar. In 1985, a Maricopa County judge sentenced the Phoenix man to life in prison after he was convicted of robbing a drugstore. Smith's earliest release date was 2010, when he will be 57 years old.

Smith appealed, claiming that his lawyer, James Kemper, had done such a poor job defending him that the jury had little choice but to convict.

That argument -- dubbed "ineffective assistance of counsel" -- rarely passes muster with appellate courts, which usually hesitate to second-guess a barrister's courtroom strategies. To win, a complainant must prove not only that an attorney's performance was deficient, but that the effort (or lack of) prejudiced his or her defense.

As a barometer, appellate judges use a 1984 case that said a defendant merits a new trial in "ineffective assistance" cases only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

That's precisely what Superior Court Judge Peter Reinstein says happened in John Smith's case. On January 23, Reinstein issued an eight-page order that granted Smith a new trial. Had Kemper done his job adequately, the judge wrote, John Smith probably would have been acquitted 16 years ago.

On the evening of September 17, 1984, a man and a woman wearing nylon stockings over their faces walked into a Revco drugstore in Ahwatukee. Both were carrying guns. The man ordered a pharmacist to fill a bag with narcotics and money -- about $1,800 in cash.

Onlookers inside the store were able to give only a general physical description of the man. However, someone wrote down the license plate number of the getaway car, which was registered to a Robert Cunningham. Sheriff's detectives first focused on Julie Cunningham's brother, Scott, who had a history of drug offenses and had access to his father's car.

But the detectives later arrested Julie and her future husband, John Smith, on charges of armed robbery.

The pair went to trial together in early 1985, with attorney James Kemper representing Smith, and Clark Derrick representing Julie Cunningham. Because he was charged with committing the crime while on parole for another robbery, Smith had far more to lose if convicted than his girlfriend -- a conviction mandated a life sentence without possibility of parole for 25 years.

Certainly, John Smith may well have committed the crime with which he was charged. But the record also shows that the prosecution case against Smith was wafer-thin at best.

The case against the two hinged on eyewitness identification, often an iffy proposition. But only three of the many eyewitnesses to the crime and escape were able to identify Smith and Cunningham from the witness stand.

The first positively identified Cunningham, but said he was only "70 percent" sure he'd seen John Smith (he'd earlier told a detective he was 80 percent certain). A second witness said she was "about 50 percent" sure she'd seen Smith at the drugstore. The third eyewitness was a 12-year-old boy who identified Cunningham, but testified that Smith looked different from the man he'd seen at the crime scene.

Sheriff's detectives had no fingerprint evidence against Smith, and assistant attorney general Steven LaMar had anything but an ironclad case.

"I don't remember much about the case because it was so long ago," says LaMar, who now is in private practice, "but I remember going mano a mano with Clark Derrick on a lot of things. I don't recall Jim [Kemper] being ineffective or anything like that."

The record shows that Derrick did most of the work during the trial. His client, Cunningham, also was convicted, and served more than three years in prison. (Court records indicate that she later married John Smith, then divorced him in 1995.)

For his part, Kemper called no witnesses in Smith's defense, including a woman who may have helped create more reasonable doubt in the jurors' minds.

After the robbery, sheriff's detectives showed a photo lineup to the woman, an eyewitness at the scene. She chose Scott Cunningham as the person most resembling the guy who had robbed the pharmacy.

But Kemper never put the woman on the stand. She could have testified that she'd identified someone other than Smith as the robber.

And Kemper never presented testimony that police first had suspected Scott Cunningham of the robbery. He never interviewed Scott or called him as a witness at trial.

In finding that Kemper failed to effectively represent Smith, Judge Reinstein points out a possible reason: Kemper's $5,000 retainer fee was paid by Robert Cunningham, Scott and Julie's father. Kemper also failed to cross-examine Robert Cunningham about Scott's access to the getaway car.

Kemper, now a senior appellate attorney with the county Public Defender's Office, says now that he had a "very good reason" for not calling the woman who was an eyewitness to testify. "But I honestly don't remember what it was because of the passage of time."

As for the suggestion that he didn't serve Smith as well as he might have because he was being paid by Cunningham, Kemper says: "I did my best in that case, as I have in every case, though I can't tell you at this point why I did this or didn't do that. If the implication is that I didn't do this or do that because of who was paying me, that's as wrong as it gets."

But in his ruling, Reinstein said he couldn't fathom why Kemper hadn't planted the seed with jurors that Scott Cunningham was the bad guy.

The judge wrote that Kemper's "performance at trial and his pretrial investigation on behalf of his client were such that the trial cannot be relied upon as having produced a 'just result.'"

Smith's appellate attorney, Tom Phalen, used far stronger terms last year in court papers filed with Reinstein:

"This is one of those rare cases that gives reviewers stomach aches. [Smith] did not receive a fair trial. Powerfully viable defenses were ignored, and [Kemper] operated under a patent conflict of interest. . . . The case is one that cries out for correction. . . . Julie Cunningam's parents were paying the freight for both lawyers: Powerful motivation, without more, that the piper was calling the tune."

Phalen added, "No one told this court that Kemper and the Cunningham parents conspired against John Smith to protect Scott Cunningham, but the case was lousy with red flags that pointed to conflict. . . . The Cunningham parents paid both lawyer's fees and were present during the entire trial, putting Kemper under the hot spotlight should he dare to suggest Scott's complicity in the crime."

The County Attorney's Office hasn't said whether it plans to dismiss charges against Smith, now 47. Tom Phalen noted in court papers that, if Smith committed the same crime today, he likely would be sentenced to almost 16 years in prison -- which is how long he's been incarcerated so far.