Judge ‘baffled’ by prosecutors’ failure to share evidence, could dismiss murder charges
The same day District Attorney Mark Jones gave notice he’ll seek the death penalty in a Columbus cold case, he said he may have to dismiss the case first.
Jones is considering that because Superior Court Judge Gil McBride could dismiss the murder case “with prejudice,” so it can’t be revived. If Jones dismisses it first, he can try to re-indict the defendants in the 2004 shooting of Kirby Smith.
The judge at a hearing Thursday said he was weighing the option of ruling prosecutors have violated the defendants’ right to a fair trial by ignoring his orders to turn over evidence to defense attorneys for Smith’s estranged wife Rebecca Haynie and her alleged accomplice Donald Phillips.
The defense attorneys, John Martin for Phillips and Erin King for Haynie, asked McBride to hold prosecutors in contempt, and drop the case with prejudice because the delay has damaged their clients’ rights.
“We think the record is clear. It’s unambiguous what has happened,” Martin said.
“Failure to comply with the discovery order is enough for this court to dismiss with prejudice,” King said.
The evidence
Among the evidence the defense sought was raw footage from a TV crime show, “Cold Justice,” that made a deal with Columbus police to get investigative files and pursue the case. The TV show offered its footage to police, who signed a contract with the company that produced the program for the TNT channel.
The defense has blamed “Cold Justice” for spurring the arrests of Haynie and Phillips, arguing the show and the police investigators involved focused exclusively on the two suspects, ignoring other leads.
“We ended up here because they brought in a TV show to help them solve a case,” King said. “The only evidence they have is ‘Cold Justice.’”
Other material McBride ordered prosecutors to turn over included evidence in another 2004 homicide, and any information on a suspect in that case. The defense intends to argue someone else killed Smith.
Besides the “Cold Justice” video, it asked for:
- The police case file on the May 15, 2004, homicide of Edward Earl Taylor Jr., 41, another auto mechanic shot dead at a shop at 1801 Manchester Expressway.
- Any evidence related to police suspecting Kenneth Walton in the deaths of both Taylor and Smith. Convicted in the July 5, 2007, murder for hire of Stephanie Shea Graham, in Russell County, Walton is imprisoned in Alabama.
- Any evidence related to a 9-millimeter pistol seized from the employee who found Smith’s body when he came to work at Kirby’s Speed Shop on March 4, 2004. Police confiscated the gun when the worker was arrested in 2008 on an unrelated drug charge.
Smith and Haynie were embroiled in a contentious divorce in 2004, and the prosecution’s theory is that she engaged Phillips, allegedly her lover at the time, to kill Smith at the 1438 Jacqueline Drive shop. Police believe Smith was shot around 9 p.m. the night before his body was found about 8 a.m.
Investigators found no evidence someone broke into the shop, and assumed the killer was someone Smith knew. They ruled out robbery as a motive because Smith had cash on him. The only thing missing was a gold necklace that Haynie prized, police said.
Haynie later remarried, but in court filings sometimes is identified as Rebecca Smith. She benefited from Smith’s life insurance after his death, police said.
Jones told McBride that’s why he wants to pursue the death penalty: If Haynie engaged Phillips to kill Smith for money, that constitutes murder for hire, an aggravated circumstance that justifies death under Georgia law.
“We believe the evidence will show the defendants basically executed the victim in this case, Kirby Smith, for life insurance money, as well as property from a divorce, to avoid a divorce settlement,” Jones said.
He asked McBride whether the defense attorneys were qualified to handle a death penalty case.
If McBride dismisses the indictments, that won’t matter, Martin said.
Next steps
McBride set a May 27 hearing on death penalty procedure, and said a ruling on the prosecution’s disobeying his orders will come first.
He will consider dismissing the case, he said.
“Let me just tell you this,” he said to Jones: “That dismissal with prejudice is a remedy that is definitely within the realm of possibilities.”
He told the attorneys to file arguments and motions for him to consider: “I would like to see briefs. I would like to see proposed orders. I would like to have those within 10 days of today.”
He said he was “baffled” by the prosecution’s conduct, and had never seen a criminal case so stymied by the failure to produce evidence.
Jones asked the judge to let him dismiss the charges first, so he can submit the case to another grand jury.
“If your honor is seriously contemplating that, please let me know now, and I will do a voluntary dismissal,” he said.
Jones, who took office in January after defeating incumbent Julia Slater in last year’s election, blamed Slater’s staff for ignoring the court orders.
King agreed Jones was not to blame, but said the prosecution still was in contempt of court. Martin said the law does not distinguish between differing administrations: Whoever’s in office must account for the delay.
Slater emailed the Ledger-Enquirer a statement when asked for comment.
“Under my administration, it was the policy of the Office of the District Attorney to comply with all orders and to turn over appropriate information in the possession of the state,” she wrote. “If items were not given to the defense, they were not within the state’s reach or they were protected from disclosure. Certainly the current administration has had time to provide items they feel should be disclosed, or they can do so now.”
Jones told McBride that disclosing evidence in another murder case would be an issue with the police department, which fears turning that over in the unresolved Taylor cold case could have a “chilling effect” on the investigation.
“I think we may get some pushback, judge, from the police department,” Jones said, but he offered to go to the Public Safety Center with the defense attorneys to get the records right away.
King said it was too late for that: The district attorney’s office had years to comply with McBride’s orders, and ignored them, delaying a prosecution now seven years old.
“The clock starts ticking with the moment of arrest,” she said.
The suspects were arrested on June 5, 2014, 10 years after the homicide. They were indicted for murder on Aug. 30, 2016.
Phillips first filed for discovery evidence on July 11, 2014, and sought more specific evidence in a second filing on Oct. 5, 2018. Haynie filed for any evidence favorable to the defense on Nov. 3, 2016.
McBride in August 2019 held a hearing and ordered the “Cold Justice” footage to be submitted to the court for review. The following September, he ordered the evidence related to the Taylor case, the shop worker’s firearm, and Kenneth Walton to be delivered within five days.
McBride clarified and amended the September order on Feb. 14, 2020, giving the prosecution 10 days to submit the information.
Prosecutors appealed that order to the Georgia Supreme Court, which rejected the appeal outright on March 25, 2020, saying it failed to meet the legal standards necessary.
McBride referred Thursday to the high court’s decision on that, saying no dispute remained as to whether his orders were valid.
King urged the judge to act to prevent future violations of court orders to produce evidence.
“If we don’t have a remedy for prosecutors and police officers who just blatantly disregard this court, what precedent are we setting going forward?” she asked.
“Because now, anyone throughout the state can say, ‘I don’t have to respond to that order either, because in the Haynie and Phillips case, the state didn’t have to respond or comply.’ I just think this is a huge injustice, your honor.”
This story was originally published April 9, 2021 at 2:50 PM.