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Court: Man convicted in 1983 killing should get new trial
AP

Court: Man convicted in 1983 killing should get new trial

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SAN FRANCISCO (AP) — A man convicted three years ago in the 1983 murder of his former girlfriend in her San Francisco Bay Area home has been granted a new trial by a state appeals court because the defense lawyer never told the jury the name of another man whose DNA was found under the victim’s fingernails.

Sherill Smothers was sentenced in 2018 to 25 years to life in prison for the fatal stabbing of Marsha Carter, 25, in December 1983 in the Richmond home where she lived with her four children. Her body was found in the trunk of a car in West Sacramento 10 days later. Smothers was charged after DNA testing found his blood in the victim’s bathroom, the San Francisco Chronicle reported Wednesday.

Investigators also traced DNA found under Carter's fingernails to a Wisconsin resident who had a criminal record and told investigators he had never been to California. He has not been charged with a crime related to the case.

At Smothers’ trial, his lawyer told jurors that an unknown man’s DNA had been found under the victim’s fingernails but never mentioned the man by name. The lawyer explained later that he had no good-faith reason to place the man in California.

Shortly after the trial, defense investigators found evidence that the man had traveled to California in late 1983, looking for work. Superior Court Judge John Kennedy refused to overturn Smothers’ conviction based on that evidence but was overruled Tuesday by the First District Court of Appeal in San Francisco.

“How else would (the DNA sample) have gotten there in the absence of (the man) being in contact with Carter?” Rebecca Wiseman, a retired appellate justice assigned to the court for the case, said in a 3-0 ruling granting Smothers a new trial because of ineffective legal representation.

She said prosecutors had accused Smothers of trying to recruit a killer in the neighborhood, including a witness who testified against him. Smothers denied any involvement in the killing, and there was no evidence that he had any contact with the man, Wiseman said.

If Smothers’ lawyer had identified the man to the jury, Wiseman said, it “would have exposed holes in the prosecution’s conspiracy theory.”

Gary Dubcoff, Smothers’ appellate lawyer, had argued the murder charge should have been dismissed because of undue delay in bringing the case to trial. But the appeals court rejected that.

Wiseman said the DNA technology was not available until 2001, and the investigation did not begin until 2008 because of a backlog in the Contra Costa County District Attorney’s Office, and Smothers was not identified as a suspect until 2015.

Smothers was paralyzed by an auto accident in the 1990s and is a paraplegic who uses a wheelchair.

“My hope is that there won’t be another trial and that he can go home” after nearly three years in prison, Dubcoff told the newspaper Tuesday.

District Attorney Diana Becton’s office declined to comment. Prosecutors could ask the state Supreme Court to review the ruling.

For copyright information, check with the distributor of this item, San Francisco Chronicle.

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