THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, August 12, 1995 TAG: 9508120050
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 101 lines
When a Florida appeals court reversed Thomas Smolka's murder conviction this week, it engaged in a rare judicial event: In effect, the court second-guessed the jury.
Lawyers agreed Friday that while the result in the Smolka case is not unusual - appeals courts often overturn criminal convictions - the reasoning was.
A Florida state appeals court overturned Smolka's first-degree murder conviction because the evidence was insufficient to support a finding of guilt.
That means Smolka will not get a new trial. Had the court reversed on almost any other grounds, the case would go back for a new trial.
``It is a rare situation,'' said John Y. Richardson Jr., a Norfolk lawyer who represents Betty Anne Smolka's parents. ``Very few cases are overturned on the sufficiency of the evidence, but it can happen.''
Virginia Beach Commonwealth's Attorney Robert Humphreys agreed.
``That is very unusual,'' Humphreys said. ``It certainly happens - it's happened to me, as a matter of fact - but it's not something I deal with very well. What they (the appeals judges) are doing is second-guessing the jury, and that's not supposed to be their job.''
In 1993, a Florida jury convicted Smolka, a Virginia Beach businessman, of killing his wife Betty Anne two years earlier in Ocala, Fla., to collect $500,000 in life insurance.
On Wednesday, an appeals court ruled that the case against Smolka was based entirely on circumstantial evidence that was not strong enough for a guilty verdict.
``There is no doubt that the State's case against Smolka creates a strong suspicion that he murdered his wife,'' the court ruled. ``The number of suspicious circumstances is especially troubling. But suspicions cannot be the basis of a criminal conviction.''
The court also wrote, ``Because a duly constituted jury found Smolka guilty of murder after hearing the evidence, we have tried to be thorough in our review of the evidence and cautious in our decision. Nevertheless, a special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence.''
In this respect, Florida and Virginia law agree. When the evidence is circumstantial, it must be ``consistent with the defendant's guilt and inconsistent with any reasonable hypothesis of innocence.''
Richard G. Brydges, a Virginia Beach defense lawyer, said he was very familiar with the Smolka case. ``I thought it was a very specious case,'' Brydges said. ``It was a very, very circumstantial case.''
In that kind of case, Brydges said, the trial judge can refuse to let the jury decide guilt or innocence if ``the minds of reasonable men cannot differ.''
But, Brydges said, ``Once a jury speaks in a criminal case, appeals courts usually like to give that a high degree of efficacy,'' Brydges said.
In the Smolka case, the trial judge decided there was enough evidence to let the jury decide. The appeals court said this was a mistake.
Such a ruling is rare.
Usually when an appeals court overturns a conviction, it is because there was a mistake during the trial - evidence was improperly allowed, for example. In that case, the defendant is given a new trial.
Law professor James Duane of Regent University has studied cases like Smolka's and called it ``a real rarity.''
In a recent nationwide study, Duane looked for cases in which a federal appeals court reversed a conviction for insufficient evidence, despite the court's suspicion that the defendant was ``probably guilty.'' He found only three in the last 15 years. None was for murder.
``When a court reverses the conviction of someone, even where there's strong evidence of guilt, the temptation of the appeals court is to justify their decision with the public,'' Duane said. ``They will say, `We, too, think the defendant is probably guilty,' '' but the law forces the court to set him free.
That's a hard stance for a judge to take, even if it is correct, Brydges said. ``Some folks complain this takes away the right of the jury to decide the case,'' Brydges said.
But even if Smolka is freed, there may be a second trial to determine if he killed his wife.
That trial would be civil, not criminal, and it would be held in Norfolk's federal court. Soon after Betty Anne Smolka's death, her parents sued Thomas Smolka for $10 million, alleging that he wrongfully caused her death. That case is pending.
If there is a trial, the standard of proof would be much lower than in the Florida criminal case. In a civil case, Betty Anne's parents would have to prove Smolka was the killer by ``a preponderance of the evidence,'' not ``beyond a reasonable doubt.''
There is precedence for that, too.
In 1991, a civil jury in Virginia Beach ruled that Sylvia Gerber and her mother-in-law plotted to kill Gerber's husband, even though Gerber was never charged criminally. The mother-in-law was convicted of involuntary manslaughter after claiming it was self-defense.
It is not known what will happen to Betty Anne Smolka's $500,000 life insurance. That, too, may be decided in the wrongful-death lawsuit, Richardson said. ILLUSTRATION: [Color Photo]
Thomas Smolka was convicted in 1993.
by CNB