THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, October 8, 1995 TAG: 9510080037
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
DATELINE: WILMINGTON, DEL. LENGTH: Long : 261 lines
WILMINGTON, Del. - The doorbell rang about 6:30 p.m., just as the family was about to sit down at the kitchen table for hamburgers. Three police officers stood at the front door of the two-story Colonial home in a shady cul-de-sac.
What happened next is forever seared in Valerie Whipple's mind.
``It was scary,'' she said. ``All of a sudden, police officers with guns came through the front and side door.''
The lead officer at the side door had his revolver drawn.
They had come for her brother, Thomas E. Smolka, and they had warrants charging the Virginia Beach lawyer and developer with killing his wife four months earlier.
Smolka was working in an office in the basement. He submitted quietly. His 11-year-old son, Jeffrey, watched in terror as New Castle County Police led his father away in handcuffs. Outside, police pulled over the Whipples' teenage daughter, Jennifer, as she drove near the family's home and held her while they arrested her uncle inside.
Jeffrey Smolka's aunt insisted that police let the boy kiss his father goodbye. Then, Smolka and the men with the guns were gone. It all took about 10 minutes.
That was Nov. 20, 1991. It was just the beginning.
Police then went to the school gym, where Smolka's 9-year-old daughter, Katherine, was playing basketball, and picked her up. She, her brother and their 3-year-old sister went to the police station briefly, then they were turned over to their maternal grandparents.
Smolka was accused of plotting the death of his wife, Betty Anne, in a case that sent shock waves from their home in Virginia Beach to Ocala, Fla., where they owned a hotel, and where her body was found.
``We honestly felt the thing was going to blow over because there simply wasn't any evidence linking Tom to the crime,'' said William Whipple III, Smolka's brother-in-law. ``Nobody was expecting the arrest, and it wasn't until the arrest that we realized this thing wasn't going to go away and that we were going to have to deal with it.''
In the years since, the family has experienced a swirl of media attention and public outrage, a high-profile trial that resulted in Smolka's conviction and a life sentence, and recently a reversal of Smolka's murder conviction by a Florida state appeals court and another public outcry.
Smolka's family members for the most part have been silent since the arrest. But recently Smolka's mother, three sisters and a brother-in-law agreed to talk about what those years have been like.
They are a proud and proper family. Their dress is conservative. The room where they have gathered has thick, rich carpeting and formal furnishings, and is meticulously kept. They are private; uneasy, but welcoming.
``We have felt throughout this time that Tom was innocent,'' William Whipple said in an interview at his home in a neighborhood with big houses and sprawling lawns outside Wilmington. ``The evidence isn't there. We know it isn't there, because we sat there and we listened. The case should never have gone to the jury in the first place.''
The three-judge panel ruled that the circumstantial nature of the case did not justify the conviction.
``There is no doubt that the state's case against Smolka creates a strong suspicion that he murdered his wife,'' the judges wrote in a 30-page opinion issued Aug. 9. ``The number of suspicious circumstances is especially troubling. But suspicions cannot be the basis of a criminal conviction.''
Meanwhile, Smolka remains in Union Correctional Institute, a maximum-security prison in Raiford, Fla., while prosecutors seek a rehearing of the ruling.
Smolka's lawyers say that the ruling is thorough and that there is no reason for further review. They cite language from a similar case in 1989, Wilkes vs. state: ``Should a conviction be allowed to stand on this evidence (or rather lack of evidence), every citizen would be at risk whenever an acquaintance is murdered under mysterious and unexplained circumstances.''
The ruling is proof of what they knew all along, William Whipple said.
``We certainly feel vindicated, because up until this point there didn't seem to be anybody who was willing to listen to us and to look at this case for what it is,'' he said.
He and other family members were not surprised by the anger of Virginia Beach residents, or the door-to-door and letter-writing campaigns they launched to protest the ruling reversing Smolka's conviction. As many as 50 letters were mailed to the Florida attorney general's office, and petitions bearing the names of hundreds of people in Hampton Roads angered by the ruling were sent to Florida officials.
``Many people from Virginia wrote to express anger and outrage at the ruling,'' Florida Assistant Deputy Attorney General Carolyn Snurkowski said Friday. ``We explained that we thought the opinion was wrong and we would take it to the state Supreme Court if necessary.''
Smolka's family believes the community's anger is misplaced.
``After four years, they don't know who killed Betty Anne Smolka,'' William Whipple said. ``We're as angry about her death as anyone else, and would love to see the real killer brought to justice.''
One of the hardest things for the family during the past four years was to survive the intense anger directed at Smolka and them.
``We weren't used to people hating,'' said Carol Zaruba, one of Smolka's sisters, who lives in Newark, Del. ``We couldn't understand how people could be so hateful.''
``It's spiteful,'' Kaye said. ``Because we are his relatives, we are included in this web.''
``Because we are relatives, we are (perceived as) cold, calculating people,'' said Valerie Whipple, finishing her sister's thought.
``They should look for the person who murdered this poor girl,'' Zaruba said. ``Can you imagine how afraid she must have been?''
Smolka's legal defense has cost hundreds of thousands of dollars. His mother sold her house, gave up her life savings and moved in with her daughter Jeanne to help cover the bills. Other relatives also made financial sacrifices.
``We could have relied on a public defender,'' William Whipple said. ``But a public defender up against the prosecutor in Ocala, with all the power they were putting behind that case, wouldn't have had a chance.''
Smolka was part owner of the Ocala Radisson Inn when his wife disappeared on July 10, 1991. He had sent her to a Phar-Mor store to buy light bulbs.
Betty Anne's rented van was found the next day, its interior spattered with blood. Three days later, roller skaters found her body. She had been shot twice in the chest.
Prosecutors never provided physical evidence to tie Smolka to the killing. None of the fingerprints lifted from the minivan matched Smolka's. A semen stain found in the van did not match Smolka's blood type, and prosecutors never explained where it came from. A firearms expert could not find any gunpowder in Smolka's briefcase. No murder weapon was found.
Prosecutors never established the time of the murder or provided evidence that Smolka was at the scene of the crime, William Whipple said.
In making their case, prosecutors used circumstantial evidence, such as grass seed that could have linked him to the crime scene, and focused on Smolka's desperate financial situation: He had recently insured his wife's life for $500,000 and acted suspiciously after her death.
Smolka's family is convinced he did not get a fair trial.
``It wasn't so much some judicial ruling,'' William Whipple said. ``It was more the whole tone of the proceeding. If everybody in town has read repeatedly of the story, you just don't start that trial on a level playing field.''
They described the environment in the town as super-heated, saturated with publicity since the day a pretty woman with a glamorous lifestyle disappeared.
Courtroom spectators came up to them after the jury deliberated 14 hours and found him guilty and said they could not believe the panel had heard the same evidence, they said.
``His life was put under a magnifying glass,'' Kaye said. ``How many people's lives could withstand that?''
William Whipple says authorities made a basic mistake with the case.
``They didn't spend five minutes looking at anybody but Tom,'' he said. ``I don't blame them for thinking Tom was a suspect. He was a logical suspect for a variety of reasons. They didn't come up with anything, and it didn't dawn on them that not coming up with anything might mean they had the wrong person.''
Most of the family members said they never entertained the thought that the man they affectionately call ``Tommy'' might be guilty of the killing.
``Never,'' said his mother, Anna Smolka, 85. ``He's too gentle and kind. He won't even touch his children, let alone kill somebody.''
William Whipple, a retired tax lawyer with DuPont, closely examined the evidence and statements in the case, and said in doing so he intellectually considered the possibility that his brother-in-law might have committed the murder. But evidence linking Smolka to the crime just wasn't there, he said.
There was some evidence pointing to the possible involvement of a local rapist named William Rodney Spencer, but the judge refused to allow it.
``I have driven myself crazy trying to figure out what really happened here,'' William Whipple said. ``I can't say I know. There are probably half a dozen people who could have been more thoroughly investigated. Having said that, the killer could be someone we don't even know about.''
The Smolka family found out about Betty Anne's disappearance a day afterward when Smolka called his sister Carol and said he couldn't find her.
Carol kept calling the hotel and trying to talk to Smolka, but he was out looking for his wife, she said. Because of all the media calls and confusion, Zaruba said she decided she needed a password to make sure that employees at the hotel recognized her and would tell her the latest news.
Zaruba began calling and saying: ``This is Daisy.''
Already their lives were turning into something out of a movie.
And already Smolka's actions were focusing attention on him. He wasn't eating or sleeping, the family said. And his behavior was strange. After an inital five-hour interview with police, he refused further interviews. He washed his hands when police said they wanted to do a test to see if he recently had fired a gun. He also left Ocala and made repeated calls to defense lawyers.
``I think he was in shock and trying to get away,'' William Whipple said. ``I think that's one of the reasons he became a suspect.''
In the months after Smolka and his children moved in with family in Wilmington, Del., it seemed as though relatives' homes were under surveillance.
``You knew they were there,'' Zaruba said. ``Everybody knew that we were being watched.''
Family members suspected their phones had been tapped. The day of Smolka's arrest, Valerie Whipple was stopped by police on her way home from grocery shopping. They told her they were investigating a burglary and asked to look in her trunk.
Smolka's family speaks fondly of Betty Anne, describing her as animated, fun-loving and feisty. The women talk about the shopping trips they shared, about seeing movies three at a time, about how Betty Anne never failed to bring a gift to each of her children when she went away.
She was happy with her life and with the man she married in 1979, they said.
They retrieve a picture of the smiling, petite, honey blonde standing with her husband, who towers over her at 6-foot-1, and their older daughter - all dressed for a niece's wedding on Dec. 27, 1990.
In June 1989, Smolka gave his wife a surprise new home, they said.
The spring before she was killed, Smolka sent her and two girlfriends on a Caribbean cruise as an early gift for his wife's 40th birthday on May 21.
``Does that sound like someone who's going to murder his wife in a couple months?'' Kaye asked.
Despite the family's portrayal of a harmonious couple, court papers document arguments between the two and quote a painting contractor as hearing Smolka say in 1989, ``she'll be dead,'' and ``someday she'll be out of my life.''
Smolka's family contends that as private as he was, even if he had such thoughts about his wife, he would never have revealed them to a stranger.
The adversity has worked to pull an already close family even tighter. Smolka calls a different sister every night and talks with his mother about twice a week in 15-minute collect calls from prison.
He occasionally writes letters talking about sports events and recounting his life in prison in a style reminiscent of a ``M*A*S*H'' episode.
But for all the closeness in their family, the greatest sadness in recent years is the loss of contact with Smolka's three children, who live with their maternal grandparents.
``Maintaining communication with the children became an impossible situation,'' said William Whipple. ``We just had to back off.''
The family continues to send cards and letters, but they don't know whether the children get them.
The last correspondence the Whipples received was a Christmas card in 1991. The last time any of the family saw one of Tom and Betty Anne's children was in June 1992 when they took the younger daughter to lunch at Waterside.
``We've missed four years of their lives,'' Kaye said. ``They've missed a grandmother and aunts and uncles and cousins and the fun they could have had.''
The family is unsure what Smolka's release might mean for the three children. Betty Anne's family already has said they will fight efforts by Smolka to regain custody.
``Tom cares about those children more than anything in the world, but he's also aware that they probably don't know which end is up right now,'' William Whipple said. ``Certainly Tom wants to see his children, and we hope that when the time comes they'll want to see him as well. We just don't know how it's going to work out.''
Over the years, William Whipple said he always felt he was walking a fine line when he talked to his brother-in-law. It was easier to do before the trial, because he was so convinced that the jury would find in Smolka's favor, he said. Once Smolka was convicted, the task became arduous.
``I wanted to keep his spirits up, but I didn't want to promise him something I couldn't deliver,'' he said. ``It's the most humbling thing of this whole experience. You finally realize you're not in control. You're in a world that's bigger than all of us. All you can do is your best.''
The family said Smolka was determined that one day he would be freed.
``He wasn't going to settle for being there,'' Kaye said. ``We never said `If you get out,' we always said, `When you get out.'''
He stays busy in prison, reading, working in the law library, helping other prisoners draft court papers. He even devised a grounds for appeal for a death-row inmate at his prison.
For now, family members count the days and weeks before they may be reunited.
``He can't wait to get out,'' William Whipple said. ``He's nervous and excited and all the things that you might imagine.''
William Whipple has even picked out the restaurant near the prison, where he'd like to go once it's over.
``I just fantasize about that - going to that prison and walking up and bringing him home,'' he said. ``I don't care what time of day or night it is.'' ILLUSTRATION: Color photos
Since November 1991, Virginia Beach lawyer and developer Thomas E.
Smolka, left, has been arrested, tried, convicted and sentenced to
life in prison for the murder of his wife, Betty Anne, right, who
was found slain in Florida. In August, a Florida state appeals court
overturned the conviction. Smolka remains in prison while
prosecutors seek a rehearaing of the ruling.
KEYWORDS: MURDER-FOR-HIRE ARREST CONVICTION FAMILY by CNB