THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, April 13, 1996 TAG: 9604130326
SECTION: FRONT PAGE: A2 EDITION: FINAL
SOURCE: STAFF REPORT
LENGTH: Medium: 59 lines
Before the year is out, another jury could be asked to decide if Thomas Smolka killed his wife in Ocala, Fla., in July 1991.
The last time a jury decided the question was in 1993, when Smolka was convicted of murdering Betty Anne Smolka and sentenced to life in prison. That conviction was overturned by a Florida appeals court last year, and Smolka was released from prison in December.
This time, the trial would be held in Norfolk, not Ocala. And the stakes would be different. It would be a civil trial, not a criminal one. Smolka, who is not subject to further criminal charges in the case, would not be found guilty or innocent, and he could not be sent to prison.
Instead, if he lost, Smolka could be ordered to pay monetary damages to his dead wife's estate and forfeit rights to more than $250,000 in benefits on her life-insurance policy - a policy he bought.
But if he won, the money would be his.
The prospect of such a trial is becoming much more likely, say lawyers representing the two sides. Both say a settlement seems improbable.
``We're light years apart,'' Richard Brydges, who represents Smolka, said Friday.
``We are nowhere near,'' said James C. Lewis who, along with Glenn Croshaw, represents the estate of Betty Anne Smolka. ``It seems likely he's going on trial for murder again.''
The trial would be held in Norfolk federal court, where Willis Stephenson, Betty Anne Smolka's father, filed a wrongful death suit against Smolka in 1991. The suit accuses Smolka of killing his wife and seeks $10 million in damages.
Lewis said the insurance money is being held in trust pending the outcome of the dispute.
Brydges noted that there are strong parallels between the Smolka case and the O.J. Simpson case: a slain wife, a husband accused in the killing but later acquitted or freed, a bitter dispute between the accused killer and the slain wife's relatives, a wrongful death suit, questions of custody of children.
A civil trial for Smolka would be a virtual replay of the criminal trial and could last several weeks, Brydges said. Smolka's criminal trial lasted three weeks.
But there will be at least one key difference: the burden of proof in the criminal trial was that Smolka had to be found guilty ``beyond a reasonable doubt.'' In order for Betty Anne Smolka's estate to win the civil case, its lawyers have only to demonstrate that a ``preponderance of evidence'' points to her husband as the killer.
The case will have no bearing on who ultimately gets custody of the Smolkas' three children. They now reside with Stephenson and his wife, their legal guardians. Smolka has not made any official move to regain custody.
KEYWORDS: MURDER CIVIL TRIAL by CNB