FROM OUR PRINTED AUG. 1, 2022 EDITION:
by Lonnie Brennan
“The true design of all punishments being to reform, not exterminate mankind.” Part 1, Art. 18, N.H. Constitution.
Pamela Smart, age 54, has spent the last 32 years of her life in prison. Hardly an adult living in New Hampshire (nor beyond the Granite State) has forgotten the Pamela Smart trial. Or rather, they may have forgotten the details, but the media-generated frenzy that filled the airwaves, the nightly news, the newspapers, the celebrity shows for a year pre-trial and long after remains a vague memory for many. Smart’s image was set by the media: a killer. An evil 21-year-old teacher (she wasn’t) who should spend her life behind bars.
The Killers
In 2003, Raymond Fowler was paroled from prison. In 2005, Vance “JR” Lattime was paroled from prison. In 2008, William “Billy” Flynn was paroled from prison. In 2009, Patrick “Pete” Randall was parolled from prison. Together, in the spring of 1990, these four close friends drove from Seabrook, N.H. to Derry, N.H. where Flynn and Randall put a knife to the throat of Gregg Smart, then put a gun to his head and pulled the trigger.
Their motive? Billy was in love with Pamela Smart. She had an affair (sex) with Billy, and then the he-said, she-said began. He testified that she put him up to it. He got a reduced sentence, along with his buddies, and Smart got sent away forever. He was a tall student who looked years older than his chronological age and had a smile and persona that reminded many of a young Paul McCartney. Billy’s friends were thugs and drug users, quite familiar with the prison system from past activities.
REQUEST FOR A HEARING ON COMMUTATION DENIED
Moving to the present, on July 22, 2022 New Hampshire attorney Marc L. Sisiti filed a “Petitioner’s Brief in Support of Petition for Writ of Mandamus” with the New Hampshire Supreme Court. Sisti’s client is the media-created celebrity Pamela Smart.
New Hampshire attempted to get rid of its celebrity problem by abruptly shipping Smart off to a maximum-security prison in New York.
Sisti’s argument, summarized in 18 pages and supported by a total of 443 pages poignantly details that Smart has a right to have her petition for commutation considered, that the N.H. Executive Council’s decision to deny a hearing was arbitrary, and that the courts should now intervene, as given the Council’s failure to follow the law. Smart is left with no alternative means to challenge the Council’s decision, and the state’s constitution as well as established law dictate that Smart is entitled to have a hearing.
Excerpts from the Petition to the State of New Hampshire Supreme Court
The following are taken directly from Atty. Sisti’s filing.
STATEMENT OF THE CASE
Ms. Pamela Smart is currently serving a legislatively mandated life-without-parole sentence for her conviction as an accomplice to first degree murder in 1991. On August 17, 2021, she submitted a Petition for Commutation to the Office of the Attorney General in accordance with N.H. RSA 4:21. On March 23, 2022. The Governor and Executive Council had a meeting where Ms. Smart’s petition was on the agenda. At that meeting, the Executive Council voted to deny consideration of whether or not to grant Ms. Smart a hearing on her petition, therefore denying Ms. Smart’s request for commutation of her sentence. By refusing to even consider the question of whether or not to grant such a hearing, the Governor and Council denied her the opportunity to demonstrate her “fitness to return to society without being a threat to it”.
State v. Farrow, 118 N.H. at 305. However, this decision was made arbitrarily as there was no consideration of the petition or its contents at the meeting where Ms. Smart’s request was on the agenda.
STATEMENT OF FACT (excerpts):
On August 16, 2021, Counsel for Ms. Smart submitted a Petition for Commutation to New Hampshire Attorney General John Formella, along with letters, documents, and a memorandum in support of that petition. Exh. A. The filing included a 23-page petition addressed to the Governor, Executive Council, and the Office of the Attorney General. Id,
Appendix, Part 1. It also included a Memorandum in Further Support of Pamela Smart’s Petition for Commutation. Id, Appendix, Part III.
Ms. Smart’s petition was submitted with Letters in Support of Pamela Smart’s Petition for Commutation. Id., Appendix, Part 1-11. It contains numerous letters, some written to previous governors, from various corrections officials, clergy, inmates, academics, counselors, friends, family, and others supporting the commutation of Ms. Smart’s sentence. Id. Over 30 of these letters were submitted since 2020. Id.
Also attached to the petition are Documents in Support of Pamela Smart’s Petition for Commutation. Contained therein are copies of two Master’s Degrees (M.A. in English/M.S. in Law) and a Certificate of Ordination, noting that Ms. Smart is an ordained minister. Id., Appendix, Part II, B-8-11. In addition, there are dozens of other documents related to her individual achievements as well as numerous other programs she completed or in which she was involved. Id., B-12-76.
The documents supporting her request include Inmate Progress Reports for Ms. Smart ranging from May of 1999 to August of 2020. Id., B-78-87. In each of the reports, Ms. Smart received the highest rating of “Excellent” in all of the categories assessed. Id. She similarly received the highest ratings possible in regard to her Educational Evaluations. Id., B-88-91. While volunteering with the prison’s ministerial services, she received mostly scores of 5 (Excellent), though there were a few instances where she received a score of 4 (Good). Id., B-92- 97.
Also included are multiple “Honor Floor Reference Forms”. Id., B-98-101. Each form states that “[a]ll applicants must exhibit a definitive desire to improve, take the necessary steps toward rehabilitation, and portray an outstanding degree of program participation.” Id. It further states that “[i]n addition, all applicants are to behave and act in at a level well above the norm.” Id.
On March 23, 2022, “[t]he Governor and [Executive] Council on motion of Councilor Gatsas, seconded by Councilor Stevens voted to deny consideration of whether the petition of Pamela Smart (age 54) requesting a commutation hearing for the offense of Accomplice to First Degree Murder should be granted.” Exh. B, Governor and Executive Council Minutes, March, 23, 2022, p. 17, Item No. 124. (emphasis added). A recording of the meeting can be found on the Secretary of State website at https://sos.nh.gov/administration/miscellaneaous/governorexecutive-council/2022-meetings/ . (hereinafter Executive Council Audio, ECA).
The discussion related to Ms. Smart’s request lasted less than two and one-half minutes.
ECA, 1:52:20-1:54:31.
The Governor began by asking “Do I have a motion to accept or deny the pardon—, uh the commut—, the commutation hearing request for Pamela Smart. Item 124.” Id., 1:52:25.
Council Members Theodore Gatsas and Janet Stevens both moved to deny the hearing request. Id., 1:52:31. [The transcript of their brief discussion is included in the filing.]
SUMMARY OF THE ARGUMENT:
The New Hampshire Constitution Supreme Court found that life without parole sentences are not sentences of extermination, and thus violate the state constitution, because “the prisoner has many opportunities to improve his life, culminating with a pardon if he can demonstrate to the Governor and Council his fitness to return to society without being a threat to it.” State v. Farrow, 118 N.H. at 305. The constitution dictates that the Governor, with advice from council, has the authority to grant such relief. Art II, Part 52, NH Const.
Ms. Smart submitted a petition for commutation of her life sentence. By voting to deny consideration of Ms. Smart’s request for a hearing, the Governor and Executive Council denied her the opportunity to demonstrate her fitness to return to society. The Council engaged in no discussion of the materials contained in Ms. Smart’s petition. It did not address the numerous documents submitted related to her rehabilitation. There was no discussion of the fact that the other co-defendants, who were physically present at the scene and committed the murder had been out for almost seven years at the time of the March 23, 2022, meeting. Thus, the Governor and Executive Council did not consider Ms. Smart’s fitness to return to society and not pose a threat to the community. Instead, the Council refused to even consider Ms. Smart’s petition based on her status as perhaps the most notable criminal defendant in New Hampshire history.
Ms. Smart is entitled to mandamus relief in this case as she has the right to be heard on her petition and there is no other adequate remedy available to address this denial. The Supreme Court held that sentences such as hers are constiutional as she may be able to receive a pardon if she can demonstrate her fitness to return to society. Farrow 118 N.H.at 305. Thus, she has a right to demonstrate that fitness to those who may grant her a pardon or other relief from her life without-parole sentence (i.e., commutation). Meanwhile, there are no avenues for Ms. Smart to appeal the Council’s decision. Neither the legislature nor the Governor have provided processes by which someone in Ms. Smart’s position may seek to have such decisions reviewed, reversed or otherwise re-visited. As such, this Court provides the only potential path for Ms. Smart to seek any remedy for the arbitrary decision made by the Governor and Executive Council.
EXCERPTS FROM THE ARGUMENT:
The Executive Council’s decision was arbitrary.
The Council’s decision to deny consideration of whether to grant a hearing on Ms. Smart’s petition was made arbitrarily as it was based on personal and political feelings instead of her fitness to return to society. For Council Member Warmington, there was no indication that any of the other members even read or reviewed the petition. Even then, there was no discussion from Council Member Warmington as to the petition’s contents and why it did not warrant further consideration. While the Council is not required to reach a certain outcome in situations such as this, Ms. Smart has a right to have her petition considered in good faith.
In the present case, the Governor and Executive Council failed to properly address Ms. Smart’s petition for commutation. The Governor and Council devoted less than three minutes to the question of whether or not to grant her a hearing on that petition. See ECA. Aside from Councilor Warmington’s assertion that she read all the materials, there was no discussion of the petition or any of its contents. Id. Instead, the Council voted to deny even considering the petition. By refusing to consider the petition, the Council prevented Ms. Smart from demonstrating her “fitness to return to society without being a threat to it.” State v. Farrow. 118 N.H.at 305.
Council Member Warmington stated that “a commutation request is… an extraordinary remedy… and due under extraordinary circumstances… which I do not find here.” ECA, 1:53:25- 1:53:32. While it is hard to dispute that commutation is an extraordinary form of relief, the request itself as well as the request to be heard on it, are not relief but merely steps that must be taken so that relief may be granted. More importantly, her assertion that such relief is only warranted ”under extraordinary circumstances … which [she] did not find [in Ms. Smart’s petition]” is in conflict with any objective reading of the petition.
Council Member Stevens’s comments indicate that her decision was based, not on Ms. Smart’s current fitness to return to society, but on the crime for which she was convicted over thirty years ago. Most telling is Council Member Steven’s assertion that there is “no argument or evidence that rises to the level of granting a commutation request for Pam Smart.” ECA, 1:53:33-1:53:38. Her statement had nothing to do with Ms. Smart’s fitness to return to society. It was a blanket statement that Ms. Smart should never be granted a commutation request, let alone a pardon. It shows that the Council Member based her decision, at least in part, on why Ms. Smart was separated from society then instead of her fitness to return to society now.
[The argument continues for multiple pages, detailing the arbritary and not-in-compliance with the law actions and statements of the Councilors.]
REQUEST FOR ORAL ARGUMENT:
Ms. Smart requests fifteen (15) minutes of oral argument before the full court.
Editor’s Note:
The full filing is available at www.BostonBroadside.com/PamelaSmart. Fifteen minutes of oral argument after 32 years served, to decide if the law should be followed, but, as Smart is a media-created celebrity, will the law apply to her?
