A defense lawyer for Jessica Smith, the mother accused of killing one daughter and injuring another, announced at a hearing Tuesday in Clatsop County Circuit Court he will request a gag order and change of venue for the trial next year.
William D. Falls said extensive media coverage, including video and photographs of his client in a jail jumpsuit and shackles, gives the public an unfair perception that Smith is dangerous.
Smith, 41, will be unable to get a fair trial in Clatsop County as a result, he said.
Falls’ proposed gag order would not allow the Clatsop County District Attorney’s Office, Clatsop County Sheriff’s Office, local police departments or the FBI to discuss the case with the public or media.
“We do not need the publicity. We do not need to try this case in the news,” he said.
In response, Clatsop County District Attorney Josh Marquis found Falls’ request unnecessary. Materials submitted between the defense and prosecution are public record, Marquis said, and the public and media are entitled to report on the information.
“Ironically, this case has probably received more trial in the metro-area where the defendant is from, than in Clatsop County,” Marquis said.
Judge Cindee Matyas did not make a ruling on Falls’ request Tuesday.
At the status hearing, Falls and co-counsel Lynne Morgan indicated mental health issues are going to be involved in the case. The defense lawyers submitted a notice last month intending to present evidence that Smith suffered a “disordered mental state” at the time of her alleged crimes.
Smith, of Goldendale, Wash., is accused of aggravated murder and attempted aggravated murder for allegedly drugging and murdering her 2-year-old daughter, Isabella Smith, and attempting to kill her 13-year-old daughter, Alana Smith, in a Cannon Beach hotel July 31.
Falls has not yet identified an exact diagnosis or found an expert to testify. He has submitted records on postpartum psychosis to the state, according to the District Attorney’s Office.
“This case, from all statements, indicates to me there was an implosion,” Falls said. “There are multiple ways I can tell a jury she had a mental breakdown.”
Judge Matyas set a deadline of Jan. 29 for both parties to find expert witnesses, including those in the mental health field.
Marquis questioned Falls’ intention of a mental health defense, since claiming a “disordered mental state,” is not common language used in state law.
“I filed this so they know that is probably the road we are going,” Falls told the court.
Again, considering the way Smith is perceived in court, her defense lawyers asked the court Tuesday to let Smith appear at the trial free of restraints and in street clothes.
At the trial, Smith can wear regular clothing, but will be fitted with ankle restraints with the capability to stun her.
For the remaining pretrial hearings, Smith will remain in her yellow jumpsuit — indicating she is a maximum security inmate — and ankle restraints and a chain around her waist that attaches to her wrists, as required by Clatsop County Jail.
Smith is currently in Tillamook County Jail, which contracts beds with Clatsop County.
Clatsop County Jail commander Lt. Shelley Morgan testified at the Tuesday hearing about two incidents of strange behavior from Smith while she was in custody.
Smith apparently requested a second mattress in Clatsop County Jail, claiming she had a back issue. She was given the mattress, but staff later determined she did not need it. When the mattress was removed, Smith claimed she could not walk and crawled on the floor saying she was paralyzed.
Smith did the same thing in Tillamook County Jail, requesting a second mattress and crawling on the floor when it was removed, Morgan testified.
In addition, Marquis and his co-counsel Dawn Buzzard said at the hearing they received a report of Smith flushing her food down the toilet in an attempt to starve herself and go to the hospital.
Despite the odd behavior, Smith’s defense counsel pointed out that she has not attempted to escape or acted violently while in jail.
During the three-hour hearing Tuesday, Smith’s defense lawyers brought up their motion to bar the death penalty if Smith is convicted. The lawyers noted in their motion that social norms have changed regarding the death penalty, particularly for those with a severe mental illness.
Marquis has not decided if he will seek the death penalty, but said in court Tuesday that it cannot be barred so long as it is legal in Oregon.
“This is a Hail Mary pass to ask this court to go against the flow of state and federal law,” Marquis said.
Another request from Smith’s lawyers focused on receiving more evidence from the state, especially communication between Smith’s ex-husband Greg Smith and a woman believed to either be his girlfriend or wife.
“That is information that is important in our case,” Falls said.
Judge Matyas set another status hearing for 10:30 a.m. Aug. 28. Additional motions and requests will have to be filed by Dec. 31, for hearings scheduled in February. The trial date remains June 28, 2016.
“I intend to be ready for the trial date this court has set for next year,” Falls said.