When Kevin Smith was jailed on a drug charge in New Orleans in 2010, Blockbuster was still renting DVDs and President Barack Obama was still trying to pass his signature health care bill.
Smith’s case never went to a jury. On Monday, 2,832 days after he was locked up, Criminal District Court Judge Tracey Flemings-Davillier ordered Smith’s release, bowing to an appeals court ruling that prosecutors had violated his right to a speedy trial.
Her decision represents an extreme example of how slowly the wheels of justice can grind in Orleans Parish while defendants sit in jail. All sides involved in the complicated saga point fingers at each other for the delays. No one can guarantee it won’t happen again.
Smith, 51, who is supposed to go free within a few days, has served more time in custody than any other New Orleans inmate awaiting trial for a nonviolent crime.
“If you’ve been in jail for right at eight years on the same charge and it won’t go to trial, that’s injustice,” said Smith’s cousin, Michael Smith.
A review of court records shows that Kevin Smith’s day in court was delayed by a hurricane, questions about his mental competency and requests from lawyers on both sides. His court dockets span 161 entries.
The delays astounded Rafael Goyeneche, president of the Metropolitan Crime Commission, which frequently criticizes the winding road to trials at Criminal District Court.
“I think it’s an embarrassment to the criminal justice system,” Goyeneche said of the Smith case.
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Smith’s saga behind bars began on Feb. 11, 2010, when State Police and federal drug agents said they discovered baggies of crack cocaine inside a safe in his Carrollton residence.
As a parolee with a previous drug charge to his name, Smith was looking at a sentence of 20 years to life if convicted as a habitual offender, according to one of his lawyers.
“It wouldn’t have just been 'Time served, go about your day,' ” said defense attorney Christen DeNicholas, who has had a role in the case since this spring. "It would have been a very big deal for him."
The parole issue also prevented Smith's pretrial release on a $50,000 bail, DeNicholas said.
Smith’s trial on a single charge of felony possession with intent to distribute crack cocaine was set for Aug. 9, 2011. The state halted the trial after seven jurors were picked. Prosecutors said they had just discovered new information against Smith that should have been handed over to his defense team.
The District Attorney’s Office dismissed the original charge against Smith and brought a new one the next day, restarting the statutory two-year deadline to try the case.
Smith’s next time before a jury was set for Aug. 29, 2012. Hurricane Isaac hit the Louisiana coastline on Aug. 28 and shuttered the New Orleans courthouse.
Court was closed for only a few days. However, prosecutors claimed their two-year deadline to bring Smith to trial was again reset under a state law passed after Hurricane Katrina.
In November 2012, the case — which had been assigned to Judge Robin Pittman — was transferred to a different section of court. But for reasons that remain unclear, it did not land on the desk of newly elected Judge Flemings-Davillier until May 2013.
Over the next three years, Smith considered and rejected a 10-year plea deal offer.
“He could have come home as early as January of 2015,” said defense attorney Martin Regan, whose firm handled the case from the start. “There’s a man who just steadfastly said, 'I don’t care, you can keep me. I’m not guilty, I want a trial.' ”
Smith's mental competency was examined at Regan's request in 2014 and he was found sane. He filed a motion on his own behalf to go to trial, but his attorneys ultimately told the court they weren't ready.
The case stumbled forward again and again. Lawyers on both sides asked the judge for delays. Finally, in December 2016, Smith filed another motion on his own behalf seeking to quash his charges. He argued that his constitutional right to a speedy trial had been denied.
This time, Smith’s lawyers took his side. At a March 22 hearing, DeNicholas asked the judge to dismiss the case.
Flemings-Davillier ruled the next month that Hurricane Isaac and Smith’s mental competency hearing had justifiably pushed his deadline for trial back by four years. She denied the motion to quash the case.
Smith's lawyers took the case to the 4th Circuit Court of Appeal. In a June ruling, a three-judge panel ruled in Smith's favor and said he should go free. The court found that Flemings-Davillier was wrong in adopting prosecutors’ argument that the sanity hearing rolled back the deadline for trial by another two years.
Prosecutors appealed the decision, but the Louisiana Supreme Court declined to hear the case last week.
On Thursday, Smith ran into another roadblock: Flemings-Davillier said she would allow prosecutors to argue again that Smith should remain in jail. But after a Monday meeting in her chambers, prosecutors dropped their opposition to quashing the case.
“At the end of the day, all those continuances that may not seem like a big deal at the time, they do add up. In Kevin Smith’s case, they added up to eight years,” DeNicholas said.
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Goyeneche said there was plenty of blame to go around for a straightforward drug case that should have been tried quickly. Still, he believes the judge could have brought it to its conclusion sooner.
In a report issued earlier this year, his organization ranked Flemings-Davillier in a tie for last place for “judicial efficiency” at the New Orleans criminal courthouse.
“The reason that there’s a judge involved is the judge puts the foot down and decides that one of the parties, one of the sides is being dilatory in weighing the rights of the state versus the suspect,” Goyeneche said.
Flemings-Davillier, who inherited a massive backlog of cases when she became a judge in 2013, has pointed to numbers that show she closes more cases than any other judge. She said she worked diligently to protect Smith’s rights.
“There were a number of constitutional issues and procedural issues that we were dealing with,” she said. “We have to ensure that the defendant gets his due process.”
She said the case was complicated by the many motions Smith filed on his own behalf along the way and by his shifting attorneys. Four separate lawyers from Regan’s firm represented him along the way.
The judge said everything from the hurricane to Smith’s own motions to the sanity questions conspired to extend the case.
“I’m not going to say it can’t happen again, but this one had so many factors,” she said.
Others cast blame along a predictable dividing line.
District Attorney Leon Cannizzaro said he was satisfied with the judge’s decision in April that his office’s two-year deadline for prosecution had not passed. Still, he said it was “absolutely ridiculous for a narcotics case to last seven years.”
“How do I feel about it? Why didn’t the case go to trial? Well, because the defendant did a masterful job of continuing the case over and over again,” Cannizzaro said.
His assertion prompted an angry response from Regan. He said the 4th Circuit found that prosecutors blew their deadline to try the case.
“They knew they could not convict him, so the matter drug on and on and on,” Regan said. “Mr. Cannizzaro, do not blame the defense for this.”