Kevin Smith fought the Orleans Parish District Attorney’s Office over a drug charge for more than seven years before the case was finally dismissed because his right to a speedy trial had been violated.
In the end, though, Smith found out there is more than one way to land in prison. After New Orleans prosecutors presented their case on the drug charge to the state Parole Board, his parole from an earlier conviction was revoked.
Smith, 51, is now scheduled to remain behind bars until 2022, a development that has left his defense attorneys crying foul.
Civil rights attorneys, who are raising questions about delayed justice in Louisiana, last week filed public records requests to find out the number of inmates in the state who are held behind bars for years without a trial.
Smith’s case highlights how a defendant’s right to go before a jury can ultimately be made irrelevant by the state’s parole regulations.
Making sense of the Smith saga involves rewinding the tape all the way back to 1992, when he was convicted by a jury of possession with intent to distribute cocaine. A judge handed him a 30-year sentence as a habitual offender.
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 t…
Smith was paroled in August 2007, but his release carried the usual caveat that he had to stay out of trouble. Authorities alleged he was back to his old ways within two years. They said that on three occasions between October 2009 and February 2010, he was caught selling crack cocaine to a paid confidential informant for the Drug Enforcement Administration.
Smith was arrested in February 2010. His trial was held up for more than seven years by delays requested by both the defense and prosecution as well as by questions about his mental health and by Hurricane Isaac.
The trial also was put off because the stakes were so high for Smith. Given his status as a habitual offender, he could have faced from 20 years to life in prison if convicted. He wanted to go to trial, but his defense attorneys worried about how they could resolve the case without having Smith’s parole revoked.
“There were a number of constitutional issues and procedural issues that we were dealing with,” Criminal District Court Judge Tracey Flemings-Davillier said last year of the delays in the case. “We have to ensure that the defendant gets his due process.”
The District Attorney’s Office said Smith repeatedly rejected a plea deal that could have given him a 10-year sentence with credit for time served. If he had taken the deal, it’s likely that he would have been released by now.
Eventually, the clock ran out on the cocaine charge. In November, the state 4th Circuit Court of Appeal ordered the charge dismissed on the grounds that Smith's constitutional right to a speedy trial had been violated.
His time in detention did not end there, however. Although his criminal case was over, Smith still had to address the state Parole Board. In June 2015, the board had found probable cause for a hearing on revoking his parole. The hearing was held this February.
At the hearing, Assistant District Attorney Andre Gaudin told the board about the case he would have presented at a trial over Smith's alleged drug dealing, including cocaine sales to the confidential informant.
The District Attorney's Office insists that it was obligated to appear before the board and that it did not present its case only in an effort to get Smith more prison time.
But Smith's attorneys protested that a judge never would have allowed the information about Smith's drug selling to be used at a trial, because it’s unlikely the confidential informant would have testified.
“Mr. Andre came in from the DA’s Office and told them what a wonderful case they had against him,” defense attorney Martin Regan said in a February interview. “We went to court over 70 times and you couldn’t try him? Rubbish.”
In the end, however, the board found Smith guilty of a technical violation: He had failed to update his address with his parole officer.
Smith’s lawyers said it was a girlfriend’s house, not his permanent address. The District Attorney’s Office said all the drug sales had taken place at the Gert Town apartment.
The board voted to revoke Smith’s parole. His new release date is in March 2022, according to the state Department of Public Safety and Corrections. He can apply for parole again in February 2019.
Regan said the parole hearing left him “frustrated beyond anything in my 40-year career.” Regan alleges that the District Attorney’s Office used the revocation hearing as a second chance to punish his client.
The District Attorney's Office has a different view. Prosecutors said Smith brought his troubles upon himself and that the decision to revoke his parole was up to the board.
"We disagreed with the appellate court's decision to dismiss the case, but the parole board's decision was clear under the law," District Attorney Leon Cannizzaro said in a statement. "It was this defendant's choice to put his early freedom at risk through continued criminal conduct. The terms of parole are quite simple and clear. And when someone receives the gift of early release on parole, they bear the responsibility to abide by its terms."
Meanwhile, Smith may make another bid for release. Christen DeNicholas, another of his attorneys, said that in her interpretation of the law, Smith should have been given a 90-day stint back in prison for the address violation, not four years. She said her client has a case for challenging the length of his parole revocation.
“It kind of seems a little unfair to the people who are footing the bill for Kevin’s incarceration,” she said.