Accused tire slasher and former congressional candidate Gary Smith has decided to represent himself in legal proceedings after a falling out with his court-appointed public defender.
Smith was indicted in January on multiple felony and misdemeanor charges including aggravated stalking, possession of a deadly weapon, and criminal damage to vehicles. He was arrested after the Santa Fe Reporter posted surveillance video online showing a man who looks exactly like him puncturing the tires of his former Republican primary opponent Janice Arnold-Jones’ and campaign Manager Rhead Story’s vehicles.
On Monday morning, Smith told Second Judicial Court Judge Stan Whitaker that he’s being forced to represent himself because his court-appointed Public Defender Cynthia Leos won’t file legal motions on his behalf.
But Leos disagrees with her client’s assertions. She says he wants her to file motions that are not ethically permitted under judicial rules of evidence and procedure, including a motion ordering the victims to answer written questions. The relationship, Leos told the judge, has been deteriorating for months and “has no chance of coming back.”
Smith initially told the judge he simply wanted a different attorney appointed to his case, but the judge told Smith, who remained handcuffed and shackled through the hearing, that he would not allow him to "parade multiple lawyers through this courtroom until you find a lawyer who agrees with you.”
“Constitutionally you are entitled to representation, but I don’t know anywhere in the state or the country that allows you to pick your attorney,” Whitaker told Smith.
Whitaker reluctantly granted Leos’ motion to withdraw from the case, but not before grilling Smith, a former National Security Agency specialist, about his knowledge of the law and educational background. During the proceeding Whitaker offered numerous warnings about the serious implications of ignoring Leos’ legal advice.
“She’s a skilled and competent attorney, with years of experience practicing law in this courtroom,” Whitaker told Smith. “I suggest you listen to her professional advice.”
When Whitaker refused to release Smith from custody at the Bernalillo County Metro Detention Center to prepare for his trial, Smith asked him to order jailers to give him 100 hours in the facility's law library.
“I’ve only been allowed 10 hours so far,” Smith told the judge, who delayed making a ruling until he determines if he has jurisdiction at the jail. Smith says he needs time to review the video, but jail staff won’t allow him to have a DVD player in his cell.
Whitaker also denied three of Smith’s oral motions saying they were either not germane to the case or premature, and again warned Smith he would not grant inappropriate discovery motions, nor delay the trial based on Smith’s lack of trial experience. Whitaker also cautioned Smith about being outmaneuvered by experienced prosecutors in the case, beginning with jury selection.
“You’ll have to do your homework,” Whitaker told Smith.
The judge also refused to allow Smith to have his case transferred to veterans’ court because there was no plea or sentence in his pending case and because he faces similar charges in Texas following his trial here. Smith tire-slashing spree may have started in El Paso in 2008.
His El Paso neighbor’s Kenneth and Esther Propps told SFR last January they instantly recognized Smith in new surveillance video. The Propps claims Smith punctured their tires and attempted to burn down their home.
Leos agreed to be Smith’s standby attorney and said the public defender’s office will provide him with a legal handbook to help him write motions in a format required by the Supreme Court. She also said her office will provide Smith with a suit to wear during his trials, which are now scheduled for April and May.
Smith will be allowed limited pre-trial interviews with Arnold-Jones and Story's widow Wanda Story beginning later this week. Both families have permanent restraining orders against Smith. Both plan to file civil suits to recover money they spent replacing their tires.
If convicted on all counts, Smith could be sentenced up to 14.5 years in prison. A hearing to consider Smith's motion to dismiss the charges has been set for Nov 8 at 10 am.