William F. Smithson’s quest for a new murder trial has received a preliminary setback.

Delaware County Common Pleas Judge Barry C. Dozor, who presided over Smithson’s trial, has declined a request by Smithson to overturn his first-degree murder conviction.

Dozor issued the denial in an opinion issued April 23.

But Smithson’s attorneys are preparing a more extensive appeal to be filed in state Superior Court.

Advocates for Smithson say his initial trial, held in November 2008, was dominated by homophobia, making it difficult for jurors to objectively determine the truth.

Smithson, 44, stands convicted of strangling to death coworker Jason Shephard, 23, during the early-morning hours of Sept. 19, 2006, while Shephard was visiting Smithson’s home in Thornbury, Delaware County.

Smithson slipped the “date-rape” drug, gamma-hydroxybutric (GHB) acid, into Shephard’s Gatorade prior to trying to rape him. Then he strangled Shephard with some type of ligature, according to the prosecution.

Smithson denies the allegations and claims prosecutors haven’t adequately examined the actions of a third man in his house that morning, F. Bruce Covington.

Covington acknowledged bringing illicit drugs to Smithson’s residence at the time of Shephard’s death but has denied knowing anything about the homicide.

Covington remains free on bail, facing several drug-related charges in Montgomery and Delaware counties. He’s also accused of lying to police about his whereabouts at the time of Shephard’s death.

In a 38-page opinion, Dozor summarized the case.

“On a September night in 2006, following a business dinner and a coworker’s invitation to his house, Jason entered a different world, a world of parties where cocaine, crystal methamphetamine and GHB were used. Jason was lured to this party by William Smithson, who drugged, kidnapped, assaulted, nearly raped [him] and strangled him to death. However these crimes were simply not enough for Smithson. After Jason was tragically cut down in the prime of his life, Mr. Smithson tampered with physical evidence, abused Jason’s corpse and spent nearly three days lying to his coworkers, hotel staff and the police.”

Rob Nardello, a close friend of Smithson, said he wasn’t surprised by Dozor’s opinion.

“It’s just regurgitated circumstantial evidence,” Nardello said. “That was mostly what the trial was based on. Bill Smithson was convicted without any physical evidence.”

Nardello also criticized Dozor for refusing to grant immunity to Covington so that he could have been called as a witness by the defense and questioned in front of jurors.

Nardello also said prosecutors inflamed jurors by referring to Smithson’s home as a “house of sodomy,” displaying photographs of Smithson’s sex toys and aids and questioning Smithson’s character witnesses about their sexual orientation.

In a brief interview, Assistant District Attorney Thomas F. Lawrie Jr., who prosecuted the case, said Smithson was eligible for the death penalty because he kidnapped Shephard and tried to rape him, prior to strangling him.

He said references to Smithson’s sexual activities, including his sex toys and aids, were appropriate because of the sexual nature of the crime. “It was relevant to show that his motive here was a sexual assault, and he was a homosexual man,” Lawrie told PGN.

Lawrie also said it was appropriate to ask Smithson’s character witnesses about their sexual orientation.

“I felt it was an appropriate question, given the circumstance of their bias toward him, their bias in the case,” Lawrie said.

Advocates for Smithson also want a new trial because prosecutors lost four search warrants related to the case.

But in his opinion, Dozor said police made photocopies of the search warrants, which did not differ materially from the actual search warrants approved by a judge.

The state Superior Court isn’t expected to issue a ruling on the appeal until late 2009.

Timothy Cwiek can be reached at (215) 625-8501 ext. 208.