The jury instructions issued by Delaware County Common Pleas Court Judge Barry C. Dozor during the murder trial of William F. Smithson are coming under scrutiny.
In 2006, Smithson allegedly strangled coworker Jason K. Shephard after inviting the young man to his residence. Prosecutors claim Smithson strangled Shephard during the course of trying to rape him.
In 2008, a Delaware County jury convicted Smithson of first-degree murder, and he was sentenced to life imprisonment without the possibility of parole. But advocates for Smithson say authorities failed to adequately investigate F. Bruce Covington, another man inside Smithson’s home when Shephard died.
They insist Covington is the more likely culprit, due to his alleged history of violent and abusive sexual practices. They point out that Smithson had no such history.
Smithson contends that Covington injected him with drugs, and he passed out while Shephard was still alive. Covington was convicted of drug-related offenses stemming from the incident. But prosecutors say he didn’t kill Shephard.
Due to a series of legal maneuvers, Covington was allowed to invoke the Fifth Amendment. He didn’t take the witness stand in the presence of jurors during Smithson’s 2008 trial. Instead, Covington’s statements to police were read to jurors by a state trooper.
A transcript of Smithson’s 2008 murder trial is located at the offices of U.S. Magistrate Judge Richard A. Lloret, who must decide whether to recommend a new trial for Smithson.
These were Dozor’s jury instructions regarding Covington:
“Ladies and gentlemen of the jury, you have heard testimony that Mr. Bruce Covington was or may have been present during the events prior to Mr. Jason Shephard’s death. You must accept my instruction that Mr. Bruce Covington is not available at the present time to testify. You must not guess, speculate or draw any adverse inference as to why neither the commonwealth nor the defense did not call Mr. Covington to the witness stand.”
Edward J. Frizell, an advocate for Smithson, faulted Dozor’s instructions for not clarifying that Covington was inside Smithson’s house during and after Shephard’s death, not just prior to his death.
“In his eagerness to make sure the jury would convict Bill [of murder], Judge Dozor went outside the law because he wasn’t true to the facts,” Frizell told PGN. “The record shows that Covington was present in the house before, during and after Jason’s death. To say something else is going against the facts. There was a third person in that house at the time of Jason’s death. Judge Dozor should have made that clear to jurors — if he had to comment at all. But he didn’t do that. So I think it’s a travesty of justice.”
Rob Nardello, another advocate for Smithson, echoed Frizell’s concerns.
“Bill’s right to a fair trial was violated in so many ways,” Nardello told PGN. “Judge Dozor’s jury instruction regarding Covington is just one example. Judge Dozor confused the jury into thinking they couldn’t speculate about Covington’s role in Jason’s murder. After the trial, a juror told me she didn’t think jurors could consider Covington [as a murder suspect]. After reading Judge Dozor’s instructions, now I see why she was confused.”
Through his law clerk, Danielle Mink, Dozor declined to comment for this story.
“Judge Dozor appreciates your continued interest in this criminal matter. Unfortunately, as the case is still pending, Judge Dozor is unable to comment at this time,” Mink said in an email.
Smithson’s trial attorney, G. Guy Smith, had no comment about Dozor’s jury instructions. But he reiterated his belief that Smithson didn’t kill Shephard.
“I’ve litigated 35 or 36 capital-murder cases,” Smith told PGN. “I’ve never been involved in a case in which I’ve seen the commonwealth work harder to hide somebody of importance from a jury as they did with Covington. What happened to the truth, the whole truth and nothing but the truth?”
Smith said Smithson was wrongfully convicted of murder.
“I’ve been through all kinds of difficult murder cases,” Smith continued. “From all of that experience, I am just as convinced today as I was at the trial that Bill Smithson is not guilty of murder. He did not murder Jason Shephard. Period.”
Smithson, 51, remains incarcerated at a state prison in Huntingdon.