Lawyer for suspect in smudge pot attack asks for trial delay

The lawyer for a prisoner charged with almost killing his cellmate in 2009 asked Tuesday to delay the trial at least three months so she can track down other inmates housed in his Connell unit at the time.

Kenneth Smith, 35, agreed to move his Franklin County Superior Court case to Dec. 12, which his attorney Karla Kane said is a tentative date.

Smith is charged with attempted first-degree murder and first-degree assault and was scheduled to face a jury Sept. 19.

However, Kane said the ongoing investigation has been hampered by efforts to reach the fellow Coyote Ridge Corrections Center prisoners -- many of whom still are imprisoned, but might be at different facilities -- and by the partially blacked out reports she received from the state Department of Corrections.

Kane said that as she continues to work on the case, more information comes out to be reviewed, and she has an obligation to do all she can because this is Smith's life. If convicted, this would be his second strike under Washington's three-strikes law, but he likely would die in prison, she said.

Prosecutors brought the case against Smith during two years after the beating, Kane noted, saying her "efforts would have been easier" if the charges had been filed sooner.

She said Smith acted in self-defense when he attacked Scott William McDonald with a smudge pot. The two men had been in a fight in their cell the morning of June 29, 2009, and Smith was left bloodied and injured while his cellmate continued to threaten him, she claims.

"(I want jurors) to see what (Smith) perceived as a threat to his life in his shoes. I want jurors to see (Smith's) state of mind when that man (McDonald) came in there to kill," she added.

Deputy Prosecutor Teddy Chow objected to any delays by the defense, saying it is "purely a fishing expedition to make this trial an expensive deal." He said it is a waste of resources to try to talk to the 156 people who were housed in that unit then because anything they might tell the defense is hearsay.

Kane is trying to introduce a "cultural defense" by saying this is the way things are done in prison and they aren't discussed, Chow argued, but that is not a defense recognized under the law.

Chow said the prosecution will agree there was an earlier fight in the cell in which "the victim got the better of Smith." But after the doors opened and McDonald returned from getting a cup of coffee, Smith confronted him on an upper tier outside their cell and bludgeoned McDonald's head 15 or 16 times with a metal pot in a pillow case, according to Chow and court documents.

The handle of the smudge pot broke off during the repeated blows. McDonald, now 48, lost his left eye, suffered a brain injury and was in a coma for almost a month.

The men had been cellmates for about 41 days before the incident.

Chow told the court that everything they've been told by fellow prisoners is that Smith was seen beating McDonald, and it was captured on video inside the housing unit.

Kane said she is trying to get the background of those prisoners, and has written each of them individually to see if they will talk but has gotten no reply. She said a public disclosure request from the Department of Corrections came to her with names and other information blacked out, so she may ask Judge Bruce Spanner to sign a subpoena to get her the complete copy.

Kane added that she has not been able to view her own client's medical information, and would like to know what medical care he received that day.

Smith now is at the Washington State Penitentiary in Walla Walla. He was brought into court by four state corrections officers, in addition to a Franklin County jail officer.

Kane said she has been limited in her communication with Smith because of his prisoner status. The lawyer and client have talked on the phone but the calls aren't always clear, and when she visits him in Walla Walla they must talk through glass, which also makes it difficult to hear.

Judge Bruce Spanner ruled that Kane's attempts to track down inmates and prison records aren't futile because Smith has a right to defend himself.

He approved the Dec. 12 trial as a "soft date," recognizing that it is just before the holidays.