By
The Associated Press
WINSTON-SALEM, N.C. - A lawyer for a death row inmate has stepped forward and admitted sabotaging his client's appeals because he didn't like the man and thought he ought to be executed.
The disclosure came Wednesday in the case of 34-year-old Russell Tucker, who is scheduled to die Dec. 7 for the 1994 murder of a security guard.
A remorseful David B. Smith said he caused his co-counsel to miss a key state Supreme Court deadline for filing one of Tucker's appeals.
"I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution," Smith said in a recent affidavit.
On Wednesday, co-counsel Steven Allen asked a Superior Court judge to allow the appeal to be heard and to appoint new lawyers for Tucker. But the judge said both questions are up to the Supreme Court.
In any case, the execution will probably be delayed because the federal courts have yet to hear the case.
Asked why he decided to come forward, Smith said: "It was something I had to do. I had to disclose that I had failed him. I had to tell the truth, and that's not always an easy thing to do."
Allen defended Smith's behavior, saying it was uncharacteristic.
"He was sick at the time he was asked to accept this representation," Allen said. "Mr. Smith is a very fine lawyer who was working under very difficult circumstances. He was put in the situation when his life was under a lot of stress and he was not able to offer his usual level of legal representation."
In his affidavit, Smith said he began to suffer from depression and insomnia after being assigned to represent Tucker in his appeals in 1998.
Smith said he met with the defendant in prison and decided he didn't like him. Then he read the transcripts from the trial and concluded, "Mr. Tucker should be executed for his crimes."
Smith would not elaborate yesterday on what made him dislike Tucker.
With a deadline approaching for filing an appeal with the state's highest court, Smith made excuses to avoid working with Allen on the case or simply failed to show up, he said. He said he knew Allen had misunderstood the deadline, and did not correct him.
"I was passively sabotaging Mr. Tucker's postconviction recourse in state and federal court," Smith said.
Tucker's execution date was set after the defense missed the deadline. Just over a week later, Smith came forward and admitted what he had done.
Carolin Bakewell, a spokeswoman for the North Carolina State Bar, would not say whether he is the subject of a disciplinary investigation.
Disbarment is "a distinct possibility," Smith said. "There could be consequences and I've thought about it, but I knew the truth had to be told."
Despite Smith's admission, prosecutors continue to oppose Tucker's appeal and the request to replace his lawyers.
Tucker "has no right either to 'effective assistance of counsel' or 'conflict-free counsel' under the state or federal Constitutions," said Attorney General Mike Easley - the Democratic candidate for governor- and Thomas Keith, the Forsyth County district attorney.
Allen said he hopes that the bar considers Smith's "stellar record." Smith spent more than 20 years as a prosecutor and has been in private practice since 1997.
"I consider him a very courageous person," Allen said. "He came forward and did something very few people would do."
