CHARLOTTE, N.C. - Defense lawyer David B. Smith seemed desperate to get something off his mind.
Soon after arriving at the Durham office of the North Carolina Center for Death Penalty Litigation, he made a disclosure that could end his 27-year legal career:
He told staff attorneys that he had betrayed his own client - death row inmate Russell Tucker - because he had concluded the man deserved to die.
By doing so, Smith may have hurt Tucker's prospects of avoiding execution, scheduled for Dec. 7. Now the 52-year-old Greensboro lawyer hopes his admission will give Tucker another chance.
"I did what I had to do to rectify the situation I created," Smith said. "I had to put out the truth."
Smith spent most of his career as a hard-charging federal prosecutor. Some lawyers question whether he was able to change his prosecutorial mindset when he began working as a private defense lawyer four years ago. But most said he was relentlessly thorough, no matter whom he represented.
Greensboro defense lawyer Locke Clifford, who frequently battled Smith in court, said he long had a reputation as the toughest drug prosecutor on the East Coast. Clifford said he saw just one recognizable part of Smith in the recent stories: the man who was honorable enough to live up to his mistakes.
"That's pure David Smith, right there," he said. "To say that we're going to tell the truth and shame the devil."
The lawyers at the Center for Death Penalty Litigation thought Smith was coming to their office simply to work on Russell Tucker's appeal. But according to Gretchen Engel, a staff attorney for the center, it soon became clear there was more on his mind.
"He right away said, `There are some things I need to tell you.'"
In February 1998, Smith was appointed to serve as one of Tucker's two appellate lawyers. He had never before handled a death penalty case, yet he had long been opposed to capital punishment.
But as Smith read the transcript of Tucker's trial, his views on the death penalty were "severely challenged," he stated in a recently filed affidavit.
Tucker, now 34, was convicted of killing Kmart security guard Maurice Travone Williams in 1994. The trial evidence showed that Tucker shot at - and missed - another Kmart employee after shoplifting a coat and a pair of boots. Then he shot Williams as the victim was running from him.
Smith found it hard to get Williams' autopsy photograph out of his mind, he told staff attorneys at the litigation center.
And when he met Tucker in prison, he didn't like him.
"I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution," Smith wrote in his affidavit.
His fellow defense lawyer, Steven Allen, had misinterpreted the state statute on the deadline for filing a key court motion in Tucker's case. Smith said he understood what the law required, but did nothing to correct Allen.
When Allen scheduled times to work on the appeal, Smith would make excuses to avoid meeting - or simply fail to show up. Smith said he never tried to withdraw from the case or tell Allen how he was betraying his client.
In his affidavit, Smith said he grew so depressed by his inaction that he sought counseling.
After defense lawyers missed their filing deadline, Tucker's execution date was set.
On Oct. 24, Smith came to the death penalty center. Pacing around the conference room, he revealed everything.
Then he used a staff computer to write a court affidavit that he knew would hurt him - but hoped would help Tucker. Mincing no words, he confessed to "passively sabotaging" Tucker's appeal.
"If Tucker was going to have a chance to avoid the Dec. 7 execution date, I had to do that," Smith said in an interview. "There was no other choice."
Many lawyers say they've never heard anything quite like Smith's case. But they say he may have doomed his legal career.
Officials with the North Carolina State Bar won't say whether they're investigating Smith. But Smith said he's well aware he could be disbarred. He said he reported the incident to the bar to ensure they have the facts right.
Smith said he was unsure whether he'd keep practicing law.
Experts in legal ethics say Smith failed to live up to the chief obligation of lawyers everywhere: vigorously defending their clients. When Smith realized he couldn't do that, he should have withdrawn from the case, they say.
Asked why he didn't withdraw, Smith said: "I really can't answer that."
Stephen Dear, who heads People of Faith Against the Death Penalty, initially argued Smith should be disbarred. But Dear says he has changed his mind.
Smith "really took a huge chance in saying this," Dear said. "If I saw Mr. Smith, my first words would be, `Thank you for your courage in admitting this terrible mistake.' I hope the State Bar will act appropriately - and his career won't be destroyed by this."
