published Monday, September 7th, 2009

Defendant's deafness could pose issue at murder trial


by Monica Mercer

PDF: Tenn. vs. Smith

Attorneys representing a local man who is charged with murder and legally deaf worry his disabilities will cause major logistical hurdles when he goes to trial early next year.

"This will be a very painful process," said defense attorney Karla Gothard, expressing concern that her client, Alex Smith, is in danger of not receiving a fair trial in Hamilton County Criminal Court because of his inability to express himself and understand others and what she says is the court's failure to find a solution to the problem.

"It's kinda like telling a defendant with no legs that he can't use a wheelchair or elevator, but come on up to the third floor anyway and have your day in court," Ms. Gothard said.

Criminal Court Judge Rebecca Stern had ordered that Mr. Smith should receive instruction in sign language, instruction in improving his reading skills and "any other services deemed necessary so as to address the competency concerns."

However, Ms. Gothard said those efforts failed.

Mr. Smith grew up with limited hearing and managed to learn how to talk, though he never learned the critical skills of sign language or lip reading, she said.

More than five years ago, Mr. Smith confessed to shooting and killing in broad daylight a man he claimed had tormented him for years.

Mr. Smith's claim of self-defense in the Jan. 19, 2004, death of Demond Foster will be a critical component of the trial, Ms. Gothard said.

Over the years, Mr. Smith, 33, has become almost totally deaf, which has caused his speech to become virtually unintelligible, and he is unable to fall back on the types of communication that can allow deaf people to function in a hearing world, she said.

"I can barely understand him, and I've been dealing with him for five years," Ms. Gothard said.

Mr. Smith's defense team pleaded with a Hamilton County judge late last year to render him incompetent to stand trial.

The plea was not based on claiming an abnormal mental state, as often is argued on behalf of defendants seeking to be declared incompetent. Instead, Mr. Smith's lawyers argued that the court, which normally would use a sign language interpreter to deal with a deaf defendant, had not been able to come up with an effective alternative means to allow Mr. Smith to participate in his own defense.

That circumstance, they argued, effectively renders Mr. Smith incompetent, just as a mental defect would.

Yet the court did try to find a solution through Judge Stern's order for instruction in sign language, reading skills improvement and other services.

A neuropsychologist testified late last year that the prospect of Mr. Smith ever learning sign language was slim at best. Taking into account an IQ of 64 and "very poor" language skills, Dr. Pamela Auble also said Mr. Smith had trouble comprehending words with more than three letters.

"It's going to take a long time" for Mr. Smith to learn better skills, Dr. Auble testified.

Judge Stern ultimately declined to declare Mr. Smith incompetent and recently set his trial for Feb. 2.

At a hearing last week, the judge assured the defense that the trial would proceed as cautiously as possible and that the court would make every effort to ensure Mr. Smith understands the proceedings.

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