Executive Council weighs Pam Smart's appeal
By: Aaron Sanborn
© Copyright 2007, Keene Equinox
It only took a few minutes for the Executive Council to determine the fate of Pam Smart by unanimously denying her request for a pardon hearing, but the cards were stacked against her long before the hearing in Concord on the afternoon of July 13, 2005.
"A pardon is unusual," said New Hampshire Attorney General Kelly Ayotte. "They are rarely granted and are viewed as an act of executive grace."
In fact in Ayotte's term as Attorney General, which began in 2004, she has only seen two pardons granted by the Executive Council.
"They don't grant many of them," Ayotte said. "When they do it's more of forgiveness than forgetting; a pardon doesn't erase a conviction, it erases the consequences of a conviction."
In the case of Smart, who was convicted March 22, 1991 of being an accomplice to first-degree murder, conspiring to commit murder, and tampering with a witness; the denial of this pardon hearing may be the final dagger to her hopes of someday getting out of prison.
Smart is currently serving a mandatory life sentence without the possibility of parole at Bedford Hills Correctional Facility in Bedford, N.Y.
She has exhausted all legal appeals. In her letter that was dated on Dec. 1, 2004 and addressed to former governor Craig Benson, Smart told the former governor that her "life literally depends on your mercy and careful reconsideration of whether justice has truly been served in my case."
The state pardon process
Prior to Smart's petition for a pardon she filed an appeal for re-trial in June 1991. The conviction was upheld. In October 1991 Smart's attorney Albert Johnson filed an appeal for re-trial to the N.H. Supreme Court, which was denied in the spring of 1992.
In April 1997 she filed a writ of habeas corpus to the state, which stated that she was imprisoned unlawfully. It was denied that same summer. In 2002 she appealed for federal intervention in N.H.'s first circuit of federal court appeals that was denied.
In 2004 she appealed the federal decision and a three judge panel ruled in favor of the 2002 decision. Finally in 2004 Smart's lawyers Greg Adamski and Karen Conti decided that petitioning for a pardon would be their next legal avenue.
The process for applying for a pardon is a little different in New Hampshire compared to other states because in most states the decision will either fall on the governor or a board of pardons.
In New Hampshire the power to grant a pardon falls on the governor and the five-person Executive Council. The pardoning process is summed up in the New Hampshire Constitution section 2.4 article 52 "The power of pardoning offenses, except such as persons may be convicted of before the senate, by impeachment of the house, shall be in the governor, by and with the advice of council: But no charter of pardon, granted by the governor, with advice of the council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offense or offenses intended to be pardoned."
According to Governor John Lynch, who choose to answer Equinox questions by e-mail only, the governor and council act as a negative on each other.
"For items such as contracts, appointments, or pardon hearing request, the Governor and Council act as a "negative" on each other. Both the Governor and a majority of the Council must agree for any item to move forward," Lynch said. "The Governor can "veto" something approved by the Council, and the Council can choose not to approve an agenda item offered by the Governor."
According to Senior Assistant Attorney General Jeff Strelzin, the attorney general's office gets about 10-20 petition for pardons per year and it's rare that these petitions result in a hearing or that the request is granted.
Strelzin said, that the executive branch is reluctant to reverse the decision out if respect for the victims and the jury who made the original decision.
"It undoes what the jury did," Strelzin said. "That conviction only meant something in the short-term."
The Executive Council
Many states in the country have a type of council which advises the governor, however New Hampshire's Executive Council, also known as the Governor's Council, has the ability to check the power of the governor. The position of Executive Councilor offers unlimited opportunities to run for the position and grants the councilors, along with the governor, some of the state's most important powers, such as the spending of a significant portion of the state's budget, the nominations and appointments of all judicial officers, the attorney general, and all officers of the navy, and general and field officers of the militia, just to name a few.
The council was created in 1617 and according to Strelzin; the council was created because the people in those times were concerned about giving one person too much power (Governor). In effect the Executive Council was created to protect people from the governor and acts like a board of directors.
The council includes five councilors who represent five districts. The five councilors include District 1 councilor Raymond Burton of Bath, NH. Burton is currently the longest serving councilor as he is in his 14th term. The District 2 councilor is Peter Spaulding of Hopkinton, NH. Spaulding is currently serving his 11th term as a councilor. Ruth Griffin of Portsmouth, NH represents District 3 and is currently serving her 10th term as a councilor. The newest members of the council include District 4 and 5 councilors Raymond J. Wieczorek and Debora Pignatelli. Wieczorek and Pignatelli are currently serving in their second and first terms respectively as councilors.
July 13, 2005; Smart's fate is out of her hands
In order for Smart to even be granted a pardon she must first be granted a chance for a pardon hearing. Her request for a pardon hearing went before the governor and council at its regular meeting on Wednesday July 13, 2005. Smart's request was number 40 on a more than 166 item agenda and the council made quick work of it.
"It was very brief," said District 5 Councilor Pignatelli.
In an instant Smart's request was denied by a 5-0 vote. The motion to deny her request was made by Councilor Wieczorek. While this decision was being made rapidly, Smart's mother, Linda Wojas asked the governor and council to speak. Much like her daughter, Wojas' request was quickly denied.
"Sometimes we have as much as 152 items on our agenda; if we granted everyone the opportunity to speak we would never get done," Pignatelli said.
According to Governor Lynch, Wojas was denied her request because the proceeding was a public meeting, not a public hearing.
"My staff, as well as a number of councilors, had spoken to Ms. Wojas before the council meeting. We had also read and carefully considered the pardon hearing request and the supporting documents," Lynch said. "The meeting was not a public hearing, and had not been advertised as a public hearing. Giving her the floor while not providing the same opportunity to, for example, Greg Smart's family, would have been inappropriate."
Even if Wojas was granted the opportunity to speak, it may not have had made a difference as the decision to deny Smart's pardon hearing seemed set in stone months before the meeting when some councilors made their feelings know about Smart chances for a hearing.
Both Councilors Burton and Spaulding are on the record saying that Smart never really had a shot of being granted a pardon hearing.
Spaulding told the New Hampshire Union Leader in January 2005 "I think she's got two chances -- slim and none."
In that same article Burton told the Union Leader that Smart's petition was premature, a sentiment that he echoed to the Equinox.
"I thought it was premature for it to go before the governor and the council, it hasn't been that long (14 years)," Burton said. "I think she should remain there a little longer."
Prior to the meeting in July discussions about Smart's future were very brief, according to Pignatelli the council expressed briefly at breakfast some of the reasons why they weren't going to grant Smart's request. Governor Lynch said that there were many reason for the denial.
"Because of the brutality of her crime, because of her lack of remorse, and because she presented no evidence of a miscarriage of justice, I opposed granting Pamela Smart's request for a pardon hearing," Lynch said. "Pardon, and pardon hearings, should be reserved for exceptional circumstances. They are not a substitute for the court system. I felt -- and it was clear that the Executive Council agreed -- that she presented no evidence that warranted us rehearing the very issues that have already been duly considered by the courts."
The fact that the courts had ample opportunity to review Smart's case is a factor that went into Pignatelli's decision. She said that the first thing did after receiving Smart's petition for commutation of sentence was check the courts where Smart had previously appealed, to see if they raised any concerns about her case.
"This was important for me to know," Pignatelli said. "If the courts would have raised any concerns, I may have been able to look at the case differently but they had no concerns."
For Councilor Spaulding, who had previously voted yes on a pardon for June Briand, the fact that Smart has showed no remorse for her crime was a major factor in his decision to vote no, despite an application packet with numerous letters of support for Smart and a list of accomplishment she achieved while in prison.
"I wasn't impressed with her application packet," Spaulding said. "She has never admitted guilt or palpability for her crime."
Pignatelli agreed with Spaulding, saying that her accomplishments in jail won't erase her crime.
"I don't think anyone of us were convinced that she deserved it, she's done a good job in jail but that's what we expect," Pignatelli said. "I wasn't troubled by my decision at all; it was a really awful crime."
Smart's reaction and future
While her fate was being determined, Smart was 180 miles away at the Bedford Hills Correctional Facility in Bedford, N.Y. In an October interview at the prison, Smart was asked by the Equinox if she was surprised by the governor and the council's decision to which she responded quickly and with confidence, "Not at all, I didn't even want to do it."
Smart said that applying for a commutation of sentence was the idea of her lawyers Greg Adamski and Karen Conti. The reason that they suggested this step was because she has exhausted all appeals. Smart's application for a commutation of sentence claims that "Smart was denied her right to a fair trial as a result of the media frenzy surrounding it."
The application also included a list of her accomplishments while in jail, such as, helping other inmates earn their GED's, tutoring and has earned two Masters Degrees herself.
According to Smart, who to this day still claims her innocence, she wasn't surprised by the governor and council's decision because she feels that the people of New Hampshire have already made up their minds about her and that if one member of the Executive Council voted for her, they would lose support from voters.
Smart said that the bottom line is they are all looking to get re-elected and keeping Pam Smart in prison will keep people in the state happy.
Councilor Spaulding said that the issue of granting a pardon or not to grant a pardon has nothing to do with politics or even innocence or guilt; it's about finding exceptional circumstances that may have been overlooked when the conviction was granted.
"It's not our job to determine guilt or innocence or serve as judge and jury," Spaulding said. "It's our job to ascertain whether or not a person should be pardoned."
Smart will be eligible to apply for a pardon again in 2008 when the next gubernatorial and council terms begin. Smart said that at this point she doesn't know what she will do and that her best legal avenue now is to find new evidence in her favor. However, it has already been 15 years and every legal avenue has been exhausted and denied, leaving doubts that Smart will ever see the world outside Bedford Hills again.
Councilor Burton didn't rule out the possibility that Smart could eventually get a second chance but did say he doesn't see it happening anytime soon. As for Ayotte her view on Smart's situation is a bleak one.
"I can't speak for them (Executive Council), but I think it would be difficult to come forward to some governor or council without coming forward with something compelling, she has an uphill climb," she said.
© Copyright 2007 Keene Equinox