Los Angeles Times - September 25, 2003
Jenifer Warren, Times Staff Writer

The high court's decision not to review the case involving Mark Smith means that the inmate, who has AIDS, dementia and heart disease and is classified as totally disabled by the state, could be released as early as today.

Lawyers who handle such cases said Smith is one of only two convicted murderers in California who have challenged denials of their parole and managed to win their freedom in the courts.

The other, Carl McQuillion, was released earlier this month after 30 years in prison.

Smith's attorney, Donald Specter, called the state Supreme Court's refusal to review the case "an indictment of the governor's decision-making process in this case."

Noting that Davis' own parole board recommended Smith for release more than three years ago, Specter said: "It's really, really tragic that Mark Smith - a very sick man - has had to spend all these years in prison because of the governor's stubborn insistence on fighting this all the way."

Supervising Deputy Atty. Gen. Julie Garland said she was disappointed that the court declined to take the case, arguing that there were legitimate grounds for review.

Garland said she assumed there was no other legal action the state could take to block Smith's release.

Smith, 47, was convicted of second-degree murder in the 1985 killing of Rick Diamonon, who was shot and then drowned in a creek in Topanga Canyon, apparently after an argument over cocaine.

At a June 2000 hearing, the parole board found that Smith was not a danger to society.

In recommending his release, board members praised his prison record and noted that the sentencing judge had urged he be freed, indicating that Smith was the least culpable party in the crime.

Documents show that Smith was diagnosed with terminal AIDS in 1994, has been treated for two types of head and neck cancers, and has dementia.

A prison psychologist concluded that "since his dementia is progressive, it is unrealistic to expect any improvement."

The state classifies Smith as totally disabled and unable to work.

Davis reversed his parole board and blocked Smith's release, saying he had "committed a wanton and violent act against another for something as inconsequential as an unsatisfactory drug deal."

Smith challenged that denial, and a Los Angeles Superior Court judge said Davis had wrongly labeled Smith as one of the killers, rather than an accomplice, and had exaggerated his criminal history.

The judge ordered Smith released, and the governor's appeals of that decision eventually reached the state Supreme Court.

Once he is released from the California Men's Colony in San Luis Obispo, Smith will return to Sun Valley to live with his parents.

His mother, Dolores Padilla, said she saw her son Friday and that his condition is frail, and his memory fading.

"We've been hoping for his release for so long, we don't know what to think," Padilla said. "I just hope I don't wake up and find it's not real."

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