Important note: Information in this article was accurate in 2003. The state of the art may have changed since the publication date.
San Francisco Chronicle - Saturday, June 7, 2003
Bob Egelko, Chronicle Staff Writer
A state appellate court in Los Angeles ruled Thursday that Davis had misstated the facts of Mark Smith's case and had no evidence to justify his veto of the parole board's decision that Smith should go free.
It is the first time an appellate panel has ordered the release of a prisoner since the state Supreme Court ruling in December that bolstered the governor's case that he has broad power to block parole of murderers serving up to life in prison. The court said the governor need only show that there is some evidence to support his veto.
The state's high court has kept Smith in prison until all appeals are resolved. He will be freed unless the court grants review of Davis' appeal and overrules the appellate court.
"We are sorry that Mr. Smith is suffering from these ailments, but does that really lessen the fact that Mr. Smith took another life?" Davis spokesman Russ Lopez said Friday in announcing the governor's appeal.
"The governor's not convinced that Mr. Smith has been fully rehabilitated," Lopez said. "He's very strong in his stand that when someone is convicted of a cold-hearted murder, they deserve to be in prison. If the governor doesn't truly believe they have been rehabilitated, they should stay in prison longer."
In Thursday's ruling, however, the Court of Appeal asserted that Davis' version of the case was at odds with the record in numerous details, including the governor's statement that Smith had taken the victim's life. The judge at Smith's trial concluded that a co-defendant was the actual killer.
Davis should "let the decision stand and let Mark Smith live out the few remaining years of his life at home," said Donald Specter, one of Smith's lawyers.
Smith was sentenced to 16 years to life for the February 1985 murder of Rick Diamonon, 28, who was shot and drowned in a creek in Topanga Canyon after an apparent argument over drugs. Smith, who had been selling cocaine to Diamonon, said he was at the scene but did not take part in the killing.
The Board of Prison Terms, appointed by Davis, found Smith suitable for parole in June 2000. The board said he had no significant criminal record before the murder, had shown maturity and remorse in prison, had favorable psychiatric reports and, in light of his medical condition, posed no danger to the public.
His lawyers said Smith, now in his 40s, was diagnosed with HIV in 1994, was treated for cancer in 1999 and suffers from AIDS-related dementia.
Davis vetoed Smith's parole in October 2000, using powers granted by the voters in 1988. Since Davis took office, the parole board has granted parole to 222 convicted murderers, about 1 percent of the number it has considered, and Davis has overruled all but five.
E-mail Bob Egelko at begelko@sfchronicle.com.
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