Defense Seeks New Penalty Trial for Child’s Murderer

Defense lawyers have asked for a new penalty trial for convicted child-killer Gregory Scott Smith, alleging that a juror who recommended the death penalty for him concealed her bias against him before trial.

The claim, filed Friday in Ventura County Superior Court by Smith’s attorneys, hinges on statements made during jury selection by one of the 12 jurors who recommended on Jan. 28 that a judge condemn Smith to be executed.

Smith is scheduled to be sentenced April 3 for the March 23, 1990, slaying of 8-year-old Paul Bailly. Smith pleaded guilty to charges that he kidnaped, raped and strangled Paul on March 23, 1990, and set his body afire in Simi Valley.

Last autumn, as she was being chosen for the jury that would decide on the death penalty or life imprisonment for Smith, the juror candidate wrote on a questionnaire that her daughter was raped at age 16.

According to the papers filed Friday, defense attorneys asked the woman whether the memory of her daughter’s rape would cause her discomfort while hearing a case such as Smith’s.

The woman answered, “No, because it was too completely different,” the papers said.

Neither Smith’s attorneys nor prosecutors moved to have the woman excluded from the jury, which deliberated less than eight hours before recommending that Judge Steven Z. Perren sentence Smith to death.

In asking Perren for a new trial or a life sentence for Smith, Farley wrote last week, “It is impossible to determine whether she was intentionally attempting to conceal possible bias at the time, or whether her original assessment of the impact of that incident was correct.”

Farley’s argument also cited an article published in The Times in which, after the verdict, the juror told a reporter that the trial brought back bad memories about an incident involving her daughter, but declined to elaborate.

The juror should have told the court in mid-trial that testimony about Smith’s rape of Paul was stirring bad memories of her own daughter’s ordeal, Farley wrote.

“(She) was obliged to bring this to the attention of the court, and she did not,” the appeal said. “Intentionally concealing bias during (jury selection) amounts to jury misconduct and warrants granting a new trial.”

Farley also argued that Christopher Hatcher, a San Francisco expert in child-abduction cases who never met Smith, was improperly allowed to give jurors his opinion that Smith fit the profile of a sexual sadist. The judge allowed a miscarriage of justice by first forbidding such testimony to be given to jurors, then allowing them to hear it anyway, Farley argued.

Farley further alleged that Deputy Dist. Atty. Gregory D. Totten committed prosecutorial misconduct during his closing statements by telling jurors that Smith fit the profile Hatcher talked about.

Farley’s argument quoted Totten as telling jurors, “We know that (Smith) sodomized and strangled Paul for purposes of sexual pleasure.”

Prosecutors are due to file their responses to the defense arguments by March 30, but Deputy Dist. Atty. Peter D. Kossoris declined to comment on Farley’s arguments before the April 3 sentencing hearing.

“We’ll file a response prior to the hearing and we’ll be prepared to argue it,” Kossoris said. “Motions for a new trial are relatively routine. I’ve never seen a major case that didn’t have one.”