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Man appeals murder conviction

March 19, 2008
LOCK HAVEN — Fabian Smart made a last-ditch appeal to the local court Monday to have his murder conviction overturned in the beating death of a Lock Haven area man nine years ago.

Clinton County President Judge J. Michael Williamson said his decision is pending but did not specify when he might make a ruling.

Smart was convicted of first-, second- and third-degree murder, kidnapping and conspiracy and sentenced to life in prison without the possibility of parole in the death of Jason McMann. He is serving his sentence in the State Correctional Institution in Waynesboro.

Williamson immediately rejected one of three issues raised Monday — a presence of racial prejudice in the jury room.

The second issue, which suggested that murder victim Jason McMann might have been alive days after his reported death, was rejected moments later because it included an error in the date.

The third issue focused on DNA evidence the defense legal team might have presented during the trial, but court officials noted the decision to avoid that option was a logical part of the defense strategy rather than any error.

Testimony provided by Smart’s former attorney, Ronald Travis, suggested at least one jury member told him she looked with suspicion at the deliberation process when racial slurs (Smart is black) were brought up “early and often.” Travis said he learned about the comments from the juror after the trial.

“What happens in the jury room is inviolate ... We aren’t getting into that,” Williamson said.

The judge said Pennsylvania law makes it clear that what’s said during deliberations in most circumstances can’t be used for a criminal defendant’s appeal process.

Testimony during the trial indicated that McMann had purchased a state Department of Transportation identification card between the date of his death on Jan. 23, 1999, and Groundhog Day on Feb. 2 that same year.

That matter was raised by a private investigation team working for Smart’s family members, who also attended the hearing.

But, court officials checked the PennDOT records following the hearing and found that McMann obtained the photo identification card well before the suspected date of his death.

McMann’s parents, Paula and Tucker McMann, who were in the audience during the hearing, said their son had obtained the card before the day in question because McMann was 21 and wasn’t allowed to drive but needed identification in order to purchase alcohol at local taverns.

PennDOT records indicate McMann was last issued a photograph identification card on Nov. 14, 1998.

The third and final issue was the “failure of the defense team to present a DNA case.” The judge and District Attorney Michael Salisbury noted the team made a conscious and strategic decision to hold back on that avenue of inquiry because of the likelihood it would harm Smart’s case.

Travis said a blood sample had been obtained from one of McMann’s fingernails during the autopsy, but defense attorneys reportedly felt DNA outcomes could hurt their client.

The defense premise was McMann and Smart had physical contact the evening in question, but Smart “was not involved in the taking of Mr. McMann’s life.”

Travis said the presentation of DNA evidence under those circumstances was “risky.”

Smart’s new attorney, David Strouse, has been appointed as special counsel in connection with the legal proceedings because Smart has no ready means of paying a private attorney.

Strouse asked for more time to raise other issues as part of his Post Conviction Collateral Relief Act petition but was told by Judge Williamson there are limits to the appeal process.

Williamson said he wasn’t willing to continue the matter into infinity as a private investigator sifted through piles of criminal files, but did not offer any deadline beyond a passing comment that his decision was pending and Strouse could continue to raise issues until he issued an opinion.

On Oct. 1, 2007, Smart filed a motion under Post Conviction Collateral Relief Act, asking that his conviction be overturned and that a new trial be held.

McMann was last seen alive in the winter of 1999 near a home occupied by Lock Haven University students at Center and North Fairview streets and reportedly was involved in a fight there with Smart.

Three months after the disappearance, McMann’s body was found along a stream in a rural section of the county.

Two alleged participants in the event said they helped Smart load McMann into a car, and a third said he and Smart drove to a remote and wooded area near Sugar Valley, where Smart pistol-whipped the unconscious man, struck him with a tree branch and rolled him down a steep incline near a stream, where McMann succumbed to his injuries and exposure to winter weather.

Smart claims he is eligible for relief because the court violated his constitutional rights, his attorneys were ineffective and evidence has been found that would have changed the outcome of the trial if it had been introduced.

Many of those issues have been raised before in Smart’s appeal to the Pennsylvania Superior Court and, because of that, Smart has exhausted much of his legal basis for appeal.

“After-discovered evidence” remains as the only major category upon which an appeal might be based. That category includes any evidence that might have been missed or not presented at Smart’s trial.


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