A Harford County man, who was found guilty of first-degree murder more than four decades ago in connection with a fire that killed two teenage girls, is another step closer to winning his freedom after a Cecil County judge threw out his two remaining convictions in late January.
John Henry Smith, 60, has spent the past 42 years behind bars for a crime he continues to maintain he did not commit.
Smith's convictions were overturned on a legal technicality that has resulted in similar court rulings in several high profile murder cases from the 1960s and 1970s, both in Harford and across Maryland.
The so-called Unger rulings follow a Maryland Court of Appeals opinion that judges prior to 1980 had not adequately informed juries of their duty. Unger is convicted cop killer Merle Unger, whose appeal led to the ruling, although he was subsequently retried and convicted again and is back in prison for life.
Following a hearing in Elkton last Dec. 6, 40 years to the day Smith was sentenced to spend the rest of his life in prison, Cecil County Circuit Judge V. Michael Whelan vacated Smith's convictions, on the basis of an Unger claim, in an opinion issued Jan. 24.
Harford County State's Attorney Joseph Cassilly immediately appealed to the Court of Special Appeals, and Smith remains incarcerated at the Maryland Correctional Institution near Hagerstown while the state's appeal is pending.
Retrial not certain
In a recent interview, Cassilly said he hadn't decided if he would recharge and retry Smith if the appellate courts uphold Wehlan's decision.
The prosecutor, who has appeals pending on at least two other Unger rulings involving Harford cases, has been highly critical of the Court of Appeals decision that led to the convictions being overtured.
"I don't know what the Court of Appeals was thinking," he said, echoing a similar statement he made last summer.
Cassilly also conceded, however, that it may be difficult to prosecute the Smith case so many years later.
The state's key witness against Smith is dead, so are the chief police investigator, chief fire investigator, chief prosecutor, Smith's defense lawyer and the judge who sentenced him.
"We may have to do some of this by transcript, which isn't the best way," said Cassilly, who didn't join the state's attorney's office as an assistant prosecutor until 1977 and was just entering law school when the Smith case was finally adjudicated in late 1974.
Victims were asleep
The two victims, Rosalie Ann Poe, 15, and a friend from Baltimore County, Diane Elizabeth Reichert, 18, were asleep in an apartment above Gene's Bar and Grill on Jarrettsville Road, between Forest Hill and Jarrettsville, when a fire broke out on the first floor of the building early on the morning of Jan. 30, 1972.
Five other members of the Poe family who were also asleep in the apartment were able to escape: Ms. Poe's parents, the late Milton Eugene Poe, 44, and the late Theresa Poe, 44, and her siblings, Lewis, Frances and Donna Poe, ages 17, 13 and 11, respectively.
About five weeks after the fire, police arrested Smith, who was 18, and another man, Wayne Edward Boyle, 18, who later pleaded guilty to a single count of arson under a plea bargain with prosecutors. Boyle, who testified against Smith, later died in prison.
According to newspaper accounts of Smith's trial, moved to Elkton at his lawyer's request, prosecutors claimed Smith set the fire as revenge against Milton Poe, who had told him to leave the bar about three weeks earlier, after refusing to serve him alcohol because he was under age and telling him he could not use the pool table because it was reserved for older customers.
Boyle and another man who was with them the day of the exchange testified Smith was angry at Milton Poe. During his cross-examination, Smith's lawyer asked Mr. Poe, who is white, if he had called Smith, who is black, by a racial epithet. Poe denied it.
The chief fire investigator, the late Thomas Broumel, testified he did not take evidence from the scene until 11 days following the fire. Mr. Broumel testified he believed the fire was arson because he could not find a natural cause. He said laboratory tests found gasoline residue on some of the debris; however, he could not say what exactly caused it, only that there were two ignition points.
"It sets deliberately in my mind it was deliberately set," testified Broumel, who went on to become the chief of police in Bel Air and a top deputy in the Harford County Sheriff's Office. He was one of 27 state's witnesses compared to four for the defense, including Smith.
Seen near fire
While the fire was still being fought, Smith was observed watching nearby in a group of bystanders, according to a Maryland State trooper, who also testified. A photograph taken by a reporter from The Aegis while the fire was in progress also showed Smith standing with a group at the nearby Cooptown Market.
Smith, who grew up in the racially mixed Cooptown neighborhood, testified that Boyle was lying when he testified he heard Smith say he planned to get even with Milton Poe. The prosecution produced another witness who said he was with Smith a few weeks before the fire when talk about going Gene's to buy beer allegedly had elicited a comment from Smith that the bar should be "burned to the ground."
Smith was found guilty by an all-white jury of two counts of arson and two counts of first-degree murder. The late Judge H. Kenneth Mackey sentenced him to concurrent life terms on the murder counts and concurrent 30-year terms on the arson counts.
Both of Smith's arson convictions were eventually vacated, the result of some of the numerous appeals Smith has initiated during his four decades behind bars.
Smith married about 17 years ago. His wife, Ellen, was working as a nurse at the prison in Hagerstown when they met. She left the department of corrections because of their personal involvement, she says, and now works as an occupational therapist in Washington, D.C., commuting by train from her Harpers Ferry, W.Va., home.
Ellen Smith said her husband would welcome another day in court, but she also believes the state has no case against him and should let him go free.
"The courts ruled he didn't commit arson, so he couldn't have murdered anyone," she said in a recent interview, while suggesting the prosecution and conviction of her husband were racially motivated and that race has played a role in Smith not being granted parole.
Smith was represented by a private lawyer in his successful Unger appeal, but his wife said she has exhausted her savings, and they will have to rely on the public defender's office if there is a retrial. She also doubted they will attempt to have Smith freed on bail before the case has run its full course.
Attempts to reach survivors Frances Poe Bragg, who runs Gene's, and Lewis Poe, by telephone were unsuccessful. Messages left for Bragg at the business and for Poe at his home were not returned.