Turning Stumbling Blocks into Stepping Stones

Learning to tie my shoes didn’t come easy. If no one was around to tie them, my shoes went untied, often causing me to trip and fall, skinning up my hands and knees. So I developed an unconventional approach to solving the problem: I started wearing my shoes on the opposite feet while tucking in the shoestrings. My friend’s mother noticed and asked, “Why are you wearing your shoes on the wrong feet?” I answered, “It makes me run faster.” And in truth it did because my shoes fit tighter and stayed on my feet. I eventually learned how to tie my own shoes but my unconventional approach to solving problems continued.

 

In the first grade, I had a teacher who had an aversion to my being a southpaw. She was determined to convert me into a righty. Whenever she caught me writing with my left hand, she’d smack it with a ruler. I developed quick reflexes, but she still won the game of slaps by making me repeat the first grade. The experience made me resent teachers and distrust authoritarian figures, planting seeds of rebellion and independent thinking at an early age. From then on, instead of asking for help, I preferred to figure things out on my own, developing an insatiable curiosity for taking things apart to see how the worked–toys, bicycles, electronics, locks, etc.

 

When I was introduced to the Rubik’s Cube, I introduced it to a Bic lighter, heating up the stickers and peeling them off to match the colors. I also used the lighter method to open, read and reseal my parents’ mail. And when letters from the school came, stating how many days of school I’d missed, I threw them in the trash.

 

When I lost my house key, I discovered that I could open the door faster using a butter knife than the key. And when my Dad learned of my neat trick, he installed a deadbolt lock, forcing me to climb in and out of my second floor bedroom window whenever I snuck out of the house at night.

 

Finding workarounds appealed to my subversive nature, so it’s not surprising the study of law became not merely a necessity but an obsession after being convicted of first degree murder. I ate, slept, and breathed law, day and night, until my conviction was overturned. (State v.Smith, 966 S.W.2d 1 (No.App.WD. 1997) )

 

With promethean optimism, I returned to the Jackson County Detention Center for a third trial. To stay sharp, I put what I’d learned into practice. I read prisoners’ discoveries and pointed out the strengths and the weaknesses in their cases. I prepared them for trial,  coaching them on their body language and what to say–and what not to say–when testifying. I exposed the prosecutors’ games and the court-appointed public pretenders’ lies. The number of acquittals–not to mention dismissals–piled up over the twenty-four months I waited to be retried. But all the successes combined couldn’t compensate for the devastating defeat I endured when re-convicted and sentenced to life without the possibility of probation or parole and ninety-nine years. (The state’s original plea offer was eighteen years. Had I accepted it, I’d be free today.)

 

When I returned to prison, I went back to work on my case. Despite being convicted again, I felt confident in securing a new trial on my direct appeal. However, I’d made another fatal error besides not taking the state’s plea offer: I had filed a 1983 civil rights action against two of the homicide detectives in my case. (Smith v. Heimer, 35 Fed.App. 293 (C.A.8 2002) ) A jury trial was scheduled to proceed in the federal district court around the same time my criminal appeal was being heard. The appellate court ruled against me, providing the detectives with an affirmative defense of collateral estoppel. (State v. Smith, 90 S.W.3d 132 (No.App.WD. 2002) ) I had to settle the case for a thousand dollars. 

 

During the post-conviction proceedings,my trial attorney (Daniel L. Franco) effectively dodged my subpoena so I couldn’t depose him. (He had been disbarred and moved to California.) The circuit court wrote findings of fact and conclusions of law, finding that I couldn’t establish ineffective assistance without counsel’s testimony at the evidentiary hearing. 

 

Four months later, I was taken into the back office and told to call home, a phone call no prisoner ever wants to be told to make. My dad had passed away. He and I were close.

 

I received an inheritance from his estate. Shortly after, 1099’s (forms required for tax purposes) arrived in the mailroom, stating how much money I had received. A Missouri Incarceration Reimbursement Act (MIRA) suit was filed against me, but I secured a dismissal, arguing a statute of limitations defense. (State ex rel. Nixon v. Smith, 254 SW3d 135 (Mp/A[[/WD/2006) )

 

Unsatisfied with their defeat in the MIRA case, the state appealed the dismissal, and the circuit court’s judgment was overturned. On remand, the court entered judgment against me, ordering the Missouri Department of Corrections (DOC) to collect ninety percent (90%) of any money deposited into my offender account. I appealed but the decision was affirmed. Rather than take a chance on the state locating the money from my inheritance, I hired an attorney with it to litigate my federal habeas corpus petition. 

 

I then focused my attention on the MIRA case but was getting nowhere in state court. I started researching the United States bankruptcy Codes and found–you guessed it–a workaround. I filed a Chapter 7 bankruptcy petition and enjoyed the automatic stay until I was granted a discharge. 

 

The Eighth Circuit Court of Appeals upheld the state court’s decision in my criminal case (Smith v. Kemna, 309 Fed.Appx. (C.A.8 2009) ), and the United States Supreme court denied cert., ending all of my appeals.

 

As I stared at the stack of legal papers, wondering what to do with them, it occured to me that there weren’t any books that I knew of specifically written to help prisoners attack their convictions in the federal courts. So I decided to distract myself from feeling depressed and wrote one: Smith’s Guide to Habeas Corpus Relief for State Prisoners Under 28 U.S.C. Paragraph 2554 and Smith’s Guide to Chapter 7 Bankruptcy for Prisoners, and included example pleadings, detailed instructions, and a blank set of all the required bankruptcy forms. (By filing for bankruptcy prisoners can also discharge debt owed for electronic monitoring fees, housing fees from community release centers, and intervention fees imposed by probation and parole. See In’re Miller, 511 B.R. 621 (May 15, 2014) )

 

I also sent a letter to Prison Legal News (PLN), advising them about how prisoners can defeat their incarceration reimbursement judgments. The letter was unsealed and most likely read by the mailroom because not long after that, the state seized forty-five dollars from my offender account. I filed a motion for contempt with the bankruptcy court, arguing that the state violated the discharge injunction. The bankruptcy court ruled that MIRA judgment was void with respect to all costs that accrued as of the bankruptcy filing, but held the judgment remained valid as to future reimbursement costs, and that the costs incurred by the state since my bankruptcy petition were not dischargeable debts. I appealed and lost; the Eight Circuit Court of Appeals affirmed the lower court’s decision. (Smith v. Missouri, 530 Fed.Appx. 616 (8th Cir, 2013) )

 

As fate would have it, the Missouri Court of Appeals handed down decisions in State ex rel. Koster v. Cowin, 390 S.W.3d 591 (No.App.WD.2013), and State ex rel. Koster v. Wadlow, 398 S.W.3d 591 (No.App.WD.2013), holding that the state could not be reimbursed with assets that were unidentified and not known at the time of the MIRA hearing–meaning the state court could not impose future incarceration costs against a prisoner unless the money was shown to have come from a current stream of income that existed when the MIRA judgment was entered. 

 

I filed a motion under 74.06(b), citing these two cases. The state conceded, filing a satisfaction of judgment motion on October 16, 2013, in the Cole County Circuit Court. All liens against my account were removed. 

 

After filing my petition for clemency, I had helped a number of other guys file petitions for clemency. During that time, it was apparent that prisoners needed a tool to help them, so I began writing Smith’s Guide to Executive Clemency for State and Federal Prisoners. I wanted to do something different than the first two Smith Guides, something with the potential to elevate a prisoner’s understanding of not just the clemency process, but the psychology of themselves and others. By combining the two genres, I was able to create an invaluable tool with the potential to revolutionize the rehabilitation process by helping prisoners understand not just the clemency process but also the psychology behind it. I was able to help other prisoners turn their stumbling blocks into stepping stones.