After eighteen months of cops, courts and attorneys, Sue Smith is back at square one. And she's damn glad to be there.
A new trial has been ordered for Smith, who was found guilty last August of criminally negligent homicide and drug distribution in connection with the death of Bruce Wirtzfeld, one of two men who died of morphine overdoses at Smith's home in September 1994. ("A Deadly Prescription," February 14).
"I feel very good, let me tell you," Smith says in the wake of District Judge William Jones's March 1 order for a retrial. It was Jones who presided over the August 1995 trial at which a jury convicted her. "After a year and a half, it's finally coming out. It's so frustrating to tell the truth over and over and over, and the more you tell the truth, the worse it gets."
In January 1994, Smith's husband, Gary, succumbed to a years-long struggle with rectal cancer. Smith never threw out her husband's belongings--including his prescription painkillers.
Months later, in early September of that year, Smith received a visit from Bill Clogston, a 43-year-old roofer who'd been a friend of Gary's. Smith allowed Clogston to camp out on her sofa for a couple of nights.
On the night of September 7, Smith, Clogston and several of Smith's friends went to a bar to drink and play pool. It was there that they met Wirtzfeld and Billy Been for the first time.
Clogston faded early that night and was put in the back of Sue's van to sleep it off. But when the bar closed down for the night, Smith invited Wirztfeld, Been, and two of her friends back to her house for food and cocktails. Once there, Smith told Been and Wirtzfeld that they could spend the night in the living room. Clogston, who was still asleep, remained in the van in Smith's driveway.
The following day, Smith woke to discover the 26-year-old Wirtzfeld dead on her sofa. Clogston, too, was dead. He'd apparently never left Smith's van. Smith told police she had no idea how the men died. Been, however, said Smith had offered Dilaudid and liquid morphine to him and Wirtzfeld. Smith and her friends denied the accusation, saying the men must have gotten into Gary Smith's stash after the rest had gone to bed.
Months later, after autopsies revealed that the two had died of morphine overdoses, Smith was charged with manslaughter and distribution of drugs in Wirtzfeld's death. There was no evidence linking her to Clogston's use of the drugs, and Smith was not charged in his death.
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At her August 1995 trial, the jury believed Been and convicted Smith. But on October 18, and again a week later, says Smith, she spoke with Billy Been at local bars. Both times, she claims, Been told her that he'd been offered a deal to testify, and that he and Wirtzfeld had found the drugs after Smith and her friends retired for the evening.
Been denies telling Smith any such thing. However, Smith's attorney, Pat Butler of Boulder, argued that the conversations were "newly discovered evidence" and asked in mid-November asking either for a new trial or for the verdict to be overturned. After the March 1 hearing, Jones sided with Smith.
"It didn't even set in for a few minutes," Smith, 47, says of the judge's order. "When it did, I broke down in tears." If Jones hadn't ordered a new trial, her sentencing likely would have been later this month.
Prosecutor Titus Peterson declined to say whether Smith will be retried, and his boss, District Attorney Pete Michaelson, was out of town. Butler says, however, that he thinks Peterson will try the case again.