Ed Walsh
An ailing gay prisoner was freed last week after winning his 3-year-long battle against California Governor Gray Davis for parole. Mark Smith, 47, walked out of prison on Thursday, September 25, for the first time since his arrest for murder in 1985. He became the first person released from prison despite an order from Davis blocking parole. His case can now be cited by hundreds of other prisoners who are fighting the state for freedom.
"I'm just so grateful to everyone who helped," Smith told this writer in an exclusive interview on Monday, September 29. Smith explained that his parole wouldn't have been possible without his attorneys Rowan Klein and Don Specter and without the support of his mother, Dolores Padilla.
Smith was convicted of second-degree murder for the 1985 killing of Rick Diamonon in Topanga Canyon, near Los Angeles. A judge found that although Smith didn't kill Diamonon, he was guilty as an accomplice. Diamonon, a reputed drug dealer, was shot and drowned in a dispute over tainted cocaine. Smith opted for a trial by a judge rather than a jury. He maintained his innocence and said that he never witnessed the killing.
The judge who found him guilty two decades ago was one of the strongest advocates for his parole. Another judge from Santa Cruz County also lobbied for Smith's release because he came forward with information that resulted in the successful prosecution of the killer of a toddler. The judge said he was impressed because Smith put himself as risk by coming forward but didn't ask anything in return.
In an exclusive interview from prison, Smith's codefendant, Kevin Leigh, said that he, not Smith, killed Diamonon, although he said that Smith was involved in the crime. Leigh said that Smith intended to scare Diamonon by firing a gun towards him in the darkness. Diamonon was hit by gunfire in the leg and arm. Leigh said that he then went after Diamonon, fought with him, and drowned him in a creek. According to the coroner's report, Diamonon's cause of death was drowning.
Leigh phoned this reporter from prison on Monday, September 29, to ask whether the rumors he heard about Smith's release were true.
"I wish him the best," Leigh said after getting confirmation. "I wish him success. I hope he gets the proper medical attention," the prisoner added.
Leigh is also fighting for parole. His next parole hearing is scheduled for next month and his lawyer is also challenging the parole board's earlier denials in court.
Smith suffers from AIDS, cancer, heart disease, and Parkinson's Disease. In interviews before he was released, Smith said that at times his struggle for freedom has been motivated by a hope to die free. He is dealing with a new health scare now. He explained that just last month, a radiologist found a couple of suspicious spots in a chest x-ray that could be signs that cancer has returned. One of the first things on his agenda this week is to schedule a doctor's appointment.
The Board of Prison Terms, which only approves parole for about 1% of eligible candidates, ordered that Smith be freed three years ago, but Davis blocked his release writing that Smith was a person "with little regard for human life." Smith's lawyers challenged Davis' veto in Los Angeles County Superior Court. In a sharply worded decision, Judge Keith Schwartz blasted the governor's parole veto and wrote that Davis had confused Smith with Leigh. Davis appealed Schwartz's decision to the California Supreme Court. The high court eventually tossed the case back to the appeals court. The appeals court sided with Smith and ordered his release but Davis again appealed to the Supreme Court. Last Wednesday, September 24, the Supreme Court refused to hear the case resulting in an affirmation of the lower courts' rulings that ordered Smith's immediate release. He walked out of prison 24 hours later.
Smith's case can be cited as precedent for other inmates who are fighting for parole. When the high court refused to hear his case, it also refused to "depublish" the lower courts' decisions in his favor.
Since talking office, Davis has only allowed for parole for seven of the more than 250 cases that have crossed his desk. Five of the seven approvals came since his reelection last year. Davis once vowed to stop the parole of all convicted killers. "I'm overjoyed that Mark was let out," said Judy Greenspan of California Prison Focus who has been fighting for Smith's release for 8 years, "but his release was no thanks to Governor Davis who would have kept him in if he had the chance."
Several years ago, Greenspan tried unsuccessfully to get Smith freed under a "compassionate release" because of his illnesses.
Smith parallels the case of another gay inmate, Robert Rosenkrantz. But with Rosenkrantz, the Supreme Court last year overturned the decisions by two Superior Court judges and two Court of Appeal panels and found that Davis was within his legal right to keep Rosenkrantz locked up. Specter and Klein are also representing Rosenkrantz. Last week, they filed an appeal on his behalf to the US District Court.
"Now it's time to get Robert Rosenkrantz out," Greenspan said. "I really thought he would be let out first, and Mark would get out on Rosenkrantz's coattails." A spokesman for the governor, Byron Tucker, issued the following statement in response to Smith's release: "Governor Davis felt and continues to believe that Mark Smith was not suitable for release due to the extremely violent and wanton criminal act he committed. Mr. Smith and his accomplice severely beat the victim shot him twice and then dragged Mr. Diamonon to a creek where they murdered him by drowning the life out of him. Governor Davis has always tried to ensure that the voice of the victim is part of the parole equation and while Mr. Smith may be a sick man now, he has at least the benefit of life for past 20 years, while the victim has not. "
Smith said he was notified that he won his fight for freedom about 9:30 a.m. on Thursday, September 25. He was called into an office in his prison, the California Men's Colony in San Luis Obispo, because he was told his lawyer was going to phone back with an important message for him. Shortly after getting to the office, the phone rang. It was his lawyer, Don Specter.
"Have you heard the news?" Specter asked, cognizant that a story on Smith's imminent release was in the Los Angeles Times that morning.
"No," Smith answered.
"The court ruled yesterday," the attorney said. "You're coming home."
Although Specter said the release could be delayed until Monday, Smith was later told to pack his belongings for release that same day. Just after 6 p.m. on Thursday, September 25, Smith walked out of the prison's main gate. Just before the final sliding chain-linked fence closed, he glanced behind him, to the left and right. He said that was an acknowledgment to the prisoners who had gathered at windows throughout the complex to watch him leave.
