Judge's order moves man off death row

Ten years ago, a Halifax County jury gave Clinton Cebert Smith a death sentence for fatally poisoning his 6-year-old daughter, Britteny. They found that he had gone to the home of his former girlfriend and laced cherry Kool-Aid with a pesticide. His two younger children survived.

But this month, state Superior Court Judge John R. Jolly Jr. ordered Smith off death row. Jolly found that Smith, 48, is mentally retarded and therefore not capable of understanding his actions. Testimony at the trial suggested two motives: Smith did not want to continue paying child support and he was angry at his former girlfriend for seeing another man.

Smith's lawyers say the ruling means more than sparing Smith a lethal injection. They say it is another sign of Smith's innocence in a case that they contend has been twisted by hidden evidence, misleading testimony and inadequate representation by the defense lawyers during the trial. The lawyers representing Smith now are hoping appellate judges will award him a new trial.

Smith can't read or write. His intelligence quotient is 70 or below, and he has "significant limitations" in basic life skills. His attorneys say he could not dream up and execute the poisoning of his family.

"The fact that he's retarded eliminates him as a suspect as far as we're concerned," said Durham lawyer Mark Montgomery.

Smith is the 14th person removed from the state's death row for mental retardation, according to the Center for Death Penalty Litigation. A change in state law in 2001 prohibited mentally disabled people from being executed. The following year, the U.S. Supreme Court outlawed executing those with mental retardation.

The state Attorney General's Office declined to comment on the case, other than to say it won't oppose Jolly's order. The original prosecutor, W. Robert Caudle II of Halifax County, stands by the conviction.

"I think the steps that he took to carry out this heinous crime indicates that he certainly had the wherewithal," said Caudle, who was the district attorney for Halifax County at the time.

Hospital visit

According to court records, on Jan. 16, 1996, Smith visited Sylvia Cotton's apartment in Scotland Neck several times while no one else was present. During one visit, Smith left balloons and a mug that said, "I love you."

Later that night, Britteny and another sibling had diarrhea, stomachaches and vomiting. They were taken to the hospital, given an injection for what the doctor thought was a 24-hour virus and then released. The next night, Cotton told investigators, she found Britteny cold and unresponsive in bed. The child was rushed to the hospital and, as doctors attended to her, another sibling fell ill. Britteny was pronounced dead a short time later.

According to court records, investigators found that Smith had brought a crop pesticide called Di-Syston to the home and put it into the Kool-Aid. Cotton testified that when she served the Kool-Aid for dinner that night, one of the children complained about the taste. Cotton said she tasted it and found it gritty and bitter. She poured it out and made a new pitcher.

Two of Smith's co-workers testified he had taken some of the pesticide in a brown paper bag from the farm that employed them. An investigator later found a paper bag in Cotton's trash that he said contained a substance that tested positive for Di-Syston.

Smith has consistently denied the poisoning. The jury convicted him of first-degree murder and three counts of attempted first-degree murder.

Lisa Miles, a lawyer with the Center for Death Penalty Litigation, took over Smith's appeals in 2001. Montgomery, her husband, joined three years later. What Miles found, they say, raises questions about Caudle's case against Smith.