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00:22The Micro Cassette Player, ordered straight from the 1990s, a pain in the ass to find.
00:35And this is a recording. A juror declares she didn't convict Pam Smart because she was guilty or evidence in
00:43trial, but on media bullshit.
00:46This is so old, I've been cautious not to play it. I've only played it once, and this is the
00:51first time I'm going to play it for anybody else.
00:56The world was told she was a teacher who took a teenage lover and began an affair that led to
01:02murder.
01:03This really was the trial of the century, long before O.J., a major media circus.
01:08I pulled the trigger.
01:10What did she eventually tell you?
01:12That she was going to have somebody kill Greg.
01:14Is the defendant guilty or not guilty of the offense charge?
01:17Guilty.
01:18There is still only one person in the state of New York who is sitting in prison tonight with a
01:23sentence of life with absolutely no possibility of parole.
01:27Smart has now served more than 30 years in prison for her role in her husband's 1990 murder.
01:33All of her appeals have been denied.
01:36Pamela Smart will stay behind bars.
01:40Pamela Smart never should have gone to prison.
01:42She was convicted based on false evidence.
01:44So we filed a petition to get her back in court to get a fair trial.
02:18We'll be right back in court to get her back in court to get her back in court.
02:23Hi, how are you?
02:24It's been a long time.
02:25Are you okay?
02:26Yeah, I'm okay.
02:26How are you?
02:27I'm all right.
02:27Hi.
02:35My name is Pamela Smart.
02:38I'm accused of being an accomplice to the murder of my husband, Greg, but I am not guilty.
02:45You've been through many appeals processes.
02:48Your new lawyer is arguing that your constitutional rights were violated.
02:53They were.
02:54During trial.
02:55And that you didn't get a fair trial.
02:56I did not.
02:57In 1990, Smart worked for the school district as a media coordinator.
03:02At 22, she was accused of convincing her 15-year-old lover, Billy Flynn, and some of his friends to
03:09kill her husband, Greg.
03:11Pam, did you have anything to do with your husband's murder?
03:13Pete Randall was accused of holding down Greg Smart when Billy shot him.
03:21Vance Latamy provided the getaway car and the gun that was used in the murder.
03:26And Raymond Fowler was a passenger in that getaway car.
03:30There were these kids who were sort of obsessed with her because of what she looked like.
03:33Like, because she drove around in a cool car, she listened to, like, metal all the time.
03:38She was a rock star to them.
03:39I wanted to be with Pam, yes.
03:43I didn't want to kill Greg either, though.
03:45I was young.
03:46I was a woman.
03:47I had done something taboo.
03:49I was accused of something horrible.
03:57Pam Smart was charged with accomplice to murder one, conspiracy to commit murder, and witness
04:03tampering.
04:06We often hear of the O.J. Simpson double murder trial as being the trial of the century.
04:12Well, guess what?
04:13Pamela Smart's case was the very first murder trial to ever be televised gavel to gavel.
04:21When I was 15, I would run home from school every day to watch the Pam Smart trial because
04:25I knew that all the women in the neighborhood would be gathered in my living room.
04:29Well, I'm not the first person in America that ever had an affair.
04:32They were, like, calling out at the screen, she's a whore.
04:35And all I knew is that women hated her.
04:39And I couldn't quite figure out what it was, but I knew that I was supposed to hate her, too.
04:44Welcome back to the In Between podcast.
04:46I'm your host, Mel Barrett.
04:47And fast forward 20 years or so, and I've completely forgotten about Pamela Smart.
04:52She's locked away in prison.
04:54I don't have to ever think about her again.
04:55She's getting what she deserves.
04:57And then I saw this documentary that HBO put out called Captivated.
05:01From Boston, from New Hampshire, from all over New England.
05:04And then it's national news.
05:05In fact, around the world is trying to cover this story.
05:08It is gigantic.
05:08That all of New Hampshire, if not the nation, is inflamed.
05:14And it really struck a nerve with me.
05:16And I saw Pam Smart on the screen for the first time as a human being.
05:20And hearing about all the things that might have gone wrong with her trial, I started thinking,
05:26Oh, shit.
05:28And the first thing I did, and I have never done this before, I wrote her a letter.
05:32The next thing I knew, Pam Smart was calling me on the phone.
05:35An incarcerated individual at New York State Department of Corrections and Community Supervision.
05:41I was saying, I owe you something.
05:43What happened to her and around her?
05:45And the only thing I can do is, I'm a writer.
05:48I can tell your story.
05:50In episodes one through eight, I broke down who the players are, how the media twisted
05:54a story to create an image of Pamela Smart that she's never been able to shake off.
05:59Early on in the process of the podcast, when I was starting to investigate, looking through
06:02case files, things like that, I was introduced to Matt Zirnhalt, who is Pam's attorney.
06:07Hey.
06:08Come on, buddy.
06:08Good.
06:09This unlikely duo has been reinvestigating the strongest arguments for Pam's petition.
06:15For more than a year and a half.
06:17I got an email today from a journalist asking, why is Pam trying to get out of prison again?
06:24They've spent the past 35 years painting her out to be this monster, and they believe that
06:28she is this monster.
06:29We found quite a few issues that denied her what she's constitutionally due.
06:36I'm now representing her in a petition to challenge her conviction.
06:39Over the past 35 years, Pam has filed multiple appeals to overturn her conviction or ask for
06:46mercy, parole, resentencing, clemency.
06:50Each attempt rejected.
06:52Without the tapes, it would have been impossible to put her in jail.
06:56Now she's moving to a kind of last ditch effort, which is called a habeas petition.
07:01There's a reason we call habeas petitions last ditch.
07:05They are very, very hard to win.
07:09Her real-time thoughts about how that impacted the jurors every day with the camera.
07:13The first issue is that the state manipulated evidence.
07:18Presented at trial were one telephone recording, a wiretap, and then two body taps.
07:24A secret conversation with Pam instigated by a young student, Cecilia Pierce.
07:38This is a conversation recorded between Cecilia Pierce and Pamela Smart.
07:43Who is Cecilia Pierce?
07:44A teen girl that fell under the spell of Pam Smart like the other students did.
07:51Cecilia had just heard that she was going to be indicted for helping the boys locate a gun
07:57for murder.
07:59She had real fear of being incarcerated as well.
08:03So she met with the police and she put on a wire to try and elicit incriminating statements.
08:11I'm just like a lion, you know.
08:13Well, you know, if you tell the truth, I'm going to be a murder.
08:17Right.
08:19Now you know you're lady on the way to stand.
08:21You know, she's going to put you on that.
08:22And I'm going to say, did you know?
08:24You never say no.
08:25Did Pam do this?
08:26No.
08:28If you tell the truth, you are probably going to be arrested.
08:33The audio tapes were absolute shit.
08:37They played them in front of the whole court, in front of the jury, everybody.
08:41I applied to use in the car.
08:43I'm just going to sit and wait for out here.
08:44She doesn't have enough time when I get going.
08:46Because I don't, I don't want to keep the half of the two on.
08:49Everybody in the courtroom, for the most part, had headsets.
08:51At one point, Greg's father stood up, ripped the headset off and said, I can't hear these
08:56damn things.
08:57What are they saying?
08:58And the state presented transcripts to the jury the first time they heard it to read along.
09:03The transcripts were created by an unknown person in the DA's office.
09:10They were never certified.
09:10Did you realize that that transcription was made by somebody who was working in the prosecutor's
09:16office?
09:16I had absolutely no idea.
09:20It's so biased.
09:21It's like asking my mother to write the transcript or something.
09:25Come on.
09:25That's crazy.
09:26Did you recognize the words that were in that transcription?
09:29Well, some of them, yes.
09:31But I said to my lawyer, like, there's big pieces missing out of this.
09:35There's things I remember saying that are not here at all.
09:38The way it comes out on paper, it doesn't account for any overlapping voices.
09:43And so I did, from the very beginning, say, hey, there's something wrong with these.
09:48These are not accurate.
09:49Do you think the tapes were doctored?
09:51Yes, I know they were.
09:53In what way?
09:54I know that parts, things I said, didn't end up on the tapes.
10:01And I know that conversations were enhanced or tampered with.
10:09We told Smart, we took copies of the tapes she said were doctored,
10:13to an audio expert.
10:14He told us there were irregularities, but they could be from bad equipment.
10:19No sign of deliberate doctoring or erasures.
10:22And this was the key piece of evidence against you.
10:25Huge.
10:25It was, according to my own jury, it was the piece that made them convict me.
10:30When I actually see the transcripts for the first time,
10:33and I now have an access to the actual wiretaps,
10:37I'm listening and I'm reading along.
10:39I'm doing what the jury was doing.
10:40I'm going, yeah, yeah, yeah, yeah, that's what I'm hearing, that's what I'm hearing.
10:43And then I hear one word off.
10:45And I thought, okay, well, if there's one word off here,
10:49are there other words off?
10:51And why is this one word off?
10:52And that moment was a big aha moment for me.
11:08So what I'm pulling up right here are the transcripts.
11:12The transcript makes a big stretch to get to Pamela Smart saying, quote,
11:17we can't talk about shit that should have happened.
11:20That's what they put in the transcripts.
11:22What I'm hearing and what it sounds like on the tape to me
11:26is Pam saying, shit, that happened.
11:29And the reason why should and that are actually very important.
11:33So if Pam is saying should, which is what the transcript says she's saying,
11:38then it's showing that she might have known about it.
11:40But if she says that happened, then she doesn't know about it.
11:44But they made it sound like she was confessing to this crime.
11:49She doesn't actually do that.
11:51Do you think you said the things that the prosecutor's office filled in on tape?
11:56Not all of them.
11:57Absolutely not.
11:58No.
11:59When we realized how biased the transcript was
12:02and that we couldn't really hear the words assigned by the state,
12:07we started reaching out to experts in the field of cognitive bias.
12:15Cognitive bias refers to things that impact how we think.
12:19It's just how our brains are wired.
12:21And normally it's not a bad thing.
12:23It's not the end of the world.
12:25But in criminal investigations, the stakes are much higher.
12:29If we know that people can look at the same piece of evidence
12:33and come to different conclusions, one of them has to be wrong.
12:38My name is Marion Davidson, and I am assistant lecturing professor
12:42at Loyola University, Maryland, in the Department of Forensic Science.
12:45So we are going to continue on our lecture for reading and summarizing scientific articles.
12:50We were lucky to be able to partner with Professor Davidson
12:55in submitting the audio and alternative transcripts to a sample jury
13:01to see, did this actually result in cognitive bias?
13:04Did this affect the outcome?
13:05Most of the data in the middle.
13:07We had 191 participants, and the important thing about them
13:11is that they were all eligible to serve on a jury.
13:13So our participants, as closely as we could,
13:16mimicked the jury that would have been involved in the original Pam Smart case.
13:21In this study, we picked clips from the transcript
13:23that were particularly incriminating.
13:26For example, you killed some guy.
13:28But when we listened to that same section in the audio,
13:31it was unclear.
13:32And some people heard a different phrase,
13:34like you helped some guy.
13:41Thank you so much for being here today.
13:44Overall, what's going to happen is I'm going to play some clips of audio,
13:47and you guys are just going to write down what you hear.
13:50All right, you guys ready?
13:54All you're doing is writing down what you hear.
13:59We have three groups.
14:01Each group is getting a different piece of paper.
14:04Group one has nothing on the paper.
14:06They are not getting any transcript.
14:11Group two is getting the transcript that is from the original trial,
14:16and group three is getting the transcript that is alternative, but plausible.
14:26What are we hearing?
14:27You helped that guy.
14:29You helped that guy.
14:31Killed that guy.
14:32You killed that guy.
14:33I'm sorry, you killed that guy.
14:34Okay, so both helped and killed.
14:38All right.
14:39Flip number two.
14:42What did you hear?
14:45This table.
14:47What did you guys hear?
14:48Man, I just wish you never told me about Greg.
14:50I wish you'd never told me about Greg.
14:52Excellent.
14:53Third table.
14:54What did we hear?
14:54I heard wish never told felt great.
14:58Wish never told felt great.
15:00Excellent.
15:00I heard it felt great.
15:02It felt great.
15:03Is it fair to say you guys were not super confident in what you had heard?
15:08Yeah.
15:08Yeah, not confident at all.
15:10So without a transcript, we're hearing nothing that is on either of the transcripts.
15:15And we're also seeing that when we have a transcript, it is priming us.
15:21It is giving us an expectation that then we tend to hear whatever the transcript says.
15:28That's the gist of our study.
15:30If you are given a transcript and the audio is low quality, it sets a primer.
15:35It makes an expectation.
15:36And then that is how you interpret what you hear.
15:41Our study showed that transcripts impact what people hear.
15:45One of the things that Paul Maggiato did to sell the transcripts to the jury is he put
15:53what he thought were the most important bits on these giant whiteboards.
15:56And during his closing arguments, he would put them up in front of the jury.
16:00This board really encapsulates pretty much everything you need to know.
16:05When you put a prop up like that in front of the jury and act like it is a piece
16:10of the
16:10evidence, then I think the jury buys it.
16:13The audio evidence and the transcripts were the smoking gun of the case.
16:18It's very possible that without the audio and the transcripts, Pam wouldn't have been convicted.
16:27To win a habeas petition on something like this, the audio would have to literally be the
16:34opposite of what it was.
16:36There's nuances in the audio on an issue that has already been litigated and appealed is not
16:44going to lead to Pam Smart being set free.
16:51You also took the stand.
16:53Do you regret that?
16:54No, I do not.
16:55I do not.
16:56I never would want everyone else in the world speaking for me all the time.
17:00And I feel like I didn't have anything to hide.
17:04Why Pam Smart took the stand, I will never know.
17:08It is wisdom handed down over the generations.
17:14Don't take the stand.
17:16I just told her that I had known about the murder before it was going to happen.
17:34Imagine the worst things you've ever done in your life and they're broadcast live, your
17:39mom and dad are there, the whole world's watching and you're humiliated.
17:46But if Greg was dead, you wouldn't have to expose him to the fair, would you?
17:51No.
17:55Unless, like, this happened.
18:02So your lawyer, in closing arguments, in the trial, says that you're guilty of witness tampering.
18:09Well, I just finished testifying and then he got up and he gave this, like, rambling closing
18:15argument.
18:16And then in the middle of it, he says, well, is she guilty of witness tampering?
18:19And yeah, she is.
18:20She's clearly engaging in acts that constitute witness tampering.
18:25No doubt about it.
18:26In my head, I was saying, what is he doing?
18:30It was a witness intimidation charge where she was basically asking Cecilia Pierce to lie on
18:37the stand.
18:38And if you're not arrested, you're going to have to go and you're going to have to
18:41send no, you're going to have to send people, you're going to have to send JR, you're going
18:44to have to send me to the f***ing claimants for the rest of our entire life.
18:48And unfortunately, that's the situation you're in.
18:52He assumes a strategy of conceding one count by dangling to the jury, convict on this one,
19:01this easier one.
19:04If the defense attorney had contested what the jurors could clearly hear on tape, he
19:09would have totally lost all credibility if he had said, oh, that didn't happen.
19:16They could hear it on tape.
19:18And sometime in the afternoon, Pamela Smart's fate will be in the hands of the jury.
19:24I think I'd skipped school that day.
19:25I think my mom had, like, let me stay home because we knew the verdict was coming.
19:28And we were all watching it, sitting in the living room.
19:31Has the jury reached a verdict on each of the three offenses charged?
19:34Yes, we have.
19:35What verdict did you think the world was awaiting?
19:38Not that Pam Smart was not guilty.
19:40That wasn't the story.
19:44Guilty or not guilty of the offense charged?
19:46Guilty.
19:47Guilty!
19:50I am required and do hereby sentence you to the New Hampshire State Prison for Women for
19:55the remainder of your life without the possibility of parole.
19:58Apparently in New Hampshire, accomplice is a very distinct charge from the actual first
20:03degree murder charge.
20:04And it's not mandatory.
20:05It says first degree murder has a mandatory life without parole sentence.
20:09It does not say accomplice to first degree murder has a mandatory sentence.
20:14When I started looking at the statutes, there was this one little word in there that stuck
20:18out to me, and it's the difference between shall and may.
20:23And that is, if the statute said a person who is convicted of accomplice to first degree
20:30murder shall serve a life without parole sentence, that means absolute.
20:35If the statute says a person who is convicted of accomplice to first degree murder may serve
20:42a life without parole sentence, that means the judge has something to say about that.
20:45So when the judge sentenced her and he said, I mandated to do this, he was wrong.
20:49With regard to what the judge said in court about the sentence, there is some semantics
20:55here.
20:56It's a little unclear whether the judge is saying that he felt mandated or he was legally
21:03obligated.
21:05Is that something that could potentially resonate with the judge?
21:10Of all of their arguments, this is probably the strongest.
21:20One of the previous points has to do with media, right?
21:23It would be virtually impossible, having not been sequestered until the last day and having
21:29been out in the community saturated by publicity, that they would not have been affected and impacted
21:36by what they heard.
21:37And when they walked in, they walked right past the newspaper stands with the She's Guilty
21:43banner headline, that even if you turned your face, you already saw it.
21:54Through Mel's investigation, she had heard about a micro-cassette tape between a journalist
21:59and a juror.
22:14The journalist asked her, why did you convict Pamela Smart?
22:16And she said she had already tried to have that other girl murdered, so I knew she had
22:20probably done it again.
22:21The only way that Charlotte Jeffs would have that information is if she had read it in
22:27a couple of very specific articles that had come out at the time referencing something
22:33that happened behind the scenes that was being investigated but never came to fruition and
22:37never made it into the trial that said that Pamela Smart was trying to have Cecilia Pierce
22:42killed.
22:43This interview with the juror tells us it wasn't the evidence, it was tabloids, it was headlines,
22:48it was the media.
22:49If this story were a made-for-TV movie, and it surely will be, you might not believe it.
22:54One could make an argument that your punishment vis-a-vis the male perpetrators could be seen
23:02through the lens of gender bias.
23:04The media coverage of this case would never have been as bad as it was if I were a male.
23:08You know, I feel like I was judged because women are not supposed to do bad things, women
23:14are not supposed to have affairs.
23:16And that false image has been propounded again and again, not just by tabloids, but movies.
23:24You know, Nicole Kidman.
23:26Did you get the gun?
23:27No, not yet.
23:30Why not?
23:32I don't know, I guess I thought you'd ask Lydia.
23:35I can't ask Lydia, you have to ask Lydia, don't you understand?
23:40We're not conjuring up new issues to give her a reason to get into court.
23:45We're finding that there was a fundamentally flawed trial, and these issues were always
23:50there.
23:51If you don't agree, don't believe them, read her petition.
23:54Tell me where we're wrong.
23:55The problem for her is now that her appeals are exhausted, she needs a narrative.
24:02None of the new things that they found and the new arguments they're making seem to change
24:10the reality that Pamela Smart orchestrated this, and it only happened because she wanted
24:19it to happen.
24:20She told me that we'd go in through the bulkhead.
24:24They still had very specific testimony from the boys and from Cecilia Pierce about exactly
24:34what Pam Smart had told them.
24:37That we could ransack the apartment, the condo, take what we wanted, and when Greg came home
24:41we would have killed him.
24:43And it all kind of fit together in a way that was quite damaging for Pamela Smart.
24:50Pam had asked, how should she react if she can solve the crime's grave death?
24:55The state approached them and said, if you testify against Pam and say she was involved,
25:03we'll only charge you with second degree murder.
25:06Might do 20 years.
25:08You're going to get a life after prison.
25:10You will see outside again.
25:12So, of course, they threw Pam under the bus.
25:16They were 17.
25:17They didn't want to die in prison.
25:20Billy Flynn, the lover, the trigger man, took a plea for a lesser sentence and he got 28 years
25:28to life.
25:28He was released in 2015.
25:32The co-defendant, Pete Randall, held Greg Smart's head back with a knife to the throat when he was
25:41shot by Flynn.
25:43He got 28 years to life and he was released 2015.
25:50Then there is Vance Latamy Jr.
25:53He was the getaway car driver and he also supplied the weapon.
25:58He got 18 years to life behind bars.
26:02He was released in 2005.
26:04Then, last but not least, is Raymond Fowler.
26:07He was sentenced to 15 to 30 years for being the passenger lookout and he was released much
26:13earlier in 2003.
26:16And now we have all the co-defendants out and living life and it just baffles me that all
26:26of the people that say, hey, to release Pam Smart would diminish the value of Greg's life.
26:33How have you changed than the 22-year-old Pam Smart?
26:37So much.
26:37I was reckless when I was younger.
26:39I didn't think things through.
26:41I was more impulsive, as most people are when they're 22 years old.
26:47You've been taking a lot of action.
26:49Well, I got the three master's degrees and then I just recently got a, well, a few years
26:54ago, PhD in biblical studies.
26:56Now 58, Smart is one of the longest serving women in New York State prisons.
27:02During an earlier appeal for commutation, she got hundreds of glowing letters of support,
27:07many writing that she had become a model prisoner.
27:10We talked about your taking full responsibility for your husband's death, which is a semantic
27:19thing, but it's different than saying, I plead guilty.
27:23Right.
27:23Right.
27:23I know that my husband would probably be alive still if it weren't for my poor choices.
27:29I accept responsibility for that.
27:32But does that mean I have to be here forever?
27:34Pamela Smart needs to stay behind bars as long as Greg Smart stays in his coffin.
27:44When he gets up and walks out of that coffin and resumes his life, then she can walk out
27:49of that jailhouse and resume her life.
27:51The law has evolved.
27:53Science has evolved.
27:54The law needs to keep up with this evolution where we can point out that justice was not
28:00done.
28:00I cannot say with 100% certainty that Pam is innocent of planning the murder of Greg Smart.
28:08I know what I believe.
28:10This woman did not receive a fair trial outside of guilt or innocence.
28:14It's been 35 years in a maximum security prison.
28:59It's been 35 years in a while.
29:26It's been 35 years in a while.
29:30Transcription by CastingWords
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