Smith appeal reaches Supreme Court

An appeal to re-examine Marty Smith’s guilty verdict will be heard by the Wyoming Supreme Court in September. Smith was sentenced to up to 18 years in jail after a jury convicted her of accessory before the fact to involuntary manslaughter and to aggravated assault and battery related to the death of local man Doug Haar.

Haar died in the early hours of August 1, 2018 following an incident that involved Smith and her then-boyfriend, Jesse Johnson.

Smith and Haar were said to have bickered and then begun pushing each other. When Johnson became involved, he took Haar to the ground and placed him in a chokehold, which resulted in Haar’s death.

Johnson and Smith were tried separately, with Smith charged as an accessory to the crimes for which Johnson was accused of. Johnson, whose trial came second, was acquitted by the jury on all charges.

Smith’s appeal was filed on the basis that Johnson was found not guilty. In documents filed with the Wyoming Supreme Court by the Office of the State Defender, Smith’s counsel argued that an appeal should be considered because:

“To prove the charge of accessory before the fact, the State was required to prove commission of the underlying crime…That is, if Mr. Johnson’s actions were legally justified, there was no underlying crime committed to which Ms. Smith could have been an accessory.”

Smith’s counsel also argued that, based on the timing of the trial, it appears that Johnson was not available to testify because of his own charges related to the same events:

“Therefore, Ms. Smith may have been limited in the presentation of her evidence as to whether Mr. Johnson’s actions were justified. This situation also put Ms. Smith in the position of having to defend not only her actions, but also the actions of Mr. Johnson, who was neither a party nor an available witness in her trial.”

The appeal itself is based around the question of whether the District Court erred in not providing the jury with an instruction on the theory of “defense of others”. In Wyoming law, a person who comes to another’s defense steps into the place of the person they are defending and can assert that person’s right to self-defense.

During Smith’s trial, when jury members were given a document outlining the details of the law as they applied to the various elements of her case, the appeal argues that they were not given information explaining the theory that Smith is not guilty because she was acting in defense of Johnson, who had a lawful right to defend himself.

Smith’s counsel argues that the jury was not clearly instructed in this aspect of the law and thus did not know that her actions could have been “lawful uses of force rather than acts of aggression”. There is therefore, counsel suggests, a reasonable possibility that the verdict could have been different but for this error.

The Wyoming Attorney General’s Office, which is defending the appeal, argues against this. In a rebuttal, the office argues that the jury was instructed in that document about Johnson’s right to self defense and told that Smith could not be convicted as an accessory if the jury found that he acted in self defense.

Therefore, goes the argument, an additional instruction on defense of others would have been “cumulative and confusing” and therefore Smith’s conviction and sentence should be upheld.

Oral arguments are scheduled to take place on this appeal via videoconference on September 23 at 2:40 p.m. Kirk Allan Morgan, Chief Appellate Counsel, and Desiree Wilson, Senior Assistant Appellate Counsel, will represent Smith, while Joshua Charles Eames, Senior Assistant Attorney General, will represent the State of Wyoming.