New trial may be sought in poisoning death

Lance Martin. Herald Senior Staff Writer

HALIFAX— Halifax County District Attorney Bill Graham hopes a new trial will not be sought for a man who escaped the death penalty last month for the 1996 poisoning death of his daughter.

He points out that the hearing that removed the convicted murderer from death row wasn’t about the need for a new trial.

That hearing centered on whether 48-year-old Clinton Cebert Smith was mentally challenged when he poisoned his daughter, Britteny, with pesticide-laced Kool-Aid. Smith’s two younger children survived the poisoning. “The question was whether he was mentally retarded. The answer to that question was yes,” Graham said.

He does not know what motions the Durham-based Center for Death Penalty Litigation may raise now. The attorney handling the case could not be reached for comment.

A spokesperson did say Friday the Center planned to request a retrial in the case, although she did not know when or how the motion would be worded.

Graham, however, said should a retrial be ordered, he would be “conflicted out for any purposes” because he represented Smith in a child support issue at the time of the murder. “I hope this (the November order) puts it to rest,” he said.

Smith was the latest prisoner removed from North Carolina’s death row after a judge ruled the condemned man wasn’t capable of understanding his actions and under state law those who are mentally retarded cannot be executed.

With Superior Court Judge John R. Jolly Jr.’s ruling in November, Smith will now serve life without the possibility of parole.

The Associated Press reported his attorneys are appealing his conviction in hopes of getting a new trial.

The Center  said Smith is the 14th prisoner removed from death row in North Carolina since the law was changed in 2001. Executions of the mentally retarded were banned in 2002 by the U.S. Supreme Court.

Smith denied poisoning the children, but prosecutors contended that Smith didn’t want to continue paying child support and was angry at his girlfriend for seeing another man.

The Center told the Associated Press in November the ruling gives them a chance to seek a new trial in a case where they believe the inmate is innocent. They say he can’t read or write, has an IQ of 70 or less and is limited in his life skills and couldn’t plan and execute the crime.

“The fact that he’s retarded eliminates him as a suspect as far as we’re concerned,” attorney Mark Montgomery told The News & Observer of Raleigh in November. But 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,” Caudle said in November.

Court records show Smith went to Sylvia Cotton’s apartment in Scotland Neck while no one was there and left balloons and a mug that said “I love you.” Investigators said Smith also put a pesticide in Kool-Aid in the refrigerator and Cotton served it for supper on Jan. 16, 1996.

Cotton said before the children got sick, they complained about the taste of the drink and she sampled it and said it was gritty and bitter. She poured it out and made another batch.

Two of Smith’s co-workers at a farm said he brought the pesticide Di-Syston home in a paper bag. Investigators found a bag in Cotton’s trash and it tested positive for the poison.

The Associated Press reported a toxicologist hired by the state questioned whether the amount of pesticide found in the girl’s blood was enough to cause death or severe illness, but that information wasn’t given to Smith’s original trial lawyers.

The state contended that Smith had only borderline intellectual problems and was not retarded.