Kelli Smith is Innocent, Missouri Highway Patrol Incompetent

unsplash-mcmahon-womanIt’s been a while since I’ve written about a crash, but I couldn’t let this one go. On the surface, it looked like a head-on collision caused by a drunk driver speeding the wrong way down the interstate, like the case I wrote up involving Reagan Hartley some time ago. The Missouri Highway Patrol and Judge Dalton thought so too, and essentially railroaded Kelli Smith into a conviction.

However, they were wrong, and thankfully Smith’s lawyer, Jennifer Bukowsky, didn’t give up, and convinced the Missouri Court of Appeals to take another look. It’s been a while since I’ve seen such incompetence in a traffic case. Let’s take a look at the tragic timeline of events as outlined in the St. Louis Today and try to make some sense of everything that happened.

The Crash

On the night of February 25th, 2012, Kelli Smith, then 22, was at a bar with friends in Columbia, Missouri, and then drove a number of male acquaintances to their home nearby. She remembers nothing from this point on.

Three of the seven men at that home were later interviewed, and each denied they had had sex with Smith, though all stated they had been drinking. Everyone denied seeing Smith with drinks, and no one remembered who had last been seen with her.

However, later that evening, she reversed her Nissan Xterra into a parked car in Columbia, then entered Interstate 70 in the wrong lane.  At 3 AM she caused a minor collision in Callaway County, and then at around 3:30 AM crashed into Thomas David Sullivan II, 35. He unfortunately perished at the scene.

Smith was discovered naked below the waist with her pants crumpled in the back seat of her vehicle. She was suffering from a brain injury. Her underwear, purse, cell phone, and one of her shoes were missing. She was later discovered to have matching bruises on her inner wrists, cervical injuries, finger marks on her inner thighs, and hand prints on the inside ceiling of her vehicle.

Smith had no memory of anything beyond driving acquaintances home that evening. Paramedics would later state her breath had smelled of alcohol, but that they had not noticed her missing pants at first.

At University Hospital in Columbia, where she had been airlifted, she did not regain consciousness for a week. However, the night she arrived, a doctor had examined her, noticed thigh bruising, and ordered a sexual assault exam, suspecting rape.

The Blood

More than 7 hours after the collision, the Missouri Highway Patrol drew her blood and determined her BAC to be 0.085, and assumed it had been significantly higher many hours earlier. Cpl. Miller had a nurse draw the blood, although he did not retrieve Smith’s jeans to test them for evidence.

The blood draw on February 25th was not sterile, and it was done without a warrant or an arrest. He did nothing with the blood sample for two days besides store it in his patrol vehicle before he dropped it off at a court house. It did not undergo refrigeration until March 6th or testing until March 12th, despite patrol policy requiring such samples be kept from extreme temperatures. Miller later testified he’d kept his car in a heated shed and hadn’t exposed it to freezing temperatures while driving.

During the trial, an expert for the defense testified BAC levels could increase due to (alcoholic) fermentation during improper storage, especially if that improper storage occurred over time. The witness also stated that delayed or overly general tests could miss frequently chosen date rape drugs.

The test used on Smith’s blood also missed a pair of drugs given to Smith in the hospital. An expert testified that either drug could also have been used as a date rape drug.

Bukowsky stated that too little blood had been drawn from Smith to allow for further tests to be conducted.

The Judge and Jury

Smith was charged with involuntary manslaughter in May. Smith’s attorney, Jennifer Bukowsky, mounted the defense that Smith had been given a date rape drug and then sexually assaulted. She argued the MHP didn’t look at this possibility, even though the crash was a strange one and Smith’s injuries should have triggered warnings.

During the trial, Eric Stacks, a Highway Patrol investigator with the MHP, testified that due to his prior involvement in dozens of rape cases, he had been consulted regarding the likelihood of sexual assault in this case. He stated that Smith had been examined and no semen had been found. He also added that after reviewing the accident scene and photographs from the hospital, he discussed the case with other investigators and decided none of her injuries necessarily occurred due to any factors beyond the crash. He closed his investigation at that point.

When cross-examined, Bukowsky questioned Stacks regarding the bruises on Smith’s cervix.

Smith responded that he did not know what a cervix was.

The Montgomery County Circuit Judge, Wesley Dalton, made a number of rulings before the trial to prevent Bukowsky from mounting a full defense of involuntary intoxication. Specifically, he stated she could not mention that the case involved a potential sexual assault and date rape drugs when selecting a jury or when making opening statements. While she was later allowed to make some of these inferences during the trial, Bukowsky stated the judge still restricted her ability to mount a full defense.

During the trial, unbeknownst to Bukowsky, one juror had stated during deliberations that she had been raped four times and believed Smith would have remembered the trauma of rape had it occurred. Two other jurors had apparently had loved ones who had been subjected to date rape drugs and they had stated that Smith would not have been capable of driving had she been drugged.

Upon learning this after the trial, Bukowsky stated these jurors could have been stricken before selected, or at least questioned further regarding their potential partiality. However, she did not have this information prior to or during the trial.

The jury convicted Smith in December 2014. She was sentenced to 5 years in prison.

Bukowsky appealed.

The Appeal

Three judges who formed the Missouri Court of Appeals threw out her conviction and sentence on December 22, 2015. They noted the jury wasn’t informed about potential issues with interpreting Smith’s blood-alcohol content, and noted that they might have examined the evidence differently if they’d known better.

Mike’s Thoughts

This is one of the most unfair auto cases I’ve looked into in years. So many factors should have prevented this case from going to trial to begin with, or from being completed as a trial as the facts stand. Smith should never have spent a minute in jail, and should be compensated by the state for their gross incompetence.

How did things go this wrong?

Multiple jurors were extremely uneducated and highly prejudiced regarding the varied effects of date rape drugs (because yes, much like alcohol, they can drug people to the point of erasing memories of any conceivable trauma, and yes, they can wear down over time enough to leave people capable of driving yet incapable of driving safely, much like alcohol). The judge made a number of questionable and sexist decisions to cripple the defense (why else would he effectively bar Bukowsky from suggesting Smith might have been drugged and raped, rather than simply drunk?). The “highway investigator” did not know what a cervix was (how is he still employed in any capacity related to the determination of assaults involving the female body?). The highway patrol officer drove around with perishable medical evidence (the blood of a drugged rape survivor) in his car for days. The hospital drug test missed multiple potential date rape drugs administered by the hospital. Smith was discovered without pants, underwear, or any memory of the last several hours.

This is insanity.

We have a long way to go in our treatment of sexual assault survivors in this country. Well, in every country. But right now my focus is on this country.

Kelly Smith is innocent. The Missouri Highway Patrol is incompetent. Thomas Sullivan is dead, and his murderer, and Smith’s rapist, is walking the streets as you read this.

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