All charges in the alleged infant-for-cash scheme in Potter County have been dismissed on “speedy trial” grounds.
The case has been ongoing since May 2011, when charges were filed against Coudersport attorney Jarett Rand Smith, his former wife Donna Albright-Smith, his brother Jerome Smith and sister-in-law Eileen Rifka Smith, along with the child’s mother, Krista Eveland.
On Dec. 8, an order was filed in Potter County Court by Senior Judge Robert Sacavage dismissing the charges against all parties, saying the prosecution did not “act with due diligence” in bringing the case to trial within a one-year period from when the charges were filed.
The case originated with Coudersport-based state police, who had alleged Jarett Smith and Albright-Smith offered Eveland money in 2009 if she’d allow Jerome and Eileen Smith to adopt her baby, according to court records.
When the charges were filed, all three district judges in Potter County declined to hear the case. A preliminary hearing was set for Sept. 22, 2011, before Senior District Judge Richard Beck from Jefferson County.
Sacavage gave a recitation of the facts supporting his order. In the opinion, also filed in Potter County Court, the judge said an issue arose at the time of the Sept. 22, 2011, hearing regarding the prosecution’s intent to present evidence from a confidential file regarding the adoption. Defense counsel objected, and the Attorney General’s office “opted to move for a continuance in order to determine how to proceed.” Beck continued the case, setting a hearing for Nov. 21 and 22.
Sacavage noted that at the hearing, the prosecutor acknowledged the delay would count towards the accrual of time for the speedy trial rule. On Oct. 20, 2011, the prosecutor filed a motion asking the judge to order the adoption information disclosed. However, Sacavage noted, the motion was not filed in the Orphans Court with the adoption case, but with the criminal matter instead, the opinion reads.
On Oct. 27, 2011, Potter County Judge Stephen Minor was recused from the case and Sacavage was assigned.
On Nov. 20, 2011, Sacavage ordered the hearing be continued pending resolution of the motion for disclosure in the adoption case, according to court records. Argument was set for April 2, 2012.
Because one year had passed and the case had not yet gone to trial, motions to dismiss were filed on May 25, 2012, by Eveland; June 6, by Jerome and Eileen Smith; and on June 11 by Jarett Smith. On March 5, 2013, Sacavage granted those orders. On April 4, 2013, the Attorney General’s office filed an appeal of the dismissal.
On June 30, 2014, the state Superior Court remanded the case back to Potter County Court for an evidentiary hearing, which was held Sept. 12, 2014.
Sacavage said Rule 600 — the speedy trial rule — directs that if a judge “shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial.” However, if the judge should determine the prosecutors did not “exercise due diligence, the court shall dismiss the charges and discharge the defendant.”
Under Rule 600, certain delays do not count against the accrual of time in a criminal matter. In his opinion, Sacavage explained that time is when a defendant specifically waives his rights, or when a delay is attributable to “unavailability of a defendant or his/her counsel,” or when a defendant or his attorney requests a continuance in the case.
“No testimony was presented that would establish any excludable time,” Sacavage said. While the prosecution’s appeal had asserted that motions made by the defense were pending resolution, Sacavage said no evidence was presented that showed “the filing of any defense motions actually resulted in excludable time.”
Regarding the claim that delays in the case were beyond the control of the prosecution, Sacavage said, “the delays at various stages of this case remain unexplained.” He said the Potter County Court administrator testified at the hearing that there were delays in scheduling, but said no testimony was presented about the customary length of delays in scheduling. The Attorney General’s office did not establish “that these delays were beyond its control,” Sacavage said.
Regarding the issue of due diligence, Sacavage said the prosecutor must show “that it had some sort of record-keeping system that would track cases for purposes of Rule 600. Here, the Commonwealth failed to present any evidence of such a record-keeping system.”
Sacavage said it was true that he had not ruled on an outstanding motion by the Attorney General’s office in the case, but added “this alone cannot absolve the Commonwealth of the responsibility of listing the case for trial or at the very least taking other reasonable steps (perhaps in this case inquiring about a rescheduling of the preliminary hearing, for example) in bringing the case to trial.”
The judge ruled that “even if all periods of delay in these cases could be attributed to judicial delay ... the court finds that the Commonwealth has not acted with due diligence.”
As such, Sacavage said, the charges against the Smiths and Eveland must be dismissed.
Attempts to reach the supervising prosecutor, Senior Deputy Attorney General Anthony Foray, for comment late Friday were not successful.