By NANCY WEST, InDepthNH.org
CONCORD – The state won’t review Pam Smart’s murder conviction as suggested by her attorney after new information came to light last week about Paul Maggiotto, the now-Concord attorney who prosecuted her in 1991, according to Deputy Attorney General Jane Young.
Last Friday, the 1989 murder conviction of Gerard Domond was vacated after Brooklyn, N.Y. District Attorney Eric Gonzalez determined Domond didn’t get a fair trial because Maggiotto withheld key evidence that the sole eyewitness suffered from serious mental health issues.
Maggiotto denies withholding any evidence in the case, and said the decision to vacate Domond’s conviction doesn’t mean he’s innocent.
Young said her office has reviewed the report of Gonzalez’s Conviction Review Unit regarding Domond’s conviction by Maggiotto in Brooklyn before moving to New Hampshire.
“Over the years, Pam Smart has presented numerous challenges to her conviction. The most recent challenge was a request for commutation presented to Governor and Council in 2019.
“The commutation request required this Office to perform an exhaustive review of the proceedings leading to her conviction. The actions by the prosecutor described in the Domond report do not impact the validity of Pam Smart’s conviction,” Young said in an email.
Young didn’t immediately respond when asked if the other cases Maggiotto prosecuted while working in the Attorney General’s Office that possibly haven’t been as thorough examined as Smart’s case would be reviewed.
Smart’s lawyer, Mark Sisti, said he was disappointed by the Attorney General’s Office decision. He was in contact with Domond’s New York attorney Ron Kuby, who doesn’t represent Smart, but corresponds with her. Kuby was planning on filing an official request with the Brooklyn DA’s office seeking review of all of the cases Maggiotto prosecuted there, Sisti said.
“I’m not worried,” Maggiotto said when reached by phone Friday. “I know what I did as a prosecutor was correct.”
He said he was unaware of any evidence indicating the eyewitness, who was called FP in the Conviction Review Unit’s report, suffered from mental illness outside of a transportation order.
The only evidence indicating any mental health issues on the part of FP, who has since died, was the transport order to bring him to court for trial from a ward of the Kings County Hospital, Maggiotto said. The Brooklyn DAs investigation said it was a psychiatric unit.
“I have no recollection as to why the transport order said that. I do know he was being treated for AIDS,” Maggiotto said.
Perhaps FP was trying to cover up the fact that he had AIDS or maybe he was in the psychiatric ward because he was depressed because he had AIDS, Maggiotto said.
“What I do know is there was no long history of mental illness…,” Maggiotto said. “To suggest otherwise is simply wrong.”
Maggiotto said he understood why Gonzalez took the action he did to vacate Domond’s conviction. Domond was incarcerated for 29 years before being paroled in 2016.
“It’s a lot different than saying someone was convicted who was innocent,” Maggiotto said.
He had an eyewitness, FP, who testified the killer was Domond and a “defendant who lied on the stand,” Maggiotto said.
The jury didn’t believe Domond’s claim that he was down south at a religious retreat at the time of the murder. Domond’s probation/parole officer testified that Domond checked in with him on the day that he said he was still on his way back to New York, Maggiotto said.
“That blew a hole through his alibi,” Maggiotto said. “Nobody likes to be accused of anything inappropriate, but I know the facts.”
The Conviction Review Unit determined Domond didn’t get a fair trial with FP’s uncorroborated testimony being the sole evidence against Domond.
“Yet, the prosecution failed to disclose information that FP was hospitalized at the (Kings County Hospital) psychiatric unit at the time of the signing of the cooperation agreement, or at the very least two weeks before the defendant’s trial and in all probability much longer. The prosecution misled the jury through his opening remarks regarding the reason for FP’s hospitalization thus depriving the jury of its function of determining the credibility and reliability of the prosecution’s single witness—the only witness wholly dispositive of the jury’s determination of guilt,” the investigation said.
“Since FP is deceased and his records long destroyed, there is no way to correct the error, or determine the extent of the error, to ensure a fair retrial. Accordingly, CRU recommends that the defendant’s judgment of conviction be vacated, and the indictment be dismissed,” the investigation concluded.
Smart’s mother, Linda Wojas, questioned Deputy Attorney General Young’s response.
“How can she say it was thoroughly reviewed when they didn’t even give Pame a hearing? And that was before this new revelation outlining Maggiotto’s egregious conduct,” Wojas said. “I would hope the attorney general would want to show the people of New Hampshire their integrity and transparency by investigating all of Maggiotto’s New Hampshire cases.”
The Executive Council has refused Smart’s requests for a commutation hearing. Smart, who has continued to profess her innocence, was convicted of being an accomplice to the May 1, 1990 murder of her husband, Gregory Smart, in their Derry condominium. Her former teen lover, Billy Flynn, who carried out the murder with help from friends, reached a plea deal with Maggiotto.
Flynn testified against Smart saying she made him do it. Flynn and his friends have all been released on parole.
Saying he was still in shock over Maggiotto’s handling of the Domond case, Sisti agreed with Wojas on Friday.
“That review had nothing to do with the integrity of the lead prosecutor…it merely reviewed the end product of that prosecutors work not the means in which he got it… its like saying….the defendant confessed to the crime without determining whether the confession was properly obtained.
“It’s curious that Brooklyn, N.Y. has more of an interest in making sure that the prosecutions were done properly than the Attorney General’s Office in the state of New Hampshire,” Sisti said. “I would have hoped they would be responsible and take a look at the case through a different lens.”
The state should look at it through “the eyes and the lens of a prosecutor that we already know has been found to have been, let’s say misbehaving on a murder case, at least one murder case in Brooklyn, N.Y., shortly before the Smart case.
“I would think it would be foolish on the part of the New Hampshire Attorney General to turn a blind eye to this. It’s an important issue,” Sisti said.