WASHINGTON – A federal appeals court Thursday upheld the death sentences against Joseph Clarence Smith for the 1976 murders of two teenage girls while he was on probation for a previous rape.
A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected seven challenges from Smith, including a claim that autopsy evidence showing his “exceptional violence” violated his right to confront his accuser.
It marks the third time the 9th Circuit has ruled on Smith’s case – but likely not the last. An attorney with the federal public defender’s office in Arizona said Thursday that the office already plans to ask for a review by the full appellate court.
Smith was on parole for the 1973 rape of Alice Archibeque in 1976 when he murdered Sandy Spencer and Neva Lee and raped Dorothy Fortner in three separate incidents, according to court documents.
Fortner was four or five months pregnant when Smith told her he knew her boyfriend and convinced her take a ride from him. He drove her into the desert where he threatened her with a knife and raped her repeatedly before ultimately letting her go.
Fortner would later testify against Smith during his sentencing in the murders of Spencer and Lee. He had picked them up in separate incidents and drove into the desert where each was tied up and stabbed multiple times by Smith, who killed them by stuffing dirt into their mouths and nostrils and taping them shut.
Their nude, mutilated bodies were found in the desert outside Phoenix within a month of each other in early 1976. He was convicted of both murders in 1977 and sentenced to death for each.
In one of his appeals, Smith raised a diagnosis of “sexual sadism” as a defense against the imposition of the death penalty – opening the door for prosecutors to introduce autopsy reports and other evidence of Smith’s many previous crimes.
In his opinion for the appeals court, Judge Richard Paez said there is “little doubt that the prosecution’s powerful rebuttal evidence was prejudicial to Smith.” But he said prosecutors were still well within their rights to present it.
“Witness after witness testified in detail about the psychological and physical violence that Smith inflicted on his victims, painting a picture of exceptional violence,” Paez wrote.
“Nonetheless, in light of Smith’s reliance, minimal as it may have been, on his sexual sadism diagnosis … it was reasonable for the Arizona Supreme Court to conclude that the evidence fell within the boundaries of due process,” the opinion said.
The court rejected Smith’s other claims, including a claim of ineffective assistance of counsel, noting that the “evidence in both the Spencer and Lee sentencing hearings was extensive.”
The panel also rejected Smith’s claim that executing him now, after he has spent 35 years on Arizona’s death row, would be cruel and unusual punishment.
“Joe Smith has been on death row for 40 years, he is one of the longest death row inmates in the U.S.,” said Dale Baich, an assistant public defender with the Arizona Federal Public Defender’s Office. “He’s in a single cell for 23 hours a day.”
The Arizona Attorney General’s office did not return a call Thursday asking for comment on the ruling.