Judge: Third panel may be needed in Smith jury selection

ejohnson@bradenton.comAugust 1, 2012 

MANATEE -- A third panel of potential jurors may be needed to choose the 12 jurors and two alternates for the murder trial of Delmer Smith III, Judge Peter Dubensky said Tuesday.

Only 30 people are left in the first panel of 75 potential jurors interviewed Monday and Tuesday regarding their knowledge of the case and attitude toward the death penalty. After prelim

inary screening in the second group, 39 remain.

"We're going to be painstaking in picking a jury because we're committed to the idea of justice and we want to make sure there is a fair trial," said Dubensky, who had hoped to have a jury selected before Friday.

Assistant State Attorney Brian Iten, one of the prosecutors in the case, said he thinks there will be enough potential jurors. The defense did not seem so sure.

Once the jury pool is narrowed down, the state and the defense will each strike 10 potential jurors. The panelists and alternates will be chosen from those remaining.

Individuals are being questioned about their familiarity with the case and those involved, as well as their attitude toward the death penalty.

If convicted of the Aug. 3, 2009 murder of Kathleen Briles, who Smith allegedly bludgeoned to death with an antique sewing machine in her Terra Ceia home, Smith could be sentenced to death or life in prison without parole.

Iten and Bjorn Brunvard, a defense attorney, questioned the first panel of jurors Tuesday morning about their ability to be a fair juror in regard to a death sentence.

Smith, 41, sat in courtroom 5-A at the Manatee Judicial Center, wearing black dress pants and a forest green button-up shirt.

He occasionally spoke to his attorneys and listened through headphones when Dubensky called a private meeting at the bench. Smith sat reclined in his chair for much of the proceedings, occasionally yawning during the earlier sessions.

Several potential jurors were dismissed for absolutely opposing or supporting the death penalty.

Most said they would be able to weigh aggravating and mitigating factors to reach a fair decision.

Others were dismissed after discussion led to other factors which might alter their decisions. One woman said she has two family members who were murdered. Another woman said she was told more details of the case by an acquaintance Monday night and was unsure if that would affect her thoughts on the case.

After questioning the first group Tuesday took almost an hour, Dubensky reminded attorneys to be brief.

"The purpose is not for you to make speeches. It's to get information from the jurors," Dubensky said.

Iten asked potential jurors their opinion of the death penalty and if they understood the difference between premeditated murder -- in which a person is killed with prior intent -- and felony murder, in which a person is killed during the commission of another felony. The state could choose one of those two "paths" to pursue a first-degree murder conviction, Dubensky said.

Brunvard reminded potential jurors that the discussion of the death penalty does not negate the presumption of Smith's innocence.

"Have you ever heard a man is presumed innocent until proven guilty?" Dubensky asked several potential jurors. "Well, in the courtroom is where that phrase comes alive."

Once a jury is selected and the trial commences, all 12 jurors must agree unanimously on Smith's innocence or guilt of first-degree murder or lesser crime.

If the jury convicts Smith of first-degree murder, at least seven jurors must recommend the death penalty for Smith to be sent to Death Row.

If six or fewer jurors recommend the death penalty, a convicted Smith would get life in prison without parole. The judge could overrule the jury if he sees fit.

Elizabeth Johnson, Herald crime reporter, can be reached at 941-745-7041. Follow her on Twitter @EJohnsonBHcrime.

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