Kathleen Briles' murderer trying to avoid death row

Herald Staff writersApril 19, 2013 

Delmer Smith is led into a Sarasota courtroom for a hearing regarding testimony and evidence for his upcoming trial for a home invasion armed with a deadly weapon at the residence of a Sarasota woman. Smith is charged with the murder of Manatee County's Kathleen Briles, and is offering an incompetency defense, which will be heard Friday. Bradenton Herald file photo

TIFFANY TOMPKINS-CONDIE

BRADENTON -- Convicted killer Delmer Smith will be back in a Manatee County courtroom Friday trying to evade a death sentence for murdering Kathleen Briles in 2009.

His defense is expected to present medical evidence at the 8:30 a.m. hearing of damage to the frontal lobe of the brain, which they hope persuade Judge Peter Dubensky to reduce his sentence to life in prison.

Smith's hearing is designed to allow the defense to present mitigating evidence in hopes of avoiding Death Row for killing the Manatee County woman. It comes roughly nine months after Smith, 41, was convicted of first-degree murder in the Briles' case and a jury recommended the death penalty.

Briles was bludgeoned to death Aug. 3, 2009.

The defense claims it can prove there is something physically wrong with Smith's brain, which made him unable to control his behavior when he killed Briles, so he should not be put to death.

The defense convinced Dubensky in September 2012 to grant an eight-month delay so expert Dr. Ruben Gur of Pennsylvania could testify regarding Smith's brain scans and other brain tests.

"My understanding from the evidence that Dr. Gur is going to testify about is that it is going to show damage to the frontal lobe of the brain and elsewhere," said Smith's attorney, Bjorn Brunvand.

Gur is scheduled to testify Friday on findings from the PET and MRI scans performed on Smith. (Positron Emission Tomography is medical imaging technology of abnormal cellular activity that helps doctors identify several forms of cancer, damaged heart tissue and brain disorders such as Alzheimer's).

These tests were not done during the trial because Smith refused to take them.

"We encouraged him that we should do the testing," Brunvand said. "I'm glad he did. I want the judge to have as much information (as possible) before he makes a decision."

Additional brain tests were requested but denied.

The defense tactic comes as no surprise to the prosecution.

"It's an opportunity by the defense to present additional mitigating evidence related to sentencing," state prosecutor Brian Iten said Thursday. "I anticipate the defense will argue that the defendant has some mental disease or defect."

Kathleen Briles' husband, Dr. James Briles, plans to be in the audience not far from the defendant in courtroom 5A of the Manatee County Judicial Center along with many other family members.

Briles said he still feels confident Smith will be put to death for the murder of his wife.

"I don't think this will change the outcome," Briles said Thursday. "I believe the judge's sentence will come down in support of the jury's findings and recommendations."

As a physician himself, Briles said he understands Gur will try to convince the judge of the need for leniency because his brain damage did not allow him to control his behavior.

"Human behavior is a complex thing that, I believe, can't be predicted to any accuracy by scans and tests," Briles said. "I have patients who have abnormal scans but they are not murderous. I believe he put himself in this position voluntarily. He acted knowing what he did was wrong. He took every effort to cover his steps. None of that other stuff really matters. He chose to be there. He did what he did."

An e-mail to Dr. Helen Mayberg of Emory University, the state expert witness on the brain expected to try to refute Gur's testimony, was not immediately answered.

Regardless of the hearing outcome, Smith will likely never be a free man. He is serving a life-term prison sentence for a violent kidnapping and home invasion robbery in Sarasota.

For the Briles family, this case has been a long road of twists and turns.It's hard not to be frustrated by the long wait for sentencing, Briles said.

"We are approaching four years since Kathleen was murdered," Briles said. "Part of the delay needs to be placed on the shoulders of the defendant. He is the one who initially denied this (brain) evaluation."

Another possible delay may be addressed Friday by Dubensky as Smith has expressed discontent with his defense team, prompting a hearing to determine if the appointed attorney is providing effective counsel.

At a Feb. 26 hearing challenging his own counsel, Dubensky retained the defense team but ordered Brunvand to take the lead in ensuing hearings, stating the defendant "expressed a willingness to continue with Bjorn Brunvand as his attorney" according to court documents.

Court records show Smith has once again expressed dissatisfaction with his attorneys in a letter to the judge dated March 27.

"My two attorney's (sic) have abandoned me and that leaves me without no representation and the issues at hand don't get brought to the court's attention," Smith wrote. "Your honor there are some very important issues that needs to be looked at by the court, my life depends on it."

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