Metropolitan News-Enterprise


Friday, March 11, 2005


Page 1


Death Sentence for Teacher’s Aid Upheld in Killing of Valley Child

Justices Unanimously Rule That Psychological Testimony May Be Used to Prove Aggravating Circumstances


By KENNETH OFGANG, Staff Writer/Appellate Courts


Prosecutors may call a mental health expert to the stand in the penalty phase of a capital case to establish the existence of aggravating circumstances, the California Supreme Court unanimously ruled yesterday.

The justices affirmed the conviction and death sentence of Gregory Scott Smith, a former teacherís aid at Darby Elementary School in Chatsworth. Witnesses testified that Smith, who was fired for inappropriate physical roughness with children,  blamed 8-year-old Paul Bailly—who complained to a school official after Smith twice tied him up with jump ropes—and vowed revenge.

The youngsterís body was found at the scene of a fire near Simi Valley less than six hours after his mother dropped him off for school on March 23, 1990. An investigator opined that someone had poured an accelerant on the body and set it afire, and the medical examiner said the boy had been forcibly sodomized, then strangled before the body was set afire.

Smith, who lived in Canoga Park, expressed remorse for the killing and pled guilty to first degree murder, kidnapping, arson, child molestation, and forcible sodomy, but argued against the death penalty.

He tearfully told then-Ventura Superior Court Judge  Steven Z. Perren, now  a justice of this districtís Court of Appeal, he was sorry for the boy’s death and would give his own life if it would bring Paul back.

‘Off the Scale’

Prosecutors, including current Ventura District Attorney Greg Totten, argued for the death penalty, calling the crime “off the scale of heinousness.” Jurors agreed, and Perren—citing the devastating effect of the crime on the victimís mother—said that anything less than a death sentence would suggest that the life of the victim was worth less than that of the defendant.

The prosecution had, over defense objection, presented the testimony of Dr. Chris Hatcher, a clinical psychologist who has studied violent sexual assaults upon children, as part of its case in aggravation.

Hatcher testified that the killing of Paul Bailly was one of a number in which child victims had been abducted, bound and sexually assaulted. Those who commit such crimes, Hatcher said, are typically carrying out a sexual fantasy that includes sodomizing and strangling the victims and mutilating the bodies.

Sadistic pedophiles are distinguishable from others who molest children, the psychologist explained, because they are sexually aroused by the “suffering and discomfort of the child,” rather than being satisfied with mere sexual contact.

Smith appeared to fit that model, Hatcher said. Among the evidence he cited were two articles seized from his residence by police, one dealing with the MacMartin child molestation case and the other with the case of Charles Rothenberg, convicted of setting his sonís hotel room on fire.

Low IQ

The defense responded that Smith was not a sadist, but rather a person of limited intelligence lacking in impulse control. His counsel cited tests showing he had an IQ under 90, and explained that when he was in his mid-teens, his parents hired an educational therapist to help deal with his learning disabilities.

The therapist testified that he had been eager and friendly, but that he had the intellectual capacity of an 8-year-old. His mother and sisters also testified, saying he was mentally retarded.

On appeal, the defense argued that Perren should not have allowed the use of mental health testimony as part of a case in aggravation. But Justice Joyce L. Kennard, writing for the Supreme Court, said that Hatcherís testimony fit under the broad rule allowing admission of evidence describing the circumstances of the crime.

“Evidence of the circumstances of the crime is admissible as aggravating evidence in the prosecutionís case-in-chief,” the justice explained, even though that evidence would have been inadmissible as prosecution evidence if offered only to show that the defendant was deeply mentally disturbed or of bad character—since mental disturbance and character can only be mitigating factors.

Kennard distinguished People v. Coleman (1989) 48 Cal.3d 112, in which the court said that a prosecution psychologist should not have been allowed to testify that the defendant had a passive-aggressive, antisocial personality and was criminally oriented, immature, and defensive.

The difference between the two cases, the justice explained, is that the psychological testimony in Coleman was offered to show that the defendant was likely to engage in criminal violence in the future, not to explain the circumstances of the crime.

The case was argued in the high court by Deputy State Public Defender William Hassler for the defendant and Deputy Attorney General Susan Sullivan Pithey for the prosecution.

The case is People v. Smith, 05 S.O.S. 1195.


Copyright 2005, Metropolitan News Company