Who's the Incompetent One Here?

By Colbert I. King
Saturday, September 30, 2006

Erika Smith was almost 3 years old when Anthony Kelly was sentenced on April 16, 1996, to 10 years and six months in prison for car theft and threatening to kill two people with a dangerous weapon. If Kelly had served his full term, would Erika be alive today?

Kelly, a cunning career criminal, made false representations to the Federal Bureau of Prisons and the U.S. Parole Commission -- representations that the agencies should have known were lies -- and got himself released on Dec. 12, 2001, more than five years before his sentence would have been completed.

His good fortune continued when he was placed in the custody of a Federal Bureau of Prisons halfway house called Hope Village in Southeast D.C. While he was there, Kelly violated several conditions of his release, which should have led to a return ticket to prison. Instead, after three months, he was released from federal custody into the D.C. community and placed under the supervision of the federal Court Services and Offender Supervision Agency, which is supposed to monitor convicts on parole. That was tantamount to giving Godzilla a license to run the streets.

Between his early release from prison in December 2001 and his capture on Sept. 5, 2002, authorities allege, Kelly raped two women, assaulted a police officer, carried out robberies with a dangerous and deadly weapon and committed three murders, including the execution-style killing of Erika Smith and her father, Gregory Russell, in their Silver Spring home on the evening of Tuesday, Aug. 6, 2002.

Kelly's most significant moment in the criminal justice system, however, might have occurred on May 27, 2004, in Montgomery County. That's when Circuit Court Judge Durke G. Thompson, despite strong opposition from the state's attorney's office, declared Kelly incompetent to stand trial.

As you read this, Anthony Kelly has a warm bed and is receiving three nutritious meals a day at the Clifton T. Perkins Hospital Center in Howard County.

The state's attorney's office did its best to bring Kelly before the bar of justice. In a suggested finding of fact submitted to Judge Thompson, a public record contained in the circuit court file, Deputy State's Attorney John J. McCarthy pointed out, among other things, that:

· The Perkins hospital psychiatrist who found Kelly incompetent to stand trial was not board-certified in forensic psychiatry, had had virtually no contact with any courts or criminal defendants and had never testified in court before joining the hospital's forensic fellowship program in July 2003. She was given Kelly's case three months after she joined the program, and his case was either the sixth or seventh forensic pretrial evaluation she had worked on.

· A physician with a state agency determined that Kelly was not mentally retarded; a neuropsychologist evaluated Kelly and administered a test that looked at Kelly's ability to comprehend legal concepts, assist in his own defense and understand case events, and found that Kelly scored in the normal range in every area. A psychologist performed a battery of standard tests, including one designed to assess a defendant's competence to stand trial, and found that Kelly's scores reflected an ability to reason and understand the criminal justice process.

· Kelly's stepsister testified that after he was released into the community, he moved in with his mother, brought a computer to the home and used it to make fraudulent W-2 forms and checks, and told his stepsister that he could make her a fake W-2 so that she could fraudulently obtain a tax refund. She said that Kelly "lies a lot," "constantly lies" and "lies about everything" and also has "lots of common sense" -- such as how to use a computer to make fraudulent documents. She also testified that Kelly bragged to her about being "back in the game," meaning criminal activity.

· Kelly's stepfather testified that Kelly faked employment in the stepfather's trash-hauling business as a pretext for getting released from Hope Village. The stepfather said he would pick Kelly up at the halfway house and then drop him off around the corner, where Kelly would have a car waiting for him. The stepfather also testified that Kelly used a computer to make a fraudulent loan application for his mother and stepfather and that Kelly had four cars, all of which had been stolen. The stepfather also noted that Kelly bragged about being "back in the game." He said he did not believe that Kelly was in any way delusional.

· A viewing of the videotape of Kelly's interview with an experienced homicide investigator showed Kelly to be coherent, responsive, cooperative and not under any particular stress, even joking with the police officers, expansively discussing topics such as ballistics and fingerprinting. But as the detectives continued to press him about the logical details of his story and called into question its truthfulness, Kelly halted the interview.

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