Bacon's Rebellion

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Another Murderer Released On Parole!

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by

Dick Hall-Sizemore
in ,

Elbert Smith, second from right, and family.

by Dick Hall-Sizemore

The Parole Board just released a convicted murderer. Yes, this Parole Board. The one that Glenn Youngkin appointed to crack down on the release of all those violent criminals. And not a peep out of Kerry Dougherty or Hans Bader, who ordinarily go on a rant when a convicted murderer is released on parole.

The circumstances surrounding this offender, Elbert Smith, certainly justified his release on parole. He did not fire the fatal shots that resulted in a man’s death. The man who did fire the shots accepted a plea deal — voluntary manslaughter and a sentence of five years. Smith, acting on the advice of his court-appointed attorney, refused the deal. A jury convicted him of second- degree murder and imposed a sentence of 44 years. Convicted in 1996, he had served 27 years in prison. During that time, he had had only one serious infraction. During the last ten years, his record had been clean. The warden in the prison in which he was being held did not recognize his name when asked about him.

Although parole was abolished for any crime committed after Jan. 1, 1995, the Virginia Supreme Court later ruled that offenders whose juries had not been informed that parole was not a possibility for a defendant if found guilty were entitled to a new trial. The General Assembly subsequently adopted legislation providing that offenders who met the Fishback criteria would be eligible for parole. Smith met those criteria. (See Fishback v. Commonwealth and Sec. 53.1-165.1)

There are likely other offenders incarcerated whose circumstances are similar to Elbert Smith’s, but who have not been granted parole. However, Smith had a few things going for him that other offenders do not have.

First, he had a well-known lawyer representing him pro bono, who was willing to dig into the case and put some time into it. That lawyer was none other than Jerry Kilgore. Yes, that Jerry Kilgore. The one who was Secretary of Public Safety under Republican Gov. George “No Parole” Allen and later was Attorney General and a candidate for governor.

Second, he has a son who is a player in the NBA. Dorian Finney-Smith was a basketball star at I.C. Norcom High School in Portsmouth and went on to the pros after playing for Virginia Tech and the University of Florida. When Elbert Smith became eligible for parole, his son was playing for the Dallas Mavericks (he has subsequently been traded to the Nets.) The chief of staff for the Mavericks’ owner, Mark Cuban, was also a graduate of the University of Florida and became interested in Smith-Finney’s situation. He dug into the case and recruited Kilgore to take it on. Cuban and other NBA heavyweights wrote lots of letters in support of Smith’s release on parole.

The final advantage that Elbert Smith had was a stable environment awaiting him upon release. With a millionaire son, he would not have to worry about where he was going to live or how he was going to afford food.

Elbert Smith was granted parole in July of this year. After completing a required pre-release program, on Tuesday of this week, he walked out of prison and was greeted by his son and family.

 A tip of the hat to Dwight Yancey of Cardinal News who has set this story out in more detail.

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42 responses to “Another Murderer Released On Parole!”

  1. walter smith Avatar
    walter smith

    I don’t get the shot at Kerry and Hans.
    There are some cases where parole may not be crazy. This sounds like one. Or do you prefer that no one gets a second chance? (Wait…isn’t that Leftism today – the religion with no forgiveness?)

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      My point is that many people complaining about violent offenders being released on parole do not know, or try to find out, the circumstances of the crime. They only look at what a person was convicted of.

    2. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      My point is that many people complaining about violent offenders being released on parole do not know, or try to find out, the circumstances of the crime. They only look at what a person was convicted of.

      1. WayneS Avatar
        WayneS

        Maybe Kerry and Hans looked at the circumstances of this one and decided it was a legitimate case for parole.

      2. Nathan Avatar
        Nathan

        “My point is that many people complaining about violent offenders being released on parole do not know, or try to find out, the circumstances of the crime.”

        We would like to know, and it would be helpful if the information was easier for the public to access.

        Speaking of getting the facts, your article leaves out some important information.

        1. At the time of the crime for which he received the conviction resulting in the long sentence, Elbert Smith was already of convicted felon. (He was convinced of selling cocaine prior to this incident.)

        2. At the time of the incident, Elbert Smith was a convicted felon who was illegally in possession of a handgun during the commission of another felony.

        https://scholar.lib.vt.edu/VA-news/VA-Pilot/issues/1995/vp950314/03140395.htm

        3. Elbert Smith may not have fired the fatal shots, but he did stab the victim who was struggling to take a gun from his partner. Upon being stabbed, the victim released the gun and was then shot.

        4. Elbert Smith was offered the same deal his partner took – manslaughter instead of second degree murder.

        5. I have not been able to document that Elbert Smith refused the plea deal on advise of counsel. Conversations between attorneys and their clients are confidential.

        6. Whether on advise of counsel, or against the advice of counsel, Elbert Smith received the 44 year sentence because he turned down the offer. That was the primary factor in this apparent miscarriage of justice.

        1. Marty Chapman Avatar
          Marty Chapman

          Mr. Hall-Sizemore, would you care to respond? You seem a bit careless and selective with your facts, Sir!

  2. Ronnie Chappell Avatar
    Ronnie Chappell

    Given the changes in practice and membership at the Parole Board, it shouldn’t be surprising that people have greater confidence in the wisdom of this decision, in this case. That said, Dick, was the family of the person killed during commission of the crime Smith was convicted for advised of his potential parole and given the opportunity to participate in the hearing?

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I don’t know. The policy and practice for the Parole Board for many years has been for at least one member of the Parole Board to meet with victims or their families, if requested, to hear their concerns.

  3. LarrytheG Avatar
    LarrytheG

    re: ” He did not fire the fatal shots that resulted in a man’s death. The man who did fire the shots accepted a plea deal—voluntary manslaughter and a sentence of five years. Smith, acting on the advice of his court-appointed attorney, refused the deal. A jury convicted him of second degree murder and imposed a sentence of 44 years. Convicted in 1996, he had served 27 years in prison. ”

    This is an aspect of our criminal justice system that should be
    just as concerning as letting out true killers.

    If I heard the critics be just as concerned about both of these instead of just one side, I’d consider their views worthy of more attention.

    1. DJRippert Avatar
      DJRippert

      Good point, Larry. I seem to recall something called the “triggerman rule” in Virginia which held that nobody associated with a murder could get a more severe sentence than the person who actually pulled the trigger (i.e., committed the murder).

      Not sure how that was applied in this case.

      The American justice system has become about as corrupt as it gets. From the OJ Simpson trial to some jack-wagon judge in Colorado taking Trump off the ballot for a “crime” he has not been charged with, let alone convicted of.

      Meanwhile, a jury awarded two election workers $36m each for defamation and emotional distress over some comments made by Rudy Guilliani. That doesn’t include $75M in punitive damages. Really? I hope Elon Musk says something untrue and mean about me.

      The American justice system has become a circus run by politicized clowns.

      1. WayneS Avatar
        WayneS

        Except for aggravated murder, Virginia’s “triggerman rule” regarding felonies allows principals in the second degree to be “indicted, tried, convicted and punished in all respects as if a principal in the first degree”.

        Any punishment applied is apparently not related to the punishment received by any principal(s) of the first degree to the same crime.

        https://law.lis.virginia.gov/vacode/18.2-18/

        PS – This does not mean I think it is fair for the actual murderer to get 5 years in prison while his “non-triggerman” accomplice gets sentenced to 44. But that is the way it goes sometimes when one gambles on a jury trial.

      2. LarrytheG Avatar
        LarrytheG

        I agree with you about Colorado. In terms of people telling lies about poll workers and a bunch of people calling and threatening them, I say burn their butts to a crisp including the guy behind it.

        The one thing Trump has taught us is that if you have the money, you CAN do a lot more with the criminal justice system than ordinary schmucks.

        I bet, for instance, had Smith had TRumps money, he may not have gone to prison at all or if he did not near as long.

        1. WayneS Avatar
          WayneS

          had Smith had TRumps money, he may not have gone to prison at all or if he did not near as long.

          If Mr. Smith had Trump’s money, he would not have been working as a “collector” for a loan shark in the first place.

          This guy was not some babe in the woods. He committed serious crimes and he deserved to be punished. In this case, his punishment seems to have been a bit excessive for his crime, but he was far from innocent.

          1. LarrytheG Avatar
            LarrytheG

            I agree, not innocent and Mark Cuban got him out? If he had a lawyer of the caliber that Trump can afford, the case would have gone on forever and ultimately a much lower sentence, IMO.

      3. Nathan Avatar
        Nathan

        I’ve read numerous accounts and have provided some additional information in a reply to Mr. Hall-Sizemore.

        I can also speculate about the short sentence for the shooter, and the long sentence for Mr. Smith.

        News accounts say that both were offered the same plea deal. I would guess that Mr. Smith might have been offered the deal first if he would plead guilty and testify against his partner.

        Mr. Smith turned down the deal, possibly because the evidence against them (at that point) was circumstantial?

        But his partner took the deal, and most likely cooperated with the prosecutors and testified against Mr. Smith.

        At this point, the plea deal may have been off the table for Mr. Smith and the outcome was that he was guilty of the higher charge. Sentencing likely took into account the fact that Mr. Smith had a previous felony.

        https://scholar.lib.vt.edu/VA-news/VA-Pilot/issues/1995/vp950314/03140395.htm

        44 years still seems excessive, but I’m not familiar with sentencing guidelines.

        Nonetheless, the decision to go to trial rather than take the offer turn out to be a very bad one.

        Not mentioned in the article by Mr. Hall-Sizemore is the previous felony and the fact that Mr. Smith did attack the victim with a knife.

        https://nypost.com/2023/12/20/sports/nets-dorian-finney-smith-gets-reunion-after-dads-28-year-incarceration/

        1. LarrytheG Avatar
          LarrytheG

          from the Post:

          ” Both Smith and McGann had a handgun, and Anderson attempted to reach McGann’s gun during a skirmish. Smith told police that he lunged at Anderson with a knife, causing Anderson to then release McGann’s gun.

          But McGann shot Anderson, who died from his injuries.

          Both Smith and McGann were tried for first-degree murder. McGann accepted a plea deal for voluntary manslaughter and received a five-year prison sentence.

          Smith, however, rejected the same plea deal because McGann was the one who fired the shots. Smith was then convicted by a jury for second-degree murder and sentenced to 44 years in prison.”

          not innocent but did he “lunge” or “stab”?

          was it 2nd degree murder or attempted murder?

          If he had a highly paid lawyer, chances are those details would have been more thoroughly addressed and a more fair sentence imposed. IMO

    2. Nancy Naive Avatar
      Nancy Naive

      Don’t forget, Larry, you’re talking to people who believe that compensating the wrongly convicted is being soft on crime.

      https://www.wtkr.com/investigations/virginias-compensation-for-the-wrongfully-incarcerated-falls-behind-national-average#:~:text=Sullivan%20said%20he%20made%20concessions,increase%20per%20year%20of%20incarceration.

    3. Nancy Naive Avatar
      Nancy Naive

      Don’t forget, Larry, you’re talking to people who believe that compensating the wrongly convicted is being soft on crime.

      https://www.wtkr.com/investigations/virginias-compensation-for-the-wrongfully-incarcerated-falls-behind-national-average#:~:text=Sullivan%20said%20he%20made%20concessions,increase%20per%20year%20of%20incarceration.

      1. WayneS Avatar
        WayneS

        How about starting with $125,000* per year, or portion of a year, the wrongly convicted person was in prison? Tax free, of course.

        *Amount to be adjusted annually based on CPI.

        1. LarrytheG Avatar
          LarrytheG

          How about a fully-funded “Innocence” function as part
          of our criminal justice system?

          IOW, every jail sentence is audited by a team of independent investigators to determine if there were questionable aspects – like the kind of things the current unfunded innocence does find but lacks sufficient resources to investigate all such cases and focuses only on the most obvious?

          1. WayneS Avatar
            WayneS

            IOW, every jail sentence is audited by a team of independent investigators to determine if there were questionable aspects…

            Every jail sentence? No. Too expensive, and ostensibly unnecessary.

            The judge and jury are presumed to be independent, and presumably, if a case has been fairly adjudicated, the judge/jury will reach a decision and impose a just sentence. It’s the system we have and it works most of the time. Reviewing every single sentence passed by juries and judges after the fact would mean abandoning some of our country’s founding principles. Besides, we already have established appeals processes.

            In reality, of course, judges and juries make mistakes, including when hearing appeals, which is why we are thankful for people like the Innocence Project who take up cases where it appears an injustice may have been done.

            You do know that the Innocence Project does not take up every case that’s presented to them don’t you? And it’s not just because they can’t afford it. They may occupy the liberal/progressive end of the spectrum but most of them recognize that the overwhelming majority of people in prison belong there.

          2. LarrytheG Avatar
            LarrytheG

            I’m not in major disagreement with your view but it looks to me that the Innocence folks don’t get around to looking into some cases until the guy has spent a decade or longer in prison and in some of the cases, the flaws seem to be egregious and readily overturned. I’l like to see a
            process that gets a guy out of prison sooner than a decade or longer. You can give them a
            100K or more but there are some things you can’t give back to them after that long of time.

        2. Nancy Naive Avatar
          Nancy Naive

          We cannot pay enough, and whatever the codified amount, it is a minimum without estoppage

          1. WayneS Avatar
            WayneS

            We cannot pay enough…

            True enough, but we need to make an effort, and we can’t afford to hand each of them a billion dollars.

            $125,000 a year is not a bad living these days – and for most of them, likely a lot more than they would have been making if they had not been in prison.

            And, of course, in the particular case under discussion, the guy was not wrongly convicted so he is not owed anything.

          2. WayneS Avatar
            WayneS

            We cannot pay enough…

            True enough, but we need to make an effort, and we can’t afford to hand each of them a billion dollars.

            $125,000 a year is not a bad living these days – and for most of them, likely a lot more than they would have been making if they had not been in prison.

            And, of course, in the particular case under discussion, the guy was not wrongly convicted so he is not owed anything.

          3. Nancy Naive Avatar
            Nancy Naive

            https://dpic-cdn.org/production/images/People-affected-by-type.png

          4. WayneS Avatar
            WayneS

            You already know I am a sworn enemy of prosecutorial misconduct. In fact, I ‘m probably one of just a few people who post here who has actually done something about it (see Commonwealth’s Attorney Gary Close circa 2010).

            I agree that claims of misconduct need to be quickly investigated and more credence given to claims of ‘actual innocence’ once police or prosecutor misconduct is discovered.

            I strongly disagree with SCOTUS’s 2009 ruling that convicted persons do not have a constitutional due process right to bring DNA-based post-conviction “actual innocence” claims. Efficacy and accuracy of DNA testing has improved greatly even since 2009, so I think it’s time to revisit that decision. If the DNA evidence says you are not the guy then it is a virtual certainty that you are not the guy. And a previous guilty verdict by a judge or jury which did not have access to that evidence should not be able to stand in the way of acting on the new DNA-based evidence.

            I also think we need a better way of fixing honest mistakes by our judicial system. But I think the arrogance and inflated egos of some judges and prosecutors makes that difficult. If they got it wrong, they should admit they got it wrong and do what is necessary to make it right. And our legal system should not stand in the way of an honest judge or prosecutor doing so.

          5. LarrytheG Avatar
            LarrytheG

            whoa!

          6. WayneS Avatar
            WayneS

            You already know I am a sworn enemy of prosecutorial misconduct. In fact, I ‘m probably one of just a few people who post here who has actually done something about it (see Commonwealth’s Attorney Gary Close circa 2010).

            I agree that claims of misconduct need to be quickly investigated and more credence given to claims of ‘actual innocence’ once police or prosecutor misconduct is discovered.

            I strongly disagree with SCOTUS’s 2009 ruling that convicted persons do not have a constitutional due process right to bring DNA-based post-conviction “actual innocence” claims. Efficacy and accuracy of DNA testing has improved greatly even since 2009, so I think it’s time to revisit that decision. If the DNA evidence says you are not the guy then it is a virtual certainty that you are not the guy. And a previous guilty verdict by a judge or jury which did not have access to that evidence should not be able to stand in the way of acting on the new DNA-based evidence.

            I also think we need a better way of fixing honest mistakes by our judicial system. But I think the arrogance and inflated egos of some judges and prosecutors makes that difficult. If they got it wrong, they should admit they got it wrong and do what is necessary to make it right. And our legal system should not stand in the way of an honest judge or prosecutor doing so.

          7. LarrytheG Avatar
            LarrytheG

            Totally agree. It’s bad enough when there is a problem. It’s much, much worse if it takes years or decades to find it out.

            There is no way to set something like that completely “right”.

            We cannot have a criminal justice system that wrongly puts people in prison – for years or decades.

            Wrong things should be found and fixed in a timely manner.

          8. Nancy Naive Avatar
            Nancy Naive

            It’s rare. It usually takes an incoming prosecutor to “do the right thing”.

          9. Nancy Naive Avatar
            Nancy Naive

            Glynn Simmons — Google him.

          10. WayneS Avatar
            WayneS

            That guy should not be having to set up a gofundme page to cover his health care expenses.

            Under my plan noted above, the state of Oklahoma would be cutting him a check for at least $6.25 Million.

            And, if the prosecutor in his case is still alive, he/she should have to serve out the remainder of the sentence he was wrongly given.

          11. WayneS Avatar
            WayneS

            That guy should not be having to set up a gofundme page to cover his health care expenses.

            Under my plan noted above, the state of Oklahoma would be cutting him a check for at least $6.125 Million.

            And, if the prosecutor in his case is still alive, he/she should have to serve out the remainder of the sentence he was wrongly given.

          12. Nancy Naive Avatar
            Nancy Naive

            Only one problem— Oklahoma.

          13. Nathan Avatar
            Nathan

            From what I have read, some attorneys exhaust all appeal possibilities without the evidence needed to overturn. The result may be that once conclusive evidence is available, they have already used up their right to appeal.

            I do believe in the pardon process for these cases. But once again, it’s helpful if the process isn’t clogged with everyone who just wants to get out. It makes the most worthy candidates that much harder to find.

          14. how_it_works Avatar
            how_it_works

            This Forensic Files episode was quite interesting to me–seems like a case of prosecutorial misconduct, or at the very least a huge conflict of interest with their expert witness. Happened in Georgia.

            https://www.youtube.com/watch?v=hmDTGg5Qfbo&ab_channel=FilmRiseTrueCrime

          15. Nancy Naive Avatar
            Nancy Naive

            I’d be willing to bet that the majority of the wrongly convicted resulted from police/prosecutorial misconduct, so money alone won’t fix the problem.

            Oooh, there’s a number. This is death penalty only…
            “ An analysis by the Death Penalty Information Center has discovered rampant prosecutorial misconduct in death penalty prosecutions. DPIC’s ongoing review of death sentences imposed and overturned after the U.S. Supreme Court struck down existing death penalty statutes in 1972 has identified more than 550 prosecutorial misconduct reversals and exonerations in capital cases (click to enlarge image). That amounts to more than 5.6% of all death sentences imposed in the United States in the past half-century.”

          16. LarrytheG Avatar
            LarrytheG

            Right. If something is found that is wrong in the process, one can legitimately wonder if that same prosecutor also did wrong things in other cases.

            It would take time and money to go through those cases.

            It’s bad enough that someone gets sent to prison wrongly. It’s even worse they wrong was not found out for a decade or longer.

  4. WayneS Avatar
    WayneS

    It sounds like Mr. Smith met all the requirements to be granted parole.

    I wish him and his family the best.

  5. Not Today Avatar
    Not Today

    I’m gonna need you to demonstrate that you give/gave a damn about the everyday violence and injustice for the years that preceded this incident before I allot you any credit.

  6. Nathan Avatar
    Nathan

    Whatever Mr. Hall-Sizemore might have intended to demonstrate by this article, the facts show the following:

    – Even the toughest on crime Republicans (Jerry Kilgore) are not against releasing those who have paid for their crimes, and appear to be good candidates for not reoffending.

    – The same can be said for the hard nosed Parole Board appointed by Governor Younkin. Not mentioned in the article, the Parole Board voted 3-0 for release of Mr. Smith.

    In truth, everyone is well served when a convict is able to return to society and contribute in a positive way.

    Conversely, nobody is well served when someone is released who doesn’t deserve it, and reoffends. When violent criminals are released and reoffend, the victims are primarily those within the same community. This is well documented.

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