Greenwood attorney Lee Abraham’s civil trial sought against former oncologist Arnold Smith appears mired in legal procedure at least for the foreseeable future.
In Leflore County Circuit Court Monday, Judge Barry Ford heard and ruled on four motions filed by Smith’s defense team seeking a number of procedural changes — including sending forensic evidence to an expert in Arizona — that will further delay a case that has lingered in pre-trial status for 5½ years.
Abraham seeks an unknown amount of damages from Smith, who was charged with capital murder and conspiracy to commit murder in a 2012 shooting at Abraham’s downtown law office.
Abraham was not injured, but according to his legal team, his quality of life was diminished irreparably by Smith’s conspiracy to kill him. Smith’s team, meanwhile, continues to raise questions about what happened the night of the crime, which left one man, Keaira Byrd, dead and another severely injured.
The motions heard Monday were all filed by Smith’s defense team. One sought to limit the plaintiff’s request to have Smith’s cellphone examined by a forensics expert.
William Bell of Jackson, Smith’s lead attorney, argued that the former physician’s phone contained privileged information, including photographs of patients, that should be protected.
Bell argued that the court’s previous appointment of Judge Robert Gibbs as Special Master in the case, assigned to examine the collected data from Abraham’s cellphone, which also contained privileged information, should stand for Smith’s cellphone information as well.
Lucky Tucker of Oxford, Abraaham’s lead attorney, said the information his team is seeking from Smith’s phone is different in scope and needs a forensic probe. Tucker further argued that any privileged patient information belonged in Smith’s office files, not “walking around on a cellphone.”
Ford granted the motion and ordered that the contents of Smith’s phone be put on a USB drive and sent to Gibbs for examination at Smith’s expense.
The defense team also requested depositions for 11 new witnesses added by Abraham’s team, all classified as non-retained or subject only to written questions rather than a full deposition.
Bell argued that an Attorney General’s Office Cybercrime Unit hard drive had been made available to Abraham’s team, giving them undue advantage and access to the witnesses in question, all of them either investigators for the AG or crime lab experts from the State Medical Examiner’s office.
Harold Pizzetta from the Attorney General’s Office argued against the motion, saying “at no point have attorney general investigators injected themselves into this civil suit.
“The attorney general is not handing over some hard drive to one side and not the other.”
Pizzetta characterized the defense team’s tactics as attempts to derail the case, citing numerous other suits filed by Smith’s team, including in federal court, that have been rejected over the last five years.
Pizzetta said that deposing all those witnesses would seriously inconvenience operations at both offices and that the depositions wouldn’t reveal anything both sides didn’t already know, including the results of the autopsy report.
Ford ruled against deposing the non-retained witnesses and said they should be sent written questions instead.
A third motion involved sending physical evidence in the case to a forensics expert in Arizona and asked for access to weapons Abraham reportedly carried on the night of the shooting. Police reports indicated that Abraham was not present in the room where the shooting happened and his weapons were not discharged, but they were not entered into evidence.
Bell used the opportunity to claim that there is “circumstantial evidence in this case to support that Lee Abraham shot Keaira Byrd.” Bell said three Attorney General’s Office investigators on the scene all said they did not know whose gun fired the shot that killed Byrd, though police and the district attorney concluded that one of their guns fired the fatal shot.
Tucker rebutted, saying that “it is entirely irrelevant to this civil suit which investigator shot Keaira Byrd. We need only to prove that Lee Abraham didn’t. The investigators both testified he didn’t, he wasn’t in the room and he didn’t fire a shot.”
Tucker said this new line of inquiry “opens up a whole new avenue of discovery to delay the trial.”
Tucker said his team’s job is to prove that Smith hired people to assassinate Abraham, and that he was “lucky enough” to have investigators from the Attorney General’s Office with him to prevent it.
Ford ruled that the evidence collected thus far could be sent to the forensics expert in Arizona, but excluded Abraham’s weapons.
Ford denied a fourth motion by Smith’s team to unseal court records being sent to the Mississippi Supreme Court.
No trial date was set at the hearing.
•Contact Kathryn Eastburn at 581-7235 or keastburn@gwcommonwealth.com.
