Executive Council weighs Pam Smart's appeal

It only took a few minutes for the Executive Council to determine the fate of Pam Smart by unanimously denying her request for a pardon hearing, but the cards were stacked against her long before the hearing in Concord on the afternoon July 13, 2005.

"A pardon is unusual," said New Hampshire Attorney General Kelly Ayotte. "They are rarely granted and are viewed as an act of executive grace."

In fact in Ayotte's term as Attorney General, which began in 2004, she has only seen two pardons granted by the Executive Council.

"They don't grant many of them," Ayotte said. "When they do it's more of forgiveness than forgetting; a pardon doesn't erase a conviction, it erases the consequences of a conviction."

In the case of Smart, who was convicted March 22, 1991 of being an accomplice to first-degree murder, conspiring to commit murder, and tampering with a witness; the denial of this pardon hearing may be the final dagger to her hopes of someday getting out of prison.

Smart is currently serving a mandatory life sentence without the possibility of parole at Bedford Hills Correctional Facility in Bedford, N.Y.

She has exhausted all legal appeals. In her letter that was dated on Dec. 1, 2004 and addressed to former governor Craig Benson, Smart told the former governor that her "life literally depends on your mercy and careful reconsideration of whether justice has truly been served in my case."

The state pardon process

Prior to Smart's petition for a pardon she filed an appeal for re-trial in June 1991. The conviction was upheld. In October 1991 Smart's attorney Albert Johnson filed an appeal for re-trial to the N.H. Supreme Court, which was denied in the spring of 1992.

In April 1997 she filed a writ of habeas corpus to the state, which stated that she was imprisoned unlawfully. It was denied that same summer. In 2002 she appealed for federal intervention in N.H.'s first circuit of federal court appeals that was denied.

In 2004 she appealed the federal decision and a three judge panel ruled in favor of the 2002 decision. Finally in 2004 Smart's lawyers Greg Adamski and Karen Conti decided that petitioning for a pardon would be their next legal avenue.

The process for applying for a pardon is a little different in New Hampshire compared to other states because in most states the decision will either fall on the governor or a board of pardons.

In New Hampshire the power to grant a pardon falls on the governor and the five-person Executive Council. The pardoning process is summed up in the New Hampshire Constitution section 2.4 article 52 "The power of pardoning offenses, except such as persons may be convicted of before the senate, by impeachment of the house, shall be in the governor, by and with the advice of council: But no charter of pardon, granted by the governor, with advice of the council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offense or offenses intended to be pardoned."

According to Governor John Lynch, who choose to answer Equinox questions by e-mail only, the governor and council act as a negative on each other.

"For items such as contracts, appointments, or pardon hearing request, the Governor and Council act as a "negative" on each other. Both the Governor and a majority of the Council must agree for any item to move forward," Lynch said. "The Governor can "veto" something approved by the Council, and the Council can choose not to approve an agenda item offered by the Governor."

According to Senior Assistant Attorney General Jeff Strelzin, the attorney general's office gets about 10-20 petition for pardons per year and it's rare that these petitions result in a hearing or that the request is granted.

Strelzin said, that the executive branch is reluctant to reverse the decision out if respect for the victims and the jury who made the original decision.

"It undoes what the jury did," Strelzin said. "That conviction only meant something in the short-term."

The Executive Council

Many states in the country have a type of council which advises the governor, however New Hampshire's Executive Council, also known as the Governor's Council, has the ability to check the power of the governor. The position of Executive Councilor offers unlimited opportunities to run for the position and grants the councilors, along with the governor, some of the state's most important powers, such as the spending of a significant portion of the state's budget, the nominations and appointments of all judicial officers, the attorney general, and all officers of the navy, and general and field officers of the militia, just to name a few.

The council was created in 1617 and according to Strelzin; the council was created because the people in those times were concerned about giving one person too much power (Governor). In effect the Executive Council was created to protect people from the governor and acts like a board of directors.

The council includes five councilors who represent five districts. The five councilors include District 1 councilor Raymond Burton of Bath, NH. Burton is currently the longest serving councilor as he is in his 14th term. The District 2 councilor is Peter Spaulding of Hopkinton, NH. Spaulding is currently serving his 11th term as a councilor. Ruth Griffin of Portsmouth, NH represents District 3 and is currently serving her 10th term as a councilor. The newest members of the council include District 4 and 5 councilors Raymond J. Wieczorek and Debora Pignatelli. Wieczorek and Pignatelli are currently serving in their second and first terms respectively as councilors.

July 13, 2005; Smart's fate is out of her hands

In order for Smart to even be granted a pardon she must first be granted a chance for a pardon hearing. Her request for a pardon hearing went before the governor and council at its regular meeting on Wednesday July 13, 2005. Smart's request was number 40 on a more than 166 item agenda and the council made quick work of it.