On October 11, 2005, Michael Porter killed Kelsey. No one else was present in the home. Richard Smothermon, the purported Lincoln County District Attorney, knows this. On February 2, 2007, Smothermon allowed Kelsey's killer to escape justice. Porter chose a 30-year sentence and a conviction of enabling child abuse over a life sentence and convictions for first-degree murder and sexual assault on a minor female child. Porter did not go to trial because he thought he could be found guilty. Smothermon himself stated on the record in open court that he believed Porter murdered and sexually assaulted Kelsey. Porter also admitted under oath that he was aware of the medical examiner's report that cited multiple sexual abuse. Porter claimed that Raye Dawn was responsible for what happened to Kelsey. Smothermon again stated on record in open court that he disagreed with Porter. In putting a convicted felon and liar on the stand, Richard Smothermon also knew he was soliciting flase tesitmony.
On October 20, 2005, Michael Porter was arrested for the murder of Kelsey Smith-Briggs. The Oklahoma Medical Examiner's Office ruled Kelsey's death a homicide. Kathie Briggs and her supporters picketed the office of Richard Smothermon, the District Attorney, until the political pressure grew so strong that, on Febrauary 24, 2006, criminal charges were filed against Raye Dawn. It took Smothermon more than four months to charge Raye Dawn. Smothermon knew that without Raye Dawn placing Kelsey alive at the house when Porter showed up on the afternoon of October 11, 2005, he had insufficient evidence against Porter to convict him of murder. Raye Dawn agreed to testify at Porter's preliminary hearing without any agreement with Smothermon's concerning any charge against her. Prior to Porter's preliminary hearing, Smothermon had Kelsey's body exhumed and a second autopsy was performed by an out-of-state pathologist. Following the second autopsy, Smothermon filed an Amended Information against Porter charging him with murder and sexual assault. Porter's preliminary hearing was held on August 23, 2006, amid the continuing media circus that encircled the Lincoln County Courthouse. News stations were reportedly stationed on every corner of the block with live feed trucks. At Porter's preliminary hearing, Raye Dawn testified that she had never seen Porter phsycially abuse Kelsey. At the conclusion of the preliminary hearing, Porter was bound over for trial for the crimes of murder in the first degree and sexual abuse of a child. His trial was eventually set for February, 2007. It was during this time that the attorney for Porter learned that Porter had corresponded with the Briggs after Kelsey's death. Just five days before Porter was set to go to trial on first-degree murder and sexual assault charges, he reached a plea agreement with Smothermon and pled guilty to enabling child abuse and received a 30-year sentence. The plea bargain meant no one would ever be prosecuted for Kelsey's murder and that Kelsey's probable real killer, Michael Porter, had escaped justice for her death.
Following Raye Dawn's trial, Smothermon was interviewed by KOKH FOX 25 concerning his decision to put Porter on the stand. Smothermon had this to say, "It was a decision I made against the advice of some other poeple that were trying the case with me. There was a great deal of risk putting him on the stand because it put the face of the monster in front of the jury. He's such a huge part of the evidence in the case, I thought it improper for me to not present him to the jury." Smothermon was certainly right when he said it involved "a great deal of risk" to put Porter on the stand. In doing so, Smothermon knowingly and directly violated Rule 3.3 of the Oklahoma Rules of Professional Condcut and Disciplinary Rule 7-102(A)(4), which provides that a lawyer shall not "knowingly use" perjured testimony or false evidence. He also violated Article II, sec. 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. Where perjured testimony is crucial to a jury's decision, the resulting conviction is fundamentally unfair and must be set aside.
Porter's story the day of the murder is simply not plausible. Our consulting experts have advised that the story Porter told on the stand at Raye Dawn's trial simply does not comport with medical science. Smothermon allowed Porter to testify to a series of events on October 11, 2005 that Smothermon knew were absolutely false. Porter testified that it struck him how quiet the house was that day after Raye Dawn left. We seek to prove that the internal injuries Kelsey suffered on October 11 are very symptomatic. Porter's story has no support. If Kelsey had supposedly sustained these injuries before Porter arrived home, as Porter claimed in his testimony, the house would have been anything but quiet. Kelsey would have been curled up in a fetal position. She would not have wanted to move, she would have been crying and screaming. Abdominal trauma is immediately symptomatic from the moment of injury. Contrary to Porter's testimony, Kelsey would not have been in the other room sleeping if she had suffered these injuries at the hand of Raye Dawn before Porter got home. Rather, there would have been a marked change in her condition that would have been evident to any caregiver. Kelsey, who was verbal at the time, would have been crying, screaming and saying, "I'm hurt" or "My tummy hurts." She would have been complaining of pain. Clearly, the house would not have been quiet as Porter asserted in his testimony at trial. He had exclusive control and custody when he murdered Kelsey, and no one else was present at the house.
Ms. Patti Bonner from Comprehensive Home Based Services testified at trial that she was at the home with Raye Dawn and Kelsey on October 11, 2005 from 12:00 to 1:30 p.m. Kelsey had a purple bruise on her cheek, a band-aid on one finger and the little toe on her right foot was red and sore. Ms. Bonner testified taht when she left the house that day Kelsey was alive and Raye Dawn and Kelsey were sitting on the front porch playing with a turtle. It was after Ms. Bonner left that Kelsey had an accident and urinated in her panties before her nap. Raye Dawn put Kelsey to bed wearing only a long black biker t-shirt with no panties or pull-ups on. The two laid down to take a nap together around 2:00 p.m. Porter testified that he left work around 2:35 or 2:40 p.m. and got home around 2:45 p.m. [He told investigators that he left work between 2:15 and 2:30 p.m.] He came home and Raye Dawn woke up. Porter said Raye Dawn offered to go pick up his daughter from school. Raye Dawn leaves the house adn tells him to take care of her baby. It is at this piont that Porter claims he went out to the garage to clean some tires but decides not to and comes back inside the house. After coming back inside the house, he claims he rounded up the laundry in the house, cleaned the kitchen counter and made himself some water. It is here where he says he noticed how quiet the house was. He testified he walked aroudn the sofa to turn on the television and heard a noise from the bedroom---a noise he describes as an exhale, a guttural sound, an unnatural sound. He testified that he ran into the bedroom and saw that Kelsey was blue and not breathing. Porter alleges that he tried to resuscitate Kelsey by asking her what was wrong.
Next, he went into the kitchen and called Gayla. The first person he calls is Gayla Smith, Raye Dawn's mother. He doesn't call the police. He doesn't call 911. He calls the child's grandmother. Gayla told Porter to call 911. Porter said he called 911 after talking to Gayla. Porter said he next placed Kelsey on the kitchen counter and tried to give her CPR. But it is what Porter does next that is truly remarkable and very significant. He says that he takes a pull-up that is sitting on the counter and puts it on Kelsey because he doesn't want anyone to see her like that. Picture that for a moment. There is a 2 1/2 year old child lying on the kitchen counter in a long t-shirt that her mother put on her after she had an accident and urinated in her panties before her nap. The child is reportedly not breathing, and what does Porter do but place a diaper on her. He placed the diaper on her because he had sexually assaulted her and he didn't wan the paramedics to see the evidence. Porter told OSBI investigators taht he circled the living room with Kelsey in his arms. He was circling the living room because he had done this terrible thing and he was trying to figure out what to do. Porter claims that he did not call 911 immediately because he "didn't want to believe how bad it was." Gayla arrived shortly after and took Kelsey.
Gayla testified at trial that Porter called her that day between 3:10 and 3:15 p.m. and said something was wrong with Kelsey. Gayla said that Kelsey squeezed her hand just before she handed her to the responders. The EMT's were dispatched to the house at 3:16 p.m. That gave Porter almost 30 mintues alone with Kelsey---sufficient time to murder and perhaps sexually assault her. Mr. Jenkins, one of the EMT's, testified that Raye Dawn was not at the house when he arrived. Raye Dawn did not arrive at the house with Porter's daughter until after Gayla and the paramedics arrived. Jenkins also claimed that the child's body temperature was still warm to the touch. When the OSBI came back into the house to investigate, the water in the kitchen sink was running. Most likely, Porter left the water running when he put Kelsey on the kitchen island to clean her off after he murdered and sexually assaulted her.
Porter's actions in the days following Kelsey's murder are certainly indicative of guilt. At the hospital, Raye Dawn wanted an autopsy performed because she wanted to know what happened to her daughter. Porter, on the other hand, objected to an autopsy being performed. Reverend Charles Pearcy, who has been a minister for 35 years, testified that he was called to the hospital in Prague on October 11. He observed Porter throwing himself against the walla nd shouting. Reverend Pearcy thought Porter was overreacting and it bothered him that Porter was not comforting Raye Dawn. While Raye Dawn rocked Kelsey, Porter was in the hall yelling out, "Oh, my God!" Reverend Pearcy said that Porter blamed himself and said, "I hope I wasn't too rough with her." Reverend Pearcy thought Porter was feeling a tremendous amount of guilt. Officer Morrison, a Prague Police Officer, testified that Porter said, "She's never going to forgive me," while pacing back and forth outside the hospital. Morrison testified that Porter then fell to the ground and was staring up at the sky, but he was not unconscience. Porter was tekn inside the hospital on a stretcher complaining of chest pains. The physician's assistant testified that she checked Porter for injuries and cleared him. According to the physician's assistant, Porter did not console Raye Dawn.
That night at the house, Porter ate a good meal while Raye Dawn refused to eat. One or two days after Kelsey's death, Porter faked a suicide attempt with a bottle of Tylenol. Raye Dawn's sister found 12-13 pills under the bed. Rachelle Smith testified that Porter got a gun out of the night stand and threatened to commit suicide. Raye's cousin testified that she took Porter to the hospital in Prague after his suicide attempt with the Tylenol, but Porter refused to go inside because Kelsey had died there. She talked him into going to the hospital in Shawnee. She dropped him off and went to pick up Rachelle and when they returned to the Shawnee Hospital, the hospital informed them that no one under Porter's name had ever checked into the hospital. When Porter was being questioned by OSBI investigators about the case, he almost passed out. Porter told investigators that he had never seen Raye Dawn beat Kelsey or ever lose control with Kelsey. When asked by investigators whetehr Raye Dawn could beat Kelsey until she was dead, Porter said, "Never, never. She would never hurt her." The agents asked him this over and over again and Porter always gave the same answer. His words exculpated Raye Dawn, but his demeanor and behavior incriminated himself.
Porter testified under oath before Judge Key that Raye Dawn was a fit parent. Five days before he was set up to go to trial for first-degree murder and sexual assault, he pled to enabling child abuse against his wife, in contradiction to his sworn testimony, his voluntary statements to law enforcements officers and and his written statements. Porter admitted at trial that he left his own children alone with Raye Dawn. Rachelle Smith testified that Raye Dawn took care of Porter's kids five days a week while Porter was away at work. Further, Ms. Bonner, the CHBS worker, testified that it was not unusual for Raye Dawn to be alone with Porter's children. Presumably, if Raye Dawn was an abuser of her own child, Porter would not have left his children alone with her.
The key to all of this miscarriage of justice is that Porter met with Kathie Briggs less than 90 days after Kelse's death. Kathie Briggs had a face-to-fae meeting with Porter, the man accused of murdering her granddaughter. Moreover, Porter and Kathie Briggs corresponded by e-mail at least a dozen times after he was charged with Kelsey's murder. Kathie Briggs is a person who has made it her mission in life to ruin Raye Dawn. Kathie writes on her website that she was just using Porter for information. Undoubtedly, information to use in her quest against Raye Dawn.
Kathie Briggs has an insatiable habit to draw attention to herself, to create drama in which she is the leading lady. Ironically, it was the tragic death of an innocent child that brought a form of emotional and psychic gratification to Ms. Briggs to be the center of attention. Kathie Briggs is too real to be fictional, even for a William Faulkner novel, and Lance Briggs hoped for a financial windfall from his child's death. Both Porter and Kathie Briggs ahd something to gain by meeting and corresponding---Porter got the plea deal of a lifetime and Kathie Briggs got lies to assist her in her conspiracy against Raye Dawn.
Among the most telling facts is Porter's own 7-year-old daughter's statements that she made about her father to her school counselor on October 17, 2005. Porter's daughter told the counselor that she heard Kelsey getting a spanking upstairs and when she looked inside the doorway, she found her father spanking Kelsey "real hard." Porter's daughter said her father spanked Kelsey so hard, it left her bottom "real red." Porter's daughter added that when people were around her dad, he was nice to Kelsey. But when no one was looking, her dad would be mean to Kelsey. Porter's daughter also told the school counselor that she saw her dad hit Kelsey's head up against a brick wall outside on the house. Porter's daughter told the counselor that Kelsey would cry for Raye Dawn and would crawl to Raye Dawn and cling to her legs.
Mr. Smothermon iterated a number of times throughout the trial that he believed Michael Porter murdered Kelsey and that he believed Porter was lying ont he witness stand. Richard Smothermon violated his ethical duty as a lawyer---an officer of the court---by calling Michael Porter as a witness against Raye Dawn. Worse, he proclaimed that he didn't believe him when he denied murdering Kelsey and thoguht he was the murderer. Mr. Smothermon apparently did not notice the inconsistency in his statements (or perhaps he did) for if he believed Porter killed Kelsey, then how was it possible that Raye Dawn could enable his homicidal tendencies for a child already under supervision of DHS, subject to unannounced home visits from caseworkers and the intrusion and curiosity of the Briggs family. For Kelsey to die, it had to be a sudden and forceful outburst. As such, Raye Dawn's conviction should be set aside and she should be granted a new trial. See Hall v. State, 1982 OK CR 141, 650 P.2d 893, 896-99. "The knowing use of false or misleading evidence important to the prosecution's case in cheif violates the Due Process Clause of the Fourteenth Amendment." See Omalza v. State, OK CR 80, 911 P.2d 286, 307. Porter's testimony was not only misleading, it was entirely false. Raye Dawn was not home when Porter murdered Kelsey. Porter had exclusive control and custody of Kelsey at that time. He was alone with Kelsey in the house for almost 30 minutes. Moreover, as evidenced above, his story simply is not supported by any medical science or teaching. Porter's accusations that Raye Dawn was the abuser are an absolute fraud to give Smothermon and the Briggs and to escape life in prison or a death sentence.
On June 15, 2005, Porter testified under oath that Raye Dawn was a fit parent. Porter testified at trial that the first incident of abuse he witnesses by Raye Dawn toward Kelsey was in January, 2005. Yet, five months after January, he testifies under oath before Judge Key that Raye Dawn is a fit parent. He leaves his own children with Raye Dawn five days a week while he is away at work after January, 2005. His own 7-year-old daughter identified him as the abuser, not Raye Dawn. Further, Mr. Smothermon improperly admitted on the record open court numerous times that he did not believe Michael Porter, and he believed Michael Porter to be Kelsey's murderer and the person who sexually assaulted her. Certainly, Porter's testimony was damaging to Raye Dawn and was material to the jury returning a guilty verdict. He was the only witness that testified that he had seen Raye Dawn abuse Kelsey. "When the prosecutor knows or should know that its case includes perjured testimony, a resulting conviction 'is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" See Gates v. State, 1988 OK CR 77, 754 P.2d 882, 886. See also Binsz v. State, 1984 OK CR 28, 675 P.2d 448, 450 (failure of the prosecutor to correct the testimony of the witness which he knew to be false denied the defendant due process of law in violation of the Fourteenth Amdendment). "A lie is a lie, no matter what its subject, and if is any way relevant to the case, the district attorney had the responsibility and duty to correct what he knows to be false and elicit the truth." See also Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935) (prosecutor's deliberate use of perjured testimony to obtain a conviction violates due process and denies the defendant a fair trial.
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