Waseem Daker, who was sentenced to life in prison plus 47½ years in 2012 for the 1995 killing of Karmen Smith and the assault of her then-5-year-old son, Nick Smith, appeared before Cobb Superior Court Judge Mary Staley on Thursday for a hearing on his motion for a new trial.
For more than six hours Thursday, Daker stood before Staley with his hands in shackles as he went one by one through 80 of the more than 100 reasons why he believes he deserves a new trial. The hearing will resume at 8 a.m. today.
One of his arguments is that DNA found on the murder weapon and a baseball cap and fingerprints at the scene were not his but that of someone else.
“My contention is that there is a numerous amount of evidence that shows that I’m not guilty of this crime,” Daker said. “There’s so much of it, let me think of where to begin.”
He said two people’s DNA was found on a murder weapon at the scene and that one was from a male and the other could be from a male or female. He did not specify which murder weapon.
Karmen Smith was reportedly stabbed twice in the back and then strangled with a rope Oct. 23, 1995.
Daker also argued that a hair found on the baseball cap and the fingerprints at the scene were not his.
State’s star witness recants
“If you believe the state’s theory, the only thing that links (myself) to the crime scene is one hair that they did a nuclear DNA test on in 2009 that matched me,” he said. “There’s no direct evidence; that particular piece of evidence is circumstantial.”
The hair Daker mentioned was one that was found on a blanket Karmen Smith was wrapped in after she was killed.
Loretta Spencer Blatz, who testified against Daker during his trial last fall but in March recanted her testimony in two separate affidavits, helped this particular argument.
One of the documents she filed states Daker’s hair follicle found on the blanket could have been left there days before when he and Blatz reportedly used the blanket together.
That information was not brought up during the murder trial.
“The verdict itself is based on fraud, basically, false allegations,” Daker said. “Despite all the demonizing she (Blatz) has done to me over the last 18 years … she believes in my innocence and that she falsely accused me.”
Blatz has not been subpoenaed for the hearing but she was in court Thursday and sat just a few rows behind Daker, who turned around to look at her each time he referenced her.
Daker also accused Staley and Judge Donald Howe of bias during the pre-trial hearings and trial.
“With all due respect judge, I believe that you had bias towards me throughout the entire trial,” Daker said. “The way your honor treated me, spoke to me in front of the jury … I was denied a fair trial because I was denied a fair judge.”
He said that Howe, who was a visiting senior judge from Douglas County, “rubberstamped” motions by the district attorney’s office and that Staley allowed the state to make arguments but then denied him.
“You gutted my defense,” Daker told Staley. “I don’t know any other way to say it.”
When Daker is done making his arguments the district attorney’s office will have a chance to respond to them.
More than 60 people subpoenaed
Before going through his list of arguments one by one, Staley asked Daker how many people had been subpoenaed to submit information or testify on his behalf.
“I’ve lost count to be honest,” Daker told her.
“That’s an inadequate answer,” Staley responded quickly. “You don’t know how many people you’ve subpoenaed yet you have all these subpoenas you put out for everybody with no direction to them whatsoever to do and you don’t know how many people you’ve subpoenaed?”
Responded Daker: “I know it’s approximately 60, but I haven’t received confirmation of service on some of them.”
Cobb Assistant District Attorney Jesse Evans told Staley that his office has received a number of motions to quash, or suppress, subpoenas by attorneys representing various individuals and government employees who were ordered to appear in court.
“I’m hopeful that the court can give us some guidance,” Evans said.
Staley told Daker to make a list of every person he subpoenaed and put in writing how their testimony is relevant to a motion for a new trial.
She also told him to specify which reasons in his motion relate to that person’s need to testify.
Afterward, she excused everyone who had been subpoenaed and ordered Daker to begin his arguments for a new trial.
DNA expert on Daker’s side
Dr. Greg Hampikian, a DNA expert, geneticist, biology professor at Boise State University in Idaho and director of the Idaho Innocence Project, was in court for the hearing and wanted to testify.
“I was hoping the judge would let me testify out of order,” he said Thursday afternoon. “But (Staley) hasn’t given (Daker) anything, not even a normal courtesy to a witness.”
The Idaho Innocence Project, which was established in 2005, has a mission to identify, investigate and pursue claims of wrongful conviction and actual innocence made by Idaho inmates.
Hampikian attended Thursday’s hearing on his own accord and was not paid to be there.
“I was in Florida on vacation and just found out about this hearing (Wednesday) night at 11 p.m. and flew in on my own dollar and bought a shirt and tie at the airport,” he said.
Hampikian wanted to testify about Daker’s hair follicle, which Blatz stated in her affidavit could have been transferred to the blanket before Karmen Smith was killed.
“Her affidavit is a complete game changer,” he said. “The only evidence against him is the hair on the body. I wanted to testify about the impact of that hair.”
He originally testified last fall at the request of Daker’s former defense attorney but said he didn’t believe the now convicted murderer was innocent at that time.
“I always teach my students that you never know when the innocent client slips through your fingers,” Hampikian said about knowing what he knows now. “I think it’s just a horrible miscarriage of justice.”
He was drawn back into the case after receiving a call from Blatz about recanting her testimony.
“She just wants to get the truth out,” he said. “My testimony would have been totally different if I had known about her testimony. It’s just a horrible, horrible thing that he’s in prison.”
Hampikian has also been trying to help Daker get a new defense attorney and has contacted a few people himself.
He used to live in Georgia and still works with the Georgia Innocence Project, so he is familiar with several local attorneys.
“I’m just a very concerned and troubled expert,” he said. “I think a terrible injustice is being done in court (Thursday). I realize the judge has to run an orderly courtroom but I am displeased that I wasn’t able to talk. I believe (Blatz) would like to testify, too.”
Hampikian earned his doctorate in genetics in 1990 and has worked on hundreds of forensics cases with his Idaho-based organization, private parties and police agencies since 1999.
Since the Idaho Innocence Project was founded, it has helped more than a dozen wrongly accused or convicted people.