Judge Gray, a firm believer in media access to the judicial system, had also permitted two television cameras in the rear of the court—a pool camera for the Boston stations and one from Manchester’s WMUR, which intended to cover portions of the trial live.
Across the hall from the courtroom, the waiting area had been partitioned into two rooms. One provided a closed-circuit TV, placed on top of the Pepsi machine, for those who were shut out of the courtroom. The other was a broadcast media center, packed with monitors and video equipment as well as a dozen or more television and radio reporters.
At 9:28, escorted by a sheriff’s deputy, Pamela strode into the courtroom wearing a dark blue suit. Her hair, not colored since before her arrest in August, had recently been dyed lighter. She had also changed her hairstyle during her confinement. Earlier her hair had barely reached the base of her neck. Now it dangled onto her shoulder blades, with long curls in front touching her clavicle, the rest pulled back and secured by a black bow.
Pam was also thinner, so much so, a friend confided, that her mother had had to pin her skirt to fit before she came into court.
Two minutes later, the jury filed in, followed soon after by Judge Gray. The justice seated himself at the bench in front of the American and New Hampshire flags. On the wall behind him was a gold, hand-carved American eagle, wings spread, with Old Glory clutched in its claws. The judge, who found relaxation in woodwork, had crafted the bird himself.
Before him and to his right sat Gray’s law clerk, Kathleen Duggan, and to his left the court stenographer, Bill Wojtkowski.
On the wall facing the jury was a near life-sized, full length portrait of the great Daniel Webster, which for some lawyers was an unsettling sight. “I always get the feeling that Webster’s going to step down from there and correct me or something,” a defense attorney once lamented.
The room quieted. Gray nodded his OK. And Diane Nicolosi strode to the rostrum facing the jury. She introduced herself and Paul Maggiotto.
This was only Nicolosi’s third opening statement in a murder trial and she was anxious. The prosecutor spoke haltingly and stumbled over words and phrases. Still, the story that Nicolosi was unfolding was compelling enough to transcend her mild manner and verbal mishaps.
“On May 1,1990,” she said, “Gregory Smart came home from a late business meeting….He opened his front door, he turned on his lights, and he called for his dog. But his dog didn’t respond that night….”
For a half hour, Nicolosi went on, methodically laying out the state’s case. She also set to undermine the defense’s anticipated arguments. She explained away the problems of Cecelia having signed a movie deal by pointing out that the contract only came after the girl came forward to the police. She hammered home the point that the boys were receiving deals in exchange for their truthful testimony. And when all was said and done, she said, there would be the incriminating tapes.
“Ladies and gentlemen,” Nicolosi concluded, “ we are sure that when you hear the testimony of William Flynn, Patrick Randall, Vance Lattime, Jr., Cecelia Pierce, and all of the other witnesses that we’ll present to you at this trial, that you will come to the only possible verdicts in this case. At the close of the trial, Paul Maggiotto will stand before you and he will ask you to return three verdicts of guilty.”
Probably no attorney in New Hampshire was of greater contrast to Nicolosi than Mark Sisti. If Nicolosi seemed to warily dip her toe in the water before venturing forth, Sisti disdainfully jumped in with both feet, looking to splash everybody around. She was quiet; he was loud. She was humble; he was brash. Inexperienced, she seemed to recite her opening remarks. Sisti, on the other hand, ad-libbed with pleasure. And while Nicolosi never revealed if the slightest bit of outrage coursed through her veins, Sisti showed little else.
Jabbing a finger at the jury and lifting the rostrum as he spoke, Sisti dubbed the state’s case “one of the most vile concoctions ever assembled in one courtroom in New Hampshire” and “one of the most toxic soups that you will have to engulf and drink.” He sneered at the state’s key witnesses, sarcastically calling them “poor young boys.” He slashed away at the very idea of their accepting a deal “to save their hides." He branded their upcoming testimony “cock and bull stories.”
Lawyer Mark Sisti (Mike Ross/ Foster's Daily Democrat)
Billy Flynn, Sisti said, was a teenager who was crazed by an infatuation with Pam Smart and that “thrill killers” best described Flynn and his buddies, Pete Randall and JR Lattime. “These people are sick,” Sisti said. “These people are obsessed. And these people aren’t innocent little manipulated boys.” All the state’s key witnesses, from the three youths to Cecelia Pierce, stood to gain by implicating Pam in her husband’s murder, Sisti said.
Couched in this offensive, however, Sisti was ceding ground. The jury was unaware, of course, but for the first time, the defense acknowledged that Pam had indeed been having an affair with a high school sophomore. (After months of denial, Pam herself waited until just days before the opening statements to break this news to her diehard friends.)
“But let me tell you something about this affair,” Sisti said. “It was an affair wherein Pam repeatedly attempted to break it off with an obsessed, infatuated sixteen year old. It is an affair that had nothing to do with Pam’s involvement in the killing.
“Did it trigger Flynn to go on his little fantasy and his little thrill kill? You bet it did. Did he think everything would be, you know, OK, if he killed this woman’s husband? You bet.”
As for the tapes, which at this point had been heard only by a select few, Sisti beseeched the jury to look deeper than surface appearances and to put the secret recordings in the context of a confused young widow who had been shut out of the investigation into her husband’s death.
So this was it. After months of keeping the cards close to the vest, this at last would be Pam’s defense—an assault on the credibility of the key witnesses, a shameful admission of marital infidelity, and an explanation that said the jury had to look deeper than the surface appearances of Pam’s words on the tapes.
“Be patient,” Sisti told the jury. “You promised Pam that you could give her a fair trial and we believe you. We believe each and every one of you. And if you do give her a fair trial, if you in fact give her a fair trial, you will return with not guilty verdicts.”
Early in the proceedings, Paul Twomey had approached the prosecutors with a request to be told at the end of each day whom the expected witnesses would be on the following day.
All of the lawyers except Nicolosi were parents. Twomey’s two year old, in fact, developed bronchitis around the beginning of the trial and would keep the attorney and his wife awake nights throughout the course of the proceedings. The Smart case had been grueling for everyone’s family.
Now, none of the attorneys wished to stay awake all night preparing for a witness that the other side had no intention of calling. Maggiotto and Nicolosi agreed to reveal whom they planned to summon, but they wanted the same favor in return—including what the likelihood was of Pam taking the stand in her own defense.
Often, the uncertainty of whether the defendant will testify gives the defense a tactical advantage. In Pam’s case, however, the evidence was so heavily against her that Smart almost necessarily would have to testify. The prosecutors probably could have guessed.
The deal, which was not unusual among attorneys who were civil, was struck.
That first day, the prosecutors paraded out a variety of witnesses—neighbor Paul Dacier, for instance, and Derry patrolman Gerald Scaccia—who essentially set the scene of Gregory Smart’s murder.
Every good prosecutor, however, is aware of the showmanship aspect of a trial, of the need to keep the jurors interested, and to bring them into the heart of the case as soon as possible. So the last witness on day one was Pete Randall.
For the first time, the public would hear the murder of Gregory Smart described firsthand.
Randall, wearing a red and b
lack sweater, was a tough kid—physically and apparently mentally. Some people believed he tended to compartmentalize his emotions, blocking out certain memories or thoughts, which allowed him to recount a murder without affect.
Pete Randall testifies. (Mike Ross/ Foster’s Daily Democrat)
Whatever the reasons, the only time that Pete Randall seemed remotely human that day was when he first climbed behind the witness stand. About to be sworn in, Randall nervously raised his left hand instead of his right and then sheepishly corrected himself.
For most of the afternoon, Pete delivered his testimony in a flat, some would say clinical manner that led many observers to regard him as being as cold-blooded as they come.
“Now, let me call your attention to May 1, 1990,” said Paul Maggiotto. ”Do you recall that day?”
“Yes, I do,” said Randall, matter-of-factly.
“Did you go to school that day?”
“Yes, I did.”
“Can you tell me what you did after school?”
“I went to Haverhill to pick up JR’s grandmother’s car in order to go to Derry to kill Gregory Smart.”
Randall might as well have been listing engine components.
His manner of speaking, though, was far less revolting than what Randall had to say about the slaying. It would hit no one harder than Greg’s mother, who at one point burst into tears, jumped up, and hurried from the courtroom, leading Judge Gray to grant a recess.
The next day, Mark Sisti got a shot at Randall. Pete, who over the years had made comments to his buddies about whether or not he could kill someone, was the defense’s best chance to further the theory that the boys were “thrill killers.”
Sisti did not even bother to acknowledge Randall’s existence before he started in on him.
“Uh, Pam Smart didn’t make you kill anybody, right?” the lawyer asked.
“She didn’t make me kill anybody,” Randall replied.
It went on like that for most of the cross-examination, but by the time it was over, Sisti had unintentionally brought out a softer side of Randall that the jury had not seen the day before.
At one point, Sisti got Pete talking about his mother. What came through was a kid who for better or worse was obviously protective of her.
Sisti asked Pete why he had beaten up Ralph Welch. Rather than play the tough guy, Randall began to speak about the Lattimes’ adopted son, Ryan. “Ralph had said things that I didn’t like,” Pete said. “I mean, he had said things that, about me being mean, and maybe hurting a kid, a little kid that I really cared for.”
All the same, no one was going to be sending Pam Smart away for life based on what Randall had to say.
Then JR Lattime took the stand. He also came off as distant and unmoved by the murder. Sisti shook him from the beginning with questions about the boys discussing the case while they were in custody. The lawyer seemed to be suggesting that the teenagers had concocted an elaborate tale that blamed Pam for the murder.
Sisti also asked JR to talk about his response to the killing. He brought up singing “Shoofly Pie” and JR’s comments to investigators that on the night of the murder he had been relatively unaffected by Greg’s death.
“So the first night it doesn’t bother you and then over time it bothers you," said Sisti. “Is that what you’re saying?”
“The first night the actual fact that somebody had been killed didn’t even sink in,” said JR. “I was, like I said, scared, nervous. We tried to get back. Like I said, we went back to Seabrook; I dropped everybody off, and I went right home and went to bed.”
“OK,” said Sisti, “it didn’t bother you because you didn’t even know the guy?”
“At first that night…I used to think, ‘Well, I didn’t know him.’ It’s just like, you know, if you see somebody get killed over, you know, on TV, like if you see the news and that…And the more and more I thought about it, the more and more it started to bother me.”
JR Lattime in court. (Mike Ross/ Foster's Daily Democrat)
For the most part, the trial was progressing smoothly. On Friday, March 8, however, while JR was being cross-examined, Judge Gray suddenly ended the proceedings for the day and instructed the lawyers not to speak to anyone about the reason.
Bill Smart stood up in the front row of the courtroom and quietly demanded that Paul Maggiotto tell him what was going on. He was afraid that JR, who had taken the Fifth Amendment just a few minutes earlier, had somehow caused a mistrial.
The prosecutor took the Smarts into a room and explained that it had nothing to do with JR. Instead, a call had come in to the courthouse for Diane Nicolosi. On the telephone was a woman who called herself Linda Avory. It was incredible, but the woman said she had attended grammar school with Pam Smart and was holding an incriminating letter from Pam about the murder.
The woman reported that Pam had written to her before Greg’s death, saying the Smarts were having problems in their marriage and that Pam planned to have Greg killed. After the murder, the woman said, Smart offered to buy the letter back for ten thousand dollars.
After much hesitancy, the woman said she was coming forward and planned to deliver the letter to the Derry Police Department that afternoon.
She failed to show or call, however, and the prosecutors decided that she had merely been a crank caller.
The trial resumed on Monday, and Sisti and Twomey went back to working at neutralizing the state’s witnesses. For the most part, they were successful. Randall’s coldness proved to be off-putting. And JR seemed less than completely honest.
The flow of the trial turned, however, when Billy Flynn took the stand. Tall, with sad brown eyes, Flynn seemed to be the least likely “triggerman,” as some of the journalists would later describe him.
On his first day of testimony, Flynn recalled how he met Smart, the first time they kissed, and the first time they had sex. The details had much of the gallery fascinated yet shifting uncomfortably in their seats.
“And had you ever made love to another woman before?” Paul Maggiotto asked.
“No, I hadn’t,” said Flynn.
“That was your first time?”
“Yes, it was.”
“Is that what you told Pam?”
“Uh, no, it wasn’t.”
As his testimony went on that day, Flynn would also reveal the discussions and previous attempt that led to the murder.
For the media, it was sensational stuff, an intimate look into Pam’s use of sex to manipulate the boy. The evening news and the next day’s newspapers jumped into the Smart trial wholeheartedly. Billy’s photo was on page one in both Boston newspapers and all over New Hampshire and northern Massachusetts.
“Smart’s teen killer recounts sex romp,” screamed the tabloid Boston Herald. “Gunman: Teacher seduced me with striptease.” Meanwhile, the Union Leader, as it did with much of its trial coverage, stretched a two-line banner headline across page one in a typeface most papers reserve for declarations of war. “Flynn: Pam Smart Said, ‘If You Love Me, You’d Do This For Me.’”
The next day, Billy’s seventeenth birthday, Maggiotto asked the teenager to recall the murder. Flynn had never been able to talk about Greg Smart’s death without becoming emotional. In pretrial interviews, he had wept in front of Dan Pelletier and Paul Maggiotto as well as the defense team’s lawyers.
Now, a packed courtroom and a live television audience watched raptly.
Maggiotto, knowing that he had a witness who could not contain his emotions, was like a conductor as he brought the boy’s story to a crescendo. First, the prosecutor had Flynn actually kneel on the courtroom floor before the jury. Ostensibly, the prosecutor wanted the boy to demonstrate how Greg had been positioned. Then, he showed Flynn the knife. And then, the gun. With each new request, Billy’s eyes would again well up.
Afterward, Twomey and Sisti would jibe the prosecutor, bestowing him with the nickname, “the Milkman,” because Maggiotto had milked Flynn’s revelations and emotions f
or all they were worth.
The teenager’s testimony, punctuated with sniffles and sobs, was heart wrenching, so much so that Judy and Bill Smart were baffled by their response. Their son’s murderer was describing Greg’s death and yet they actually felt sorry for the boy.
Indeed, it was hard to feel anything else.
“After you pointed the gun at his head what’d you do?” asked Maggiotto.
“I just stood there,” said Billy.
“How long was it?”
“A hundred years it seemed like. And, unh, I said, um, God forgive me.”
By now Billy was weeping, but inside Paul Maggiotto was surely smiling.
“After you said, God forgive me, what happened?” the prosecutor asked.
Billy waited seven long seconds. “I pulled the trigger,” he said, crying.
Try as he might that afternoon, Mark Sisti could not discredit Billy Flynn. As he’d done with Randall and Lattime, Sisti came out on the attack. The lawyer asked about the day after the murder and if Flynn remembered buying Sal Parks lunch with the money from Greg’s wallet.
Apparently trying to shake him, the attorney also forced the boy to look directly at Pam. Billy had said that Pam once showed him a bruise, supposedly inflicted by Greg. So Sisti asked Smart to stand and told the boy to tell where the bruise had been. Flynn kept his composure.
Ever loyal to his friends, Flynn tried to defend Pete Randall, whom Billy felt the media had unjustly criticized as cold-blooded.
“OK,” said Sisti, “in order to be treated fairly by the media, you got to show some emotion up there, do ya?”
“No,” said Billy. “I don’t really care what the media thinks.”
“You don’t care?”
“No, I care what Greg’s parents think.”
“So you’re crying for Greg’s parents today?”
“No, I’m crying because I feel bad about it and I wish I never did it.”
Teach Me to Kill Page 31
