By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
Murray called Hubbard as a key witness, but she hired a lawyer to fight testifying. She threatened that she would exert her Fifth Amendment privilege against self-incrimination if questioned. Murray trumped her. He forced her to the witness stand by granting her immunity from prosecution.
During a prior, secret grand-jury hearing, Hubbard had first denied, then admitted to, having a sexual relationship with Smith. But she contradicted that testimony when she took the witness stand late last month. Murray asked her to describe her relationship with Smith. "He's my brother," said Hubbard, who is not related to the defendant.
Murray asked if she had had a sexual relationship with Smith. Hubbard's face grew animated as if stung. "No," she declared.
This exchange followed:
Murray: Do you recall your grand-jury testimony?
You testified that you did have sex with him?
What's the truth?
Keller‚ who had failed in pretrial motions to bar the prosecution from raising infidelity issues‚Äîobjected for the jury, but Superior Court Judge Daniel B. McNerney ordered Hubbard to answer.
"I'm not sure of your definition [of sex]," Hubbard said to Murray. "Can you explain?"
Hubbard had resisted Murray's question at this point for more than five minutes, and he'd grown testy. She'd taken seven, eight or nine seconds to answer simple "yes‚" or "no‚" questions. Murray stood upright, shook his head, pointed both hands in her direction and said slowly, "Did you ever have any sex with Mr. Smith?"
"No," said Hubbard, who then babbled incoherently, without a question pending, about her mother, her father, her own husband and a 2001 trip to the Wynn Hotel in Las Vegas. She finished with a declaration that made several jurors go bug-eyed: "It [Smith's penis] wouldn't penetrate!"
To impeach Hubbard, Murray subpoenaed Wendy Davis, another one of Smith's mistresses. Davis testified that Hubbard and Smith had a sexual relationship. Murray asked her how she knows. "'Cause I seen them having sex," Davis replied. "I walked in on them in 2000. . . . The lower parts of their clothes were off, and they was engaged in sex."* * *
During the same encounter when he stood coolly in his dead wife's dried blood, Marvin Smith gave McShane the following account of his return home the evening of the day of the murder:
At 6:30 p.m., Smith parked in the driveway. He usually entered the house through the internal garage entrance. However, on this night, he said, he walked to the front door. The claim is critical in the case because Smith's story would disintegrate if he'd seen his wife's white 1999 Lexus sedan parked in the garage.
At the front door, he said, he noticed the shade down. "It comes down automatically at 2 p.m. in the afternoon, and it goes back up at 8 o'clock in the evening," Smith told McShane. "So if my wife is home, uh, then the shade is up. . . . So when I pulled up and I saw the shade down, I knew she wasn't home."
"Okay," McShane said.
"When I get here [the front porch], if, if my wife is home, there's a light on in the family room. The TV's usually on when my wife is home. . . . So I know she's not home. Well, I put my, my key in there. I, I know it's locked. I know. I know. I, I think it's locked. I didn't even try. I just put my key in there and turned it, and I just knew she wasn't home."
"Okay," McShane said.
"When I walk in, I notice the burglar alarm's not on. It's dark. No lights in here . . . I went directly to the kitchen, turned the light on, and then I saw a drawer was out, half-open. So I'm wondering why she left that drawer open, and so I knew she left in a hurry or something like that. . . . I saw the clay pot. Now, what in the world is that pot turned over. Then I saw the [breakfast nook] window open. I, I, oh, oh, somebody's been here. Somebody's in here! I said, I got to get out of here.' I said, I, I got to get out of here 'cause somebody's in here,' and so I turned around, and I said, Let me get out of here.' I turn around. I go back out this way same way [to the front entrance] I came in. I saw a light flash upstairs, and I made about four steps up. Then I heard somebody talking. When I heard somebody talking, I knew somebody was in here, I got to get out of here. I went back down and went out the door and called, called the police."
Smith ran to his GMC truck, and, though he claimed he believed a burglar was in his second-story bedroom, he grabbed a cell phone to report a burglary, but not the .45-caliber handgun that was also in the truck's center console. He didn't call his wife while he waited for police to arrive.
Later, Smith's pre-arrest recounting of events gave McShane and Murray plenty of fodder: If Smith saw flashes of light and heard voices when he began to flee through the front door, why hadn't he seen those same conditions when he entered at the same spot in the dark house?