Originally created 08/10/00

Toddler case ends in mistrial



AIKEN - A judge declared a mistrial Wednesday in the homi-cide by child abuse case against Michael James Smith after his former girlfriend mistakenly told the jury about alleged spousal abuse.

It is the second mistrial in the case. The first trial ended in May when a jury couldn't agree on a verdict.

On Wednesday, Circuit Judge William Keesley specifically ordered co-defendant Rebecca Cowart not to tell jurors about alleged abuse by Mr. Smith or any previous criminal charges, saying it would prejudice the panel.

But about an hour into testimony, Solicitor Barbara R. Morgan asked Ms. Cowart why she pleaded guilty to her involvement in the death of her 15-month-old daughter. Ms. Cowart told jurors that she felt guilty for neglecting her daughter and for not getting out of the home because of "all the physical and emotional abuse" by Mr. Smith.

Deputy Public Defender Wallis Alves immediately objected and asked for a mistrial. The judge took a 15-minute recess and then granted her request.

Judge Keesley could have sent Ms. Cowart to jail for a year for violating his order, but he said he believed it was a slip-up.

Ms. Morgan said she will seek a conviction a third time, but no trial date was set.

"I just think I would be negligent in my duties if I did not try him again," Ms. Morgan said.

Ms. Cowart, 25, and Mr. Smith, 32, are charged with homicide by child abuse in the death of Ms. Cowart's daughter, Victoria, on April 2, 1999. An autopsy showed the girl was the victim of repeated abuse during several months. Victoria died after a severe beating to the head caused her brain to swell.

Before her scheduled trial in May, Ms. Cowart pleaded guilty and agreed to testify against Mr. Smith. She has claimed Mr. Smith has a violent temper, saying she should have done something to stop him from abusing Victoria.

Ms. Cowart will be sentenced after Mr. Smith's trial. A conviction of homicide by child abuse brings a possible sentence of 20 years to life imprisonment.

Until the third trial, Mr. Smith will remain free on bond. He lives in Augusta.

Reach Greg Rickabaugh at (803) 279-6895 or scbureau@augustachronicle.com.



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