THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, July 15, 1996 TAG: 9607150036
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: 71 lines
Lawyers for Thomas E. Smolka will be back in court today, nearly a year after a Florida appeals court cleared the Virginia Beach attorney and developer of killing his wife.
This time, Smolka will try to collect his wife's $250,000 life insurance.
His wife's parents will be there to oppose him.
The hearing in federal court in Norfolk will test the question: Is a new trial necessary to determine whether Smolka should collect his wife's insurance? Or is it enough that an appeals court overturned Smolka's jury conviction for murder?
Until now, nearly all court action about Betty Anne Smolka's death was in Florida, where she was killed, even though the couple lived in Virginia Beach. With this case, and one other pending case, the focus shifts to federal court in Norfolk.
Betty Anne Smolka was found shot to death near a shopping center in Ocala, Fla., in July 1991. A Florida jury convicted her husband of murder in March 1993. A Florida appeals court overturned that conviction last August, saying there was not enough evidence to support the jury's verdict.
The insurance case arose in 1993, a few months after Smolka's conviction. At that time, the New York Life Insurance Co. asked the court to decide who should get Betty Anne's money, and placed the $250,000 in trust.
Now Smolka's local attorneys - Richard Brydges and Stephen Mahan - argue that the appeals court's acquittal gives Smolka the right to collect the insurance money without a civil trial. They have asked a federal judge to grant summary judgment.
They are opposed by Betty Anne's father, Willis W. Stephenson, a retired Virginia Beach banker who is raising the Smolkas' three children.
His attorneys - Glenn Croshaw and James Lewis - argue that a new trial should be held so they can prove that Smolka killed his wife and should not get the money. They say the money should go to Smolka's three children.
In a sense, the legal fight does not involve Smolka directly. Even if he wins, he cannot keep the money. Smolka has assigned his right to the insurance to his brother-in-law, William Whipple of Delaware, who paid for Smolka's legal bills during the Florida trial.
The judge may rule today, or he could withhold judgment.
No matter how the judge rules, one more case involving Betty Anne's slaying will remain: a civil lawsuit filed by Stephenson against Smolka, accusing him of causing Betty Anne's ``wrongful death.'' It demands $10 million. That case is scheduled for trial Dec. 9, also in federal court in Norfolk.
A new trial in Norfolk could be a virtual replay of Smolka's original trial in Florida, with most of the same 70 witnesses.
The burden of proof, however, would be very different. In a criminal trial, charges must be proved ``beyond a reasonable doubt.'' In a civil trial, they must be proved only ``by a preponderance of the evidence'' - more evidence showing guilt than innocence.
The burden of proof was a problem in Smolka's criminal trial. The jury believed guilt was proved ``beyond a reasonable doubt,'' but the appeals court said it was not.
``There is no doubt that the state's case against Smolka creates a strong suspicion that he murdered his wife,'' the appeals court wrote. ``The number of suspicious circumstances is especially troubling. But suspicions cannot be the basis of a criminal conviction.''
In the insurance case, Smolka's legal brief claims that ``there is no substantial evidence that Smolka murdered his wife.''
Virginia law says a killer cannot profit from his crime, and Stephenson's attorneys argue this applies to Smolka. Brydges, however, argues that Smolka cannot be a ``slayer'' under Virginia law because he has been criminally acquitted.
Today's hearing is set for 2:30 p.m. in U.S. District Court. ILLUSTRATION: Photo
Thomas E. Smolka: convicted, then cleared, of killing his wife.
KEYWORDS: MURDER CONVICTION LIFE INSURANCE THOMAS E. SMOLKA by CNB