VOL. 122 | NO. 148 | Wednesday, August 8, 2007
Smart Represents Himself, Claims He's Broke
By Bill Dries
Forest Hill cemeteries and funeral homes owner Clayton Smart will act as his own attorney – at least for the time being.
Criminal Court Judge W. Otis Higgs made the ruling Wednesday at the end of another hearing in which Smart repeatedly claimed he didn't have any money to hire an attorney.
Smart, of Morris, Okla., as well as Forest Hill co-owner Stephen Smith and former Smith Barney broker Mark Singer, were indicted in April by a Shelby County grand jury on conspiracy, theft and money laundering charges for not honoring thousands of pre-paid burial contracts. That followed a Chancery Court lawsuit to freeze assets and appoint a receiver to run the cemeteries and funeral homes.
Smart is due in Chancery Court Thursday morning as the receiver Max Shelton attempts to track down money from the Forest Hill trust funds. Smart is expected to be asked to list his assets.
The hearing before Higgs was a continuation of an Aug. 3 hearing that also focused on who will represent Smart in the criminal proceedings. At the earlier hearing, Smart's private attorney withdrew and public defender Robert Jones told Higgs the case was too complex and expensive for his office to undertake.
Smart maintained his position that he has no money to hire an attorney.
Prosecutors came to Wednesday's hearing with recordings of telephone calls they say Smart recently made from the Shelby County jail to his wife. On the recordings, Smart instructed his wife to sell off property to provide him with money, said Deputy State District Attorney Steve Crossnoe.
"He has more than ample assets," Crossnoe told Higgs.
Crossnoe also alleged that Smart has hidden assets in a trust fund under another name in case Smart is indicted in Oklahoma on federal criminal charges.
Prosecutors also submitted an affidavit from Forest Hill receiver Max Shelton outlining recovered assets totaling $15 million.
And prosecutors say they've been contacted by an attorney Smart's family is trying to hire. They didn't identify the attorney. Smart later denied knowing anything about the attorney or the effort to hire him.
Jones and his staff conferred privately with Smart, listening to the recordings as well as examining the affidavit.
"My position is he's not indigent. He's got $15 million," Jones told Higgs when they emerged from the conference. While state officials contend the amount represents "ill-gotten gains," Jones told Higgs the state hasn't proven that.
By then Smart already had told Higgs several times, "I'll just have to represent myself. I don't have any money."
Higgs stopped Smart, saying he wanted Smart to make all statements under oath.
"I know I'm innocent. I know more about this case than the state of Tennessee ..." Smart told Higgs under oath. "I know I can take the paperwork and prove them wrong."
Smart then made what could be a crucial statement in the criminal and civil cases.
"The money being held," he said referring to the trust fund money recovered and being held by the receiver, "is not mine."
At that point, Higgs stopped Smart and said he was concerned that Smart was incriminating himself. Higgs also noted that prosecutors were smiling broadly at Smart's unprompted remark.
"He relinquished $15 million in the blink of an eye," Higgs said to Jones before asking Smart, "Do you know what you've said?"
"Yes sir, but it's not my money," Smart replied.
Higgs discharged Jones and his office as acting legal counsel for Smart. At the next criminal court hearing on Sept. 5, Higgs said he might appoint "elbow counsel" to advise Smart if Smart's family hasn't hired counsel.
"I don't want to make a career of this case," Higgs remarked.
Smart never answered Higgs’ direct question, "Do you want me to appoint an attorney to represent you?"
At the end of the hearing, Smart also refused to sign a waiver indicating he would represent himself.