On June 20, 1974, New York City Police Lieutenant Henry Schmiemann left his house in Middle Village to go to work at NYPD headquarters in Manhattan. As he left, he was approached by John Smith, a career criminal who had been released the day before on $1000 bail on a menacing charge. Smith pointed a pistol at Schmiemann and tried to rob him. Schmiemann drew his service revolver and fired one shot, which hit the hulking Smith in the left chest. The bullet lodged just under the skin. Smith fired his revolver, striking Schmiemann in the head, killing him instantly.

Two hours after the murder, John Smith checked himself into Wyckoff Hospital in Brooklyn, claiming he had been shot by someone who had tried to rob him. X-rays taken later at Kings County Hospital confirmed the presence of a bullet in Smith’s body but were insufficient to show the caliber or type of bullet. Smith refused to have the bullet removed and hospital doctors claimed removal was not medically necessary.
A lengthy legal battle ensued when the Queens District Attorney’s Office moved to have the bullet surgically removed from Smith’s body. The DA wanted to have microscopic analysis done on the bullet to see if it had been fired from Lt. Schmiemann’s gun. After a months-long legal battle, the court refused to allow surgery to remove the bullet, ruling that it would be an unreasonable intrusion into Smith’s body and was not medically necessary.

Smith ultimately went to trial in 1976. When the trial began, Smith chose to remain mute and not offer a defense, claiming that every individual in Queens County had been “hypnotized by the Queens County District Attorney’s Office.” The trial judge, over Smith’s objections, ordered his court-assigned

The first thing we had to do was to locate the witnesses…
In all, there were 23 witnesses who testified at the second trial.

attorney to conduct a trial defense of Smith during the trial, which he did, mounting a vigorous defense and cross examining the People’s witnesses. Barry Schwartz, the assistant district attorney who tried the 1976 case, described Smith as appearing in a bathrobe during the trial and glaring at the jury. Smith was convicted of murder and sentenced to 25 years to life.

In 1986, the New York State Court of Appeals, in a 4-3 decision, reversed Smith’s conviction on the grounds that he had the right to stand mute during the trial and offer no defense so long as he had made that decision intelligently. Because the trial judge had not inquired into Smith’s reasons for making his decision, the court set aside his conviction and sent the case back for re-trial.

When the case came back for re-trial, it was assigned to me. This case had been tried in 1976 before I became an ADA. Barry Schwartz, the original trial assistant, was my first bureau chief when I joined the office in 1977 and was able to fill me in on many of the details of the case.

The first thing we had to do was to locate the witnesses. The only eyewitness we had to the actual murder was a 13-year-old paperboy, who, by the time of the re-trial, was 25, lived in California and worked as a civilian employee for the Air Force. He flew in to testify. One retired police officer who wouldn’t fly, took a 20-hour train trip from Florida to testify that when he went to loosen Smith’s cuffs while he was being treated at the hospital, Smith told him to “watch it” or he’d “shoot him in the head like the other cracker.” Smith’s sister, who had testified at the first trial, had died shortly after that trial. But her testimony from that trial was read into evidence at the second trial. Smith had called her while he was at the hospital and told her he had shot somebody and told her to get rid of the gun. In all, there were 23 witnesses who testified at the second trial.

But the case had yet another twist. The bullet was still lodged in Smith’s shoulder. You could actually see the bulge, as his body had been pushing the bullet to the surface for 12 years. Because of the advances in medical technology, we sought a court order to have an MRI done of Smith’s shoulder to get a clearer picture of the bullet in an attempt to determine the size and possibly the caliber of the bullet in his body. The trial judge, the legendary John J. Leahy, after hearing legal argument, ordered that John Smith undergo a non-invasive MRI examination of his left shoulder. I arranged for detectives from the Queens DA’s Detective Squad to transport Smith to the hospital for the pre-arranged MRI. When the detectives took him to the hospital, and attempted to have him submit to the MRI, he resisted. The doctors told us that he would have to remain absolutely still for the MRI. When the detectives tried to have him submit, Smith who was 6’4” and 260 pounds, told them there was no way they were going to put him in the chamber for the MRI. Because we feared for the safety of the medical staff and our detectives, as well as concern over the damage Smith could do to the hospital’s MRI machine, we canceled the procedure. BUT the fact that he resisted this non-invasive, court-ordered examination was admitted at trial as consciousness of guilt. In other words, we were able to argue that he had refused to submit to the court-ordered exam because he knew it would provide evidence of his guilt.

When the trial began, Smith asked to represent himself. Judge Leahy asked the proper questions of Smith and allowed him to represent himself, but also appointed his prior trial counsel to sit in the front row of the courtroom, acting as his legal advisor. Smith cross-examined witnesses and at the conclusion of evidence, gave a rambling, hours long summation, attacking everybody and the system. He was convicted of murder, yet again. Because Smith was such a menace while serving in prison, we were able to get his prison disciplinary records and show the court what a danger he was to society. The court then, in addition to the sentence of 25 to life for the murder, was able to add several more years to his sentence for the attempted robbery.
The wheels of justice grind slowly sometimes, but in this case, justice was ultimately done. So far, the parole board has denied every application by Smith for parole. Hopefully, they will continue to do so for the rest of his life.