Standby Lawyer Reflects on Daker Case

Treadaway & Treadaway Oct. 22, 2012

MARIETTA — “You sometimes wish you have a hook like on the old Vaudeville shows, or a trapdoor,” lawyer Jason Treadaway said, recalling the often frustrating experience of watching, as standby counsel, as a murder defendant represents himself in a three-week-long jury trial. “I wanted to just hook him and reel him back in. I was thinking, ‘Don’t go down this road, man.’”

The murder trial of Waseem Daker consumed much of September in Superior Court Judge Mary E. Staley’s courtroom. But for Treadaway and his law partner and father, Michael, who were appointed to the case less than a year ago, it enveloped much more time and energy. They started off as standby counsel, but on the eve of the scheduled trial start in February, Daker changed his mind and agreed to let the Treadaways represent him. The move won them a few additional months to prepare for trial. But when that came around Sept. 10, Daker was again insisting to Judge Staley that he be allowed to represent himself, and she relented after extensive questioning.

Jason Treadaway was ordered to remain on the case as standby, meaning he sat behind Daker in the first row of the courtroom to be available for consultation.

On Sept. 28, a jury convicted Daker of killing Karmen Smith, a 30-year-old Delta flight attendant who had never met Daker; wounding her son, Nick, age 5, by stabbing him 18 times; and stalking Smith’s upstairs housemate, Loretta Spencer Blatz. The crime happened in their home in a reasonably affluent subdivision not far from the busy intersection of Johnson Ferry and Roswell Roads. Karmen and Nick Smith were attacked Oct. 23, 1995, when Daker was just a teenager. He is now serving life plus 47 and a half years in prison.

This week, Jason Treadaway spoke with much candor about the case and its many complexities, from his Washington Street office.

“On February 17, 2012 at about 5 in the afternoon — I remember it like it was yesterday — after the last round of pretrial motions that day … Mr. Daker made it clear that he wanted my father and myself to be his lawyers; that he didn’t want to be his own lawyer. At that point, the trial was supposed to start Monday. Imagine you’ve read up and studied the case enough to be standby counsel, then imagine someone turning to you and saying ‘You’re going to try this case in 72 hours.’ That’s a completely untenable situation,” Treadaway said.

As the conversation goes on, the frustration is evident in his voice.

“This is probably the most complex case I’ll ever work on in my career,” he said. “You have a 15-year-old case, cracked by DNA but not by a CODIS hit, but literally by the detective staying on it, taking it to all these labs. … You have the fact that he was already convicted in 96 and had served all this time (on previous stalking charges related to Spencer Blatz). … Then you had Mr. Daker. Just having Mr. Daker for a client added complexities to the case.”

Waseem Daker and Jason Treadaway are only a year apart in age.

“Sometimes I felt sympathy for him, because he is my same age, and yet I’m a lawyer, I’ve got a great family, I get to do what I want to do, and here he is on trial for murder,” Treadaway said.

Unlike Daker, Treadaway grew up in Cobb. He attended North Cobb High school for one year — where interestingly enough one of his fellow runners on the track team was Jesse Evans, who would lead the prosecution of Daker — before moving to Harrison High School, where he graduated in 1994.

After undergraduate studies at the University of Georgia, Jason Treadaway earned his law degree at Georgia State University. He prosecuted misdemeanors in Cobb State Court for awhile, and now much of his time is spent in criminal defense work. He’s also fluent in Spanish. His wife, Susan, is an assistant district attorney here in Cobb.

After two days of jury selection, testimony began on Sept. 12. On that day, Daker persuaded Judge Staley that disagreements with his lawyers over the trial strategy left him no choice but to represent himself.

Key witnesses for the state included Nick Smith, who is now 22; Spencer Blatz, who had met Daker in 1994 playing paintball and is was more than a decade his senior; and Cobb Police Detective Brad McEntyre, who questioned Daker hours after the killing and took several hair samples from him, as well as scientists who had done DNA testing on hairs found on Karmen Smith’s body that were matched to Daker in 2009.

The defense brought in its own DNA expert, Dr. Greg Hampikian, of Boise State University, who questioned the handling of the evidence beginning at the crime scene. For Treadaway, a lot of his attention during the trial was on logistics, getting witnesses in from out of state and at the courthouse on time, and conferring with them. Daker couldn’t do any of that from the jail.

Daker’s trial strategy largely focused on proving he and Spencer Blatz had at one time been romantic, which infuriates Treadaway.

“The case isn’t even about that. No one cares. It’s not central to the case,” he said.

“If the case were all about her, they would have brought it in 1995,” he added later.

The following is an edited question-and-answer interview with Jason Treadaway.

Q. What was your theory of the case?

A. I thought the case was all about the science. There were two hairs that supposedly by DNA tests linked him to the murder scene. My theory of the case was to primarily attack the science and try to cast doubt on the evidence collection, the evidence preservation and the evidence examination. … Try to bring in Dr. Hampikian from Idaho to talk about everything that was done wrong in the collection of it the very day of the murder all the way to years and years later, all the people who had handled it had handled it possibly improperly. It had been transported all across the United States, possibly improperly. Been preserved, possibly improperly.

And some of it had been discarded. We know that some of the evidence was discarded in a very informal way. Detective McEntyre took a lot of the defendant’s body hairs and just threw them out in the Dumpster without any kind of chain of custody document or without any kind of quantification of how many hairs were there. If you have X

number of hairs and you’re trying to say that two hairs were found on the body of the decedent and they matched the defendant, then you need to know where all the other hairs are. If you know where all the other hairs are and you count those two from the body of the decedent, they better add up to X, right? That’s what Dr. Hampikian was saying. You have to be able to quantify and identify every single hair we’re dealing with in this case, and if you can’t do that, there’s a problem.

Dr. Hampikian said he would have to find the hairs were an inconclusive match, because there was no chain of custody going back to October 1995.

Q. Would the trial have lasted three weeks if you had represented him?

A. Sure. But the time would have been spent quite differently. I certainly would not have examined Ms. Spencer to the extent Mr. Daker did. He spent over a full day on her. I wouldn’t have done anywhere near that. Conversely, I would have examined Dr. Hampikian for much, much longer. I would have directly examined some of the other witnesses for much longer. I would have examined Nickolas Smith for a much shorter time than Mr. Daker did. Ultimately it would have balanced out.

Q. Daker, who was born in Toronto to Syrian parents, talked about going to Syria in 2008 and how a guilty person would not have come back to the United States.

A. That was part of my theory. Obviously the guilty person or the person who believed he narrowly got away with murder would not come back from the Middle East. He spoke fluent Arabic. He had family in the Middle East. Maybe he could have gotten citizenship there. … If he were able to gain citizenship, I imagine extradition would have been almost impossible. So I think a lot of people do wonder why he came back. Me included. But I’m sure if you asked him why he came back, he’d say because he’s not guilty.

Q. How many hours did you spend on this case?

A. Over 650 hours, that’s what I billed the county for. That’s me alone; that’s not my father. He probably had over 400 hours himself. It’s not cheap to defend people charged with these types of crimes. I don’t want to say what the bill was. … It was less than $100,000, but not way less. He was represented by public attorneys for what, 20 to 21 months. (After his arrest in 2010, Daker hired then fired a private attorney. Mr. Daker also fired previous court-appointed lawyers.)

There were almost 100 tapes, CDs, DVDs, and cassettes of evidence in this case. There were over 8,000 pages of print discover. This is a case that would take years to prepare for, really. This type of case, you really needed a lawyer on it from the very beginning and you needed to stay with that lawyer.

Q. How many times did you go to the jail?

A. Probably 30 times. Quite a lot. I went to see him almost every single day that the trial was going on, every day after testimony. I went to see him on Saturdays, on Sundays.

Q. Describe the Waseem Daker that you saw.

A. I just saw him as a regular person. I didn’t see a homicidal maniac. I didn’t see a psychopath, as Mr. Evans called him. … You don’t see a client like Mr. Daker every day, but I didn’t see a maniac. And really, I didn’t see an a—hole that everybody kept referring to. ‘This guy, he’s a jerk.’ I didn’t see that. I saw a man that I think was desperate, and I think that desperation caused him to want to represent himself a certain way. I think his psychological makeup forced him to want the case to go a certain way. When he found out I wasn’t going to present it that way, based on whatever it is about him that makes him him, that he was going to step in and take control of the case. I was in the same room with him alone at the jail for hours, no waist chains, no handcuffs. I guess he could have beaten me to a pulp if he wanted to. I didn’t see the side of him that everyone else imagined him to be.

But there were several times when I got into real heated verbal disagreements. There were times he was screaming at me and I was screaming back at him. There were times when I threw up my hands and I couldn’t understand why he could not seem to understand why I wanted to try the case a certain way.

Q. When you hear his name, what goes through your mind?

A. How much I wish things would have turned out differently for him. I think about all the subtleties that happened in his life that could have changed the outcome way back when. I have wondered, what if he’d never met Lottie Spencer Blatz? Would his life have been completely different? What would have happened if he just allowed me to represent him, rather than taking the course he did.

The thing that comes to my mind most is opportunities that he lost out on and things that could have been different, starting with when he met her. If he had never met her, certainly if you believe the jury’s verdict — certainly Karmen Smith would still be alive. There were so many minute changes and circumstances in his life, that if it had just worked out a little bit differently, maybe he could have been just like you and I, or maybe he would have killed somebody else. I don’t know. I’ve thought a lot about that. If he’d not decided to represent himself. If he’d stayed in Syria. If I think about him, I’d just like to unlock a lot of what his thought process is. What thought processes he goes through when he makes these decisions. There’s a lot of unanswered questions that I have.

Q. What was he whispering to you about during the trial?

A. I can’t get into the specifics of it, but generally a lot about procedure. If the judge made an adverse ruling, he might ask ways to get around it, alternate ways to try to get the evidence in, material accepted. … In this case, the most important was to do two things: Refresh a witness’s recollection and to impeach a witness. One, it’s an old case, so people aren’t going to be able to remember things from back then. Two, a lot of the witnesses had given sworn testimony under oath in 1996, so if they said anything different you would have to impeach them and bring out to the jury that they said something different. Those are difficult skills for lawyers to master, and for a non-lawyer it can be very difficult. For Mr. Daker, what I saw at times was that it was impossible, because he didn’t do it right. Objections were repeatedly sustained. And a lot of times, he was unable to get evidence that was critical to his defense, he was unable to get it in because he couldn’t overcome the objections.

Q. One point a witness was speaking and the judge stopped them and said not to answer it, and then Mr. Daker asked ‘what were you going to say?’

A. Things like that I would see happen and it would make me cringe. I would think, ‘Mr. Daker, I really wish you would not do things like that in front of the jury.’

If a lawyer does that in front of a jury, I don’t think people necessarily take that out on your client, because maybe they think that’s your job. But when it’s him doing it, they’re going to hold him accountable! At one point we had taken a break and a motion was heard outside the jury, then the very first question he asked after the break was in conflict with what the court had just ruled on. Jesse Evans stood up and said, ‘Judge, you just ruled on that.’ …

The jury is listening to that and that’s not endearing Mr. Daker to the jury at all. They’re thinking, ‘He’s not following the court’s ruling? We have to follow the court’s ruling. The judge tells us what to do and we have to do it. Why isn’t he? What’s he trying to pull here?’

That’s why you really need a lawyer to be the intermediary, because if not, it’s too easy for the jury to see your court demeanor and extrapolate that back to your 1995 demeanor and what the allegations are against you in the case. Is the person I’m seeing up here defend themselves, is that the psyche, is that the personality of somebody who could have done this? It’s impossible for the jury to separate that.

Q. Were you surprised the jury found him guilty in less than 4 hours?

A. Yeah. I was real surprised. Even if there’s a very quick vote and everybody votes guilty, it seems like it would take more time than that to go through all the counts, the statute of limitations and make sure that had not been violated on each of the counts where it applied. The government had almost 250 exhibits. …

I thought it would’ve taken a couple days to sort it all out. … It seems like there’d be some discussion about the evidence or how everyone arrived at their verdict individually. Maybe that did occur; I don’t know. We’ll never know.

And as a lawyer, you work all summer on this case, day in and day out, and then it comes down to three and a half hours of deliberations. That is a little surprising. I’m not saying it invalidates the verdict or casts any doubt on their verdict. It’s just surprising to me that a layperson could grapple with all those issues in that amount of time.

Q. Were you surprised some of the jurors were so emotional?

A. Not really. I don’t think their personal grapple with this case ends with their verdict. They’ll probably think about it for a long time. I have a 5-year-old boy, and I think a lot about that when I think about that boy being stabbed. For about two weeks after the verdict, every single night I would dream about Mr. Daker. Every night. I’m not kidding. I couldn’t get it out of my mind, even after the verdict. Every night. Or, I’d wake up at 4 in the morning and think about something he’d said to me. It just, it will affect you that way. I think the jury’s probably going to remember it for a long time.

Q. Was Mr. Daker surprised by the verdict, or the maximum sentence?

A. No, I don’t think so.

Q. Why were no Daker relatives at the sentencing?

A. My feeling on sentencing is that, I’ve seen a lot of times where family members give emotional testimony at sentencing about why the maximum sentence should not be imposed for their loved one, and the maximum sentence gets imposed anyway. And I’ve seen a lot of family members take that personally, and live with that afterward and

wonder, what did I do wrong or say wrong, that caused my family member to get the maximum sentence? On this case, I felt like the gruesome nature of the crime, the horrible, terrible nature of it, was going to cause the judge to sentence him to the maximum punishment, and I didn’t want his family to be in that stance where they may later wonder what they could have done where he would not get the maximum sentence. I shared my experience with him, for whatever it’s worth.

Q. Do you think he regrets acting as his own lawyer?

A. I know he regrets the outcome, but he had a vision of how it should go. He probably did the best he could. I think he’s satisfied with the job he did, but he’s unhappy with the verdict. I don’t think he regrets representing himself. He’d probably do it again.

He has to live with the decision to represent himself for the rest of his life. I went down a few weeks ago and saw him in prison, to tie up loose ends. He’s in 23-hour a day solitary lockdown, they say because of the notoreity of his case, and he’ll probably be in that for 18 to 24 months. Twenty-three hours a day, he is in his cell, alone, no television, nobody to talk to. For one hour a day he goes outside in a fenced yard and walks around.

I’m not telling you about his 23 hour-a-day lockdown status because I think it’s unfair. There are certainly those who would say that he is at least alive and did not have to endure what Karmen Smith did. I’m just telling you about his life in prison to make people understand that he is certainly facing the very punitive nature of the criminal justice system now. It’s not like a country club life that he went off to — it’s more like hell on Earth — an animal in a cage.

Written by Kim Isaza The Marietta Daily JournalPhoto by Emily Barnes