Moral Turpitude Found In Criminal Conviction

The California State Bar Court Review Department recommended disbarment based on the circumstances surrounding a felony conviction.

The attorney has 

suffered from alcoholism and had engaged in multiple assaults…

At the disciplinary trial, Smart admitted that he is an alcoholic and that, while being under the influence of alcohol, he has “made the worst judgments I’ve ever made in my life.”

The conviction is described in the report

In January 2015, Smart traveled to California to try a case and stayed with [his brother] John. On the night of January 16, he drank approximately 14-21 glasses of wine (around four bottles) between 5:30 p.m. and midnight. At some point after 11:00 p.m., he called a massage service that he used about every two to three weeks. That night, he secured the services of Sherri Kench. Upon arriving at the Lake Forest residence with her driver and security guard, Joshua Reagan,  Kench was greeted at the front door by Smart, whom she later described to police as not sober. Smart advised Kench to be quiet since John was sleeping. She was concerned about Smart’s inebriated state and the fact that an unknown third person was in the residence, but she followed him to an upstairs bedroom where he handed her $220 in cash. Kench then took the money downstairs and gave it to Reagan who was waiting outside by the front door. She deliberately left the front door unlocked before returning upstairs to Smart’s bedroom where she intended to dance for him.

What happened next is sharply disputed. According to Kench’s and Reagan’s statements to the police, Smart undressed and wanted sex. She refused and explained that she was there only to dance for him. Smart then grabbed her, threw her on the bed, and got on top of her. Fearing sexual assault, she screamed out to Reagan for help. Hearing her screams, Reagan began pounding on the front door. When Kench continued to scream, Reagan pounded on the front door again. Smart then ran downstairs naked, opened the front door, and attacked Reagan, yelling that he was going to kill him. A violent fight ensued.

At trial, Smart denied that he asked for sex or touched Kench. According to Smart, he said something like, “You’re not the lady in the picture” to Kench, which he says offended her. She then told Smart that she wanted to leave. He replied, “Fine, but give me my money back.” Kench then told him she would text her driver saying that he was assaulting her. Smart claims that he then feared someone would break into the house in response to her text, so he ran down the stairs toward the front door. When Smart was about six feet from the door, Reagan came charging in, spraying him with pepper spray, and running toward the bottom of the stairs. According to Smart, he tackled Reagan because he believed that he and his brother were in danger.

Kench viewed the fight from the upstairs landing where she was joined by John, who had been awakened by Smart’s yelling that Kench and Reagan were going to rob him. Kench told John they were not there to rob anyone, Reagan was her security, and they wanted to leave. She described John’s look as dumbfounded. During the altercation, Smart, a third-degree black belt in martial arts, placed Reagan in a “body-triangle,” immobilizing him. He also held Reagan in a chokehold that caused him to go in and out of consciousness. While Reagan was struggling to breathe, Smart attempted to gouge out one of Reagan’s eyes. Smart told John, “This guy is going to kill me,” and instructed him to get his gun and call 911, which John did. Meanwhile, Kench descended the stairs, climbed over the two combatants, exited out the front door, and also called 911.

The 911 calls were admitted into evidence at the bar hearing

When Kench and Reagan ran from the house, Smart followed and fired the gun once from the front yard. When the police arrived, they were met by John and Smart standing in the front yard. Smart was completely naked, had a bloody face, was covered with pepper spray, and was moaning in pain. Upon being questioned, John told the officers that the gun was in his garage. Both brothers acknowledged that Smart had fired it, and Smart reported to the investigating officer that he had fired the weapon into the ground. He later claimed that he shot the gun to “scare” Reagan and Kench and to teach them that “something bad could have happened” to them. An extensive police search of the front lawn failed to reveal where the weapon had actually been discharged.

Smart later passed out and was taken to the hospital. He was interviewed there by a deputy sheriff who believed that Smart was a victim of a home-invasion robbery based on information he and John had given to the 911 operator. Smart asked the deputy, “Did you see who beat me up and sprayed my balls [with pepper spray]?” When asked by the deputy if he wanted to prosecute the matter, Smart replied, “Of course.” In response to a request for a description of the assailant suspects, Smart replied, “I don’t talk to you motherf—ers. You can talk to my lawyer.” When the deputy explained that the department could only assist him as a victim if he provided a detailed statement, he displayed his middle finger and said, “F— you.”

A police investigator who also interviewed Smart testified that he was defiant, angry, and uncooperative. The investigator further testified that he interviewed Kench and Reagan separately twice. He found Kench to be fairly credible, though she did not tell the whole truth during her initial interview, and he found Reagan to be forthcoming and his story consistent.

He was charged with six felonies

Smart initially pleaded not guilty to all six felony counts, but later he pleaded guilty to two of them: assault likely to produce great bodily injury and discharging a firearm with gross negligence. The remaining four counts and the two enhancements were dismissed. Smart was sentenced to three years of probation and 10 days in county jail with credit for five days served and five days’ good conduct.

In the bar proceeding

Neither Reagan nor Kench testified during the disciplinary trial. However, as noted by the hearing judge, both Reagan’s and Kench’s recollection of the events were detailed in the Orange County Sheriff Department’s crime reports—which were admitted into evidence at the disciplinary trial without objection or limitation.

As to firing the gun

Here, Smart did not act in good faith when discharging his brother’s gun, which distinguishes Burns and renders it unnecessary to apply its conclusion to the facts in this matter. We find that Smart’s gratuitous firing of the gun was excessive, dangerous, and disproportional to any plausible threat. Smart concedes that Kench and Reagan were out of his sight when he shot the gun, proving that he could not have honestly believed he was in imminent danger to justify firing the handgun. We find that Smart’s firing of the weapon in the front yard of a residential neighborhood ostensibly to scare Kench and Reagan was reckless and extremely dangerous not only to them, but to others in the neighborhood as well. The fact that the stray bullet traveled through a neighbor’s garage door into the garage is evidence of how dangerous Smart’s action was; it could have caused serious injury or worse had the piece of wood not stopped the bullet. Thus, we find that Smart’s behavior exhibited contempt for the law and disregard of the safety of others, which demonstrates moral turpitude.

Sanction recommendation

While Smart established much mitigation for good character, cooperation, and several years of a discipline-free career prior to his convictions, without aggravation, those factors fail to constitute the most compelling, as required by former standard 2.15(b), in light of the seriousness of his criminal misconduct. Notably, we find that Smart’s rehabilitation is in its early phase; he has not presented persuasive evidence that he is truly on the path to full sobriety and that he fully understands the extent of his alcohol problem. For the same reason, Smart’s misconduct is not mitigated by his mental disabilities and emotional problems. Based on the facts of this case, we conclude that anything less than disbarment would fail to protect the public and the courts, and would undermine the confidence in the legal profession that our high standards are meant to
maintain. Accordingly, Smart should be required to demonstrate by clear and convincing evidence in a reinstatement proceeding that he is fully rehabilitated over an extended period of time before he is entitled to resume practicing law.

The recommendation concludes that the crime involved moral turpitude. (Mike Frisch)