Opinion: Smiths are Not Guilty

My readers and my long-time followers on Twitter know it’s exceedingly rare for me to express my opinion publicly. I avoid it at all costs. I prefer to build stories constructed of facts and sourced quotes. However, when covering a story for some time and digging into details some reporters perhaps don’t have time for, I find my readers begin to question what it is I think of my own reports. At times, my readers want to know my opinion.

And what my readers want, my readers get.

So let’s take a look at the Smith case and what Yours Truly actually thinks, shall we? I have written eight, long-form articles on the charges against David and Travis Shane Smith. I’ve combed through the DA’s evidence, interviewed the witnesses, and spent more time on the phone with the defense team than I’m sure they would have preferred. In the end, while you won’t see me comment on either defendants’ innocence, I am comfortable stating neither will be found guilty on the most serious charges. Why?

Let’s start with the 911 call Travis Shane made. While I will be writing more about this soon (and releasing the recording itself), the 911 call is a powerful piece of evidence. In it, Travis Shane speaks in a calm, focused tone and does everything he can to guide emergency services to the location of the fire. It seems far-fetched to believe he would spend so much time contacting the authorities if he were guilty of reckless arson. In fact, it appears law enforcement would never have investigated him in the first place without this phone call. He could have just as easily left the area quietly. That said, I know this is conjecture. Let’s look at some other aspects of the case.

A couple days after the fire, the Smiths received phone calls from investigators regarding their alleged involvement in the Caldor Fire. They cooperated. They didn’t hire an attorney. Two days later they were questioned again. They still cooperated. Still without a lawyer present. Eight days after the fire the Smiths’ homes were raided and their phones searched. It wasn’t until two days after this that they decided to contact an attorney. To me, this doesn’t suggest the behavior of a nervous criminal. Again, this is still conjecture and at this point you may be eager for me to reflect on the actual evidence we have reviewed.

The DNA means nothing. I know this may be hard to hear for some, but the earplugs with Shane’s (possible) DNA found “in the vicinity of” the start of the fire isn’t exactly a smoking gun (no pun intended). The defense team is not denying David or Shane was there in the first place. In other words, the DA is saying, look at these earplugs! Travis Shane Smith was right here! And the defense is saying, yea, we know. The DNA is moot.

Some may argue that, because the earplugs were found near shell casings, the shell casings must be the Smiths’. There are a couple of issues here. First, in searching through archives of public notices from the Eldorado National Forest, there was no target shooting ban posted. This means any shell casings found suggest the crime of littering, and nothing more. Second, even littering may not be proven unless fingerprints are found on those casings, and we have no indication this is the case.

Let’s look at what the witnesses have described in their statements. One witness said there was nothing out of the ordinary when first coming across David and Shane driving their side-by-side dune buggy down towards Dogtown Creek. When the witness saw the two men later, they stated the Smiths warned them to leave the area because they had spotted a fire down in the ravine.

Two other witnesses described the Smiths as driving “too fast” down into that same Ravine. They also heard pistol shots nearby after the Smiths drove past. However, driving “too fast” in a side-by-side is hardly suggestive of reckless arson. In terms of the pistol shots, the witnesses heard gunfire all over the area in the days leading up to the start of the fire. In fact, another witness whose property is next to the area describes collecting “hundreds or even thousands” of shells whenever he hikes down into that ravine.

Remember, none of the witnesses saw either Smith firing a gun. None saw the men standing around or cooking over a campfire. None saw sparks being thrown by the side-by-side the Smiths were driving. None saw either of them smoking. In short, there is no direct witness to reckless arson.

Meanwhile, all of the witnesses describe several others as also being in the immediate area of where the fire started. There were homeless people who, by their own admission, had been living in the area for weeks. All had campfire rings and all had to cook, somehow. Does this mean I believe one of these individuals started the fire? No. But does it suggest they were just as likely, or more likely, than the Smiths to have started the fire? Perhaps. And let’s not forget the hikers, dune buggy drivers, and juveniles the witnesses also describe as seeing in the days and hours leading up to the fire.

Now, I can’t say for certain the DA doesn’t have more evidence I haven’t been able to get my hands on yet. That said, I do believe if there was a witness or piece of evidence particularly convincing, even one, it would have been brought out at the bail hearing. Instead, the judge clearly viewed the DA’s argument as unconvincing and lowered the bail from $1 million to $25,000 for David and $50,000 for Shane. It’s a shocking reduction by any standard.

So, we have DNA evidence that means little. We have witnesses that saw little. We have nothing tying either Smith to starting the fire. And we can reasonably assume anything brought forth by the DA from this point forward will be less than damning.

Taking all of this into account, I can’t imagine any reasonable jury convicting either Smith on any of the reckless arson charges. Of course, I am not commenting on whether the Smiths are innocent, though perhaps further along in this case I will share my opinion on that as well. And there are also the modified gun charges. Considering those weapons were found in the course of the subsequent investigation I would imagine the DA is much more confident with these particular charges

All told, it seems clear to me that, if the DA can even get the reckless arson charges to trial, David and Travis Smith will be found not guilty.

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