Conspiracy between Killers Fails

by Diane Fanning

Last week, the West Virginia Supreme Court denied the appeal of Dana December Smith. He'd been convicted in 1992 of two counts of felony murder. The jury did not recommend mercy which in the state of West Virginia was the equivalent of life without parole.

He was accused of a brutal homicide. In September 1991, Pamela Castaneda, 36, was sexually assaulted and stabbed seventeen times in her blue cinder block home in Leewood, West Virginia. Her disabled mother, 63-year-old Margaret McClain was stabbed fourteen times. Both women were found naked from the waist down.

When Smith learned he was a suspect, he hid out in the woods for four days until law enforcement tracked him down and took him into custody. It was the twenty-fourth arrest for the 25-year-old Smith.

He was not a model prisoner. He hit guards, jerked off their ties, tore their shirts, pelted them with apples and spit at them. Prosecutor Bill Forbes said, "This is the most cold-blooded killer I have seen."

Smith did not disappoint when allowed to read a statement before sentencing. He said he had no remorse and told the state's attorney, "You better pray I never get out of prison. You can take that as a threat."

The evidence at trial included the discovery of Smith's DNA at the crime scene and t-shirt found in Smith's possession that was splattered with Pamela's blood.

Unfortunately, that evidence was analyzed by Fred Zain(right), a man who worked as a Forensic Serology expert in West Virginia and Texas.

DNA analysis cleared a West Virginia prisoner in another case where Zain had testified that his "blood was identical" to that recovered from a rape victim. A forensic review of an additional fourteen randomly selected cases found something wrong in each and every one. Zain had testified about blood at a crime scene when no blood had been found there. He claimed to have conducted tests that were beyond the capability of his lab.

In 1993, the West Virginia Supreme Court discredited Zain's work saying "any testimonial or documentary evidence offered by Zain at any time in any criminal prosecution should be deemed invalid, unreliable and inadmissible."

Texas looked into his work, too. In August of 1994, Zain surrendered in Hondo, Texas on charges of aggravated perjury, evidence tampering and fabrication. Zain testified falsely in hundreds of cases--at least six individuals were wrongfully incarcerated because of his testimony. Although indicted, Zain died before he could be prosecuted.

It was just the opening Smith's attorneys needed. They wanted to retest the DNA evidence. But since the entire sample had been expended in the original analysis, attorneys appealed but that went nowhere. There was too much other evidence of his guilt, including his own admission, that he had stolen the victims' car.

Then, along came Tommy Lynn Sells(left). In the middle of the confessions after his arrest on capital murder charges in January 2000, Sells got irritated with his interrogators and decided to "jerk their chain." He told them about a dream he had about the Castaneda-McLain homicides. In reality, he was only regurgitating what he remembered hearing from Smith when they were on the same cell block in a West Virginia penitentiary.

That case wound on a list of previous crimes the prosecuting attorney submitted to court when Sells went to trial in September, 2000--even though the Texas Rangers had already concluded that the confession was not valid.

I had my first interview with Sells in 2001. From the start, he claimed that it wasn't his crime. He said he was repulsed by the sexual molestation of an older, disabled woman. "The right person is in jail for that one. Smith is a useless piece of crap."

After considering what Sells had to say and professional opinion of the Texas Rangers, I believed Sells was not responsible for that double homicide and did not include it in the original edition of THROUGH THE WINDOW.

When I was contacted by Wendy Campbell in the Public Defender's office, I agreed to ask him about the case again but he'd always told me that it was not his crime. To my surprise, this time Sells said he did do it and he was eager to speak with the female attorney. Neither Campbell nor I knew about the letter from Indiana written on behalf of Dana December Smith. The writer urged Sells to claim responsibility for the murders--since he was already sitting on death row, it wouldn't make any difference to him. Was Sells promised anything in exchange for his false confession? Probably. But Sells is not talking.

That confession landed me in West Virginia court on a cold, snowy day in January 2006. I testified at a hearing before the judge considering Smith's appeal. I did it for the victims' family members. They were terrified that Smith would get out of prison. I couldn't remain silent and allow the lie of Sells' confession make that happen.

The next month, Sells recanted. For the court, his denial was not necessary. There were several serious errors in his account of the crime. For example, he mentioned a brown couch with a black afghan in the MacLain/Castaneda home. In the evidence submitted at trial, the photograph was there, just as Sells described it--but the snapshot was taken in someone else's home and not present at the crime scene. Someone had fed him the information he needed to make a plausible confession but not enough details to ensure credibility.

Smith's state appeals are now exhausted. Of course, there is always recourse to the federal judiciary. For the sake of the victims' family, I hope that avenue is not pursued.

Dana December Smith belongs behind bars. I hope he stays there.

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