By DAVID McLELLAN
Recorder Staff
GREENFIELD — The trial for a 2016 Orange double homicide could start today, or Monday — or even later. It depends on one thing: if the court can find one final juror.
Brittany Smith, 29, of Athol, is accused of murdering Thomas Harty, 95, and fatally wounding his 77-year-old wife, Joanna Fisher, during an Oct. 5, 2016, invasion of the couple’s Orange home.
Her co-defendant, Joshua Hart, 25, of Athol, has already been found guilty of murder in the first degree, and faces a mandatory minimum sentence of life imprisonment without the possibility of parole.
Smith’s Superior Court trial, however, has yet to begin. While it was expected to start Thursday it has been difficult for the court to find prospective jurors who have not read too much about the case or have not formed an opinion about the defendant’s guilt.
Out of 130 people interviewed over three days, only 13 jurors have been selected. Another jury pool is being brought in today to the Franklin County Justice Center and the trial will begin if someone is selected.
“We will come in here, we will impanel one juror, as soon as the juror is impaneled we will start the trial,” Judge John Agostini told the defense and prosecution.
A problem may arise if the defense or prosecution uses all of their peremptory challenges — each side has 16 challenges they may use to eliminate a potential juror from the selection process, even if the court has approved of the potential juror.
“The challenge is the commonwealth has nine left, the defense has four left,” Agostini said. “We could exhaust the pool (of jurors), particularly if the parties wish to exhaust their challenges.”
Defense attorney Mary Ann Stamm indicated that she may choose to use the rest of her challenges.
“When I came into the system, defense attorneys always exhausted their challenges,” Agostini said. “I don’t know why.”
If a juror is selected today, but too late in the day to begin the trial, proceedings will begin Monday. If no juror is selected, the court will readdress how to proceed.
Prosecuting attorney and Assistant District Attorney Jeremy Bucci was optimistic that a juror could be found and impaneled today, and said the selection has gone at a steady pace.
Only one of the five jurors selected Thursday had not heard anything about the case, the others had heard about it, but said they hadn’t formed any opinions about the defendant’s guilt or innocence.
But those who have followed the case closely were virtually unanimous in thinking Smith is guilty.
During Hart’s trial, much evidence was presented that could be seen as indicating Smith’s involvement in the murders, which the prosecution says were a “joint venture.”
Smith’s fingerprints were found at the crime scene, her own relatives indicated she was with Hart that night, her DNA was found on sweatpants in a bag that also contained clothes with Harty’s blood on them.
Also, when Smith and Hart were apprehended in Rockbridge County, Va., they each gave two interviews to police which were audio recorded. Both of them confessed to their involvement.
Even Hart’s defense attorney said Smith committed the murders, arguing in the trial that Hart only helped her steal and “clean up.”
Other potential jurors inferred that Smith is guilty simply because Hart was convicted unanimously, and on all counts, by a 12-person jury.
Reach David McLellan
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