The Juror and the Convict

Lynne Harriton was the jury foreman at Andre Smith's trial in the Carnegie Deli murder case. Now she's his closest friend.

In the days after the trial ended, Lynne Harriton could not stop thinking about the man she'd convicted of murder. Her cheeks had been wet with tears when she announced the verdict in court on June 18, 2002. Afterward, she had returned to her job teaching English at a public high school, but in her mind the trial would not end. She kept replaying scenes from it, and worrying about the fate of the young man she had found guilty.

One year earlier, the crime had been front-page news, dubbed the "Carnegie Deli Massacre" by the tabloids. On the evening of May 10, 2001, two men had visited Jennifer Stahl, a former actress who sold marijuana from her apartment above the Carnegie Deli. By the time they walked out, Jennifer had a bullet hole in her forehead. Four friends of hers lay on the living room carpet, facedown, wrists and ankles bound with duct tape, each shot once in the back of the head. Two survived; Jennifer and two others did not.

The police named Andre Smith, 31, and Sean Salley, 29, as suspects in this triple homicide. Andre walked into the Midtown North station house 10 days later and denied any involvement. After cops grilled him for hours, he changed his story, admitting he'd gone to Jennifer's apartment to steal marijuana. He insisted that Sean Salley—whom he'd met a few days earlier—had shot all five people. It took cops nine weeks to track down Sean, who was hiding out in a homeless shelter in Miami.

Memorial Day weekend 2004: Lynne's first trip to see Andre at Green Haven prison
photo: Courtesy Lynne Harriton
Memorial Day weekend 2004: Lynne's first trip to see Andre at Green Haven prison

Andre and Sean went on trial together with two juries; Lynne was the foreman of Andre's jury. She believed Andre had told the truth about not firing the gun. Indeed, even the prosecutor had stated during his closing statement that Sean had shot all five people. But Andre's jurors were not supposed to determine whether he'd shot anyone—only if he'd committed (or tried to commit) a robbery that caused a death. If the answer was yes, then he was guilty of murder. That is how the law works.

Lynne had no doubt that Andre was technically guilty; her concern was with the punishment he was about to receive. She thought he deserved 25 or 30 years in prison—a substantial amount of time, but fewer years than Sean. Reading the news coverage after the verdict, she began to worry that Andre would have to spend the rest of his life behind bars.

She sat down in front of her computer.

Dear Judge Berkman,

I write to beg you to show leniency in your sentencing of Mr. Smith. . . . Mr. Smith was not the gunman. He is not himself a killer. Information revealed by the state during the trial indicates that he was shocked and horrified by the actions of the gunman, that he felt remorse, sadness and shame. Please, Judge Berkman, you consistently showed such kindness and warmth to us. Could you afford this person some years of light at the end of his life?

Lynne sent the letter to the judge, the prosecutors, Andre's lawyers, and Andre. Then she went to Austria to take summer courses.

On July 29, 2002, Judge Berkman sentenced both Andre and Sean to the same amount of prison time: 120 years to life. This included 25 to life for each murder, plus additional years for robbery and gun possession. The judge gave them the maximum punishment by stipulating that the sentences run one after another rather than concurrently.

Lynne was still in Austria when she opened an e-mail from one of Andre's lawyers and learned about his sentence. Immediately her stomach began to hurt and her hands felt clammy. The next day she found herself leaning over the toilet bowl, her body racked by dry heaves.

Soon a sense of rage started to take over—rage at the judge and the prosecutors. "There's a difference between pulling a trigger five times and not pulling a trigger even once," she says. "I had the feeling that I had participated in something that was wrong. Can you imagine walking out of there after five weeks and feeling like there's a stain on your soul? I felt like, how could I rectify this? How was I going to help?"

After she got home in mid August, she received an envelope from one of Andre's lawyers, with a letter from Andre, who was still at the Queens House of Detention. At the time, Lynne had no way of knowing what sort of role the man she had convicted of murder would come to play in her life—and what sort of role she would play in his. Back then, three years ago, she never could have imagined that someday she would become Andre Smith's closest friend.

Andre's two lawyers, both from Legal Aid, had employed a mistaken-identity defense during the trial, claiming the police had arrested the wrong guy. It was a tough argument to make since the prosecutors had a signed confession from Andre, his fingerprint on a piece of duct tape, a surveillance video, and eyewitness testimony from the two surviving victims.

Despite his conviction, Andre insisted in his first letter to Lynne that he was an "innocent man." He complained that even if the judge had given him just 25 years, he'd still be stuck behind bars for the rest of his life. Lynne disagreed.

Dear Mr. Smith—or may I call you Andre?
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