Kristin Smart: Wrongful-death suit still in limbo 18 years after disappearance

ppemberton@thetribunenews.comFebruary 5, 2014 

Kristin Smart

A wrongful-death lawsuit filed against the last person seen with Kristin Smart remains in limbo 18 years later because the San Luis Obispo County Sheriff's Office won't release evidence the plaintiffs say is vital to their case.

But Smart’s parents, who filed the lawsuit, say that’s OK now that the Sheriff’s Office has a renewed interest in the disappearance.

“It’s really safe to say we feel optimistic,” said Denise Smart, the mother of the Cal Poly student who has been missing since May 25, 1996. “That’s all you can hope for at this point.”

Kristin Smart, a 19-year-old freshman at Cal Poly, was last seen walking to her dorm from a party with fellow student Paul Flores. In a lawsuit filed later that year, the Smarts claimed Flores “violently assaulted and murdered” their daughter.

Flores, now 37, has never been charged with a crime in the Smart case, but the Sheriff’s Office considered him a possible suspect from the outset. Through the years, the lawsuit has stalled as a result of an ongoing criminal case that the courts say has priority.

During an annual progress hearing Wednesday, the suit was again put on hold when San Luis Obispo Superior Court Judge Martin Tangeman ruled the criminal case is “ongoing and active.”

In court papers filed in the civil suit, attorneys for Flores have claimed that Smart’s own negligence contributed to her disappearance. Witnesses said Smart had been drinking at the party before leaving around 2 a.m. Flores’s attorneys further claimed that the plaintiffs relied on speculation and had “no facts in support of their contention (that the) defendant caused the death of their daughter.”

Parents Denise and Stan Smart contend that the facts are there — they just don’t have access to them. The Smarts filed the suit, allowing them to investigate on their own, fearing law enforcement wouldn’t find their daughter.

“I think right from the get-go, people were stymied and inexperienced,” said Denise Smart, of Stockton.

For strategic reasons, the Smarts dropped their suit in 1998 and re-filed it in 2002, after a judge declared Kristin Smart legally dead. But the Sheriff’s Office wouldn’t supply evidence the plaintiffs said they needed.

Subpoenas filed by attorney James Murphy, representing the Smarts, requested the entire investigative report of the Sheriff’s Office, including interviews with witnesses and Flores, physical evidence, all internal memos concerning the Smart case and forensic reports.

“We can’t move forward unless we have all that information,” said Garin Sinclair, the office manager and senior legal assistant at Murphy’s firm.

In its court filings, attorneys representing the Sheriff’s Office claimed prematurely releasing evidence would jeopardize the criminal case.

“The public interest in solving the homicide and bringing its perpetrator to justice outweighs the individual’s interest in pursuing civil litigation,” they wrote.

Yet, several years after Kristin Smart disappeared, Murphy’s office claimed the case had grown “tepid if not cold,” with no progress.

“We felt for 15 years it wasn’t a priority,” Denise Smart said.

At one point, the San Luis Obispo Superior Court agreed, ruling in December 2007 that it was time for the Sheriff’s Office to release records to the Smarts. But the 2nd District Court of Appeal overturned that decision, saying the sheriff’s investigation was ongoing. The records, the appellate court ruled, were privileged.

While the courts have ordered yearly evaluations to determine if the Sheriff’s Office is still actively pursuing the investigation, the Smarts weren’t satisfied with the progress until Ian Parkinson was elected sheriff in 2010.

Once he took office, Parkinson ordered a fresh look at the case, said sheriff’s spokesperson Tony Cipolla.

“We have two investigators that are working on this case,” he said, adding that forensic evidence is currently being evaluated at a lab. “It has never been considered a cold case. We are actively working on all leads that we have received in the case.”

Denise Smart said the Sheriff’s Office has been forthcoming about what they are doing in the case — which she said is a change from the past. And Murphy’s office is so confident that Parkinson is pursuing leads, they did not contest Wednesday’s annual progress report.

“We really do have confidence in him,” Sinclair said. “It’s a lot different when you have trust in the people you deal with.”

Tangeman ordered that the stay be continued until next January. As a result, the lawsuit remains inactive.

Paul Flores, who currently lives in Los Angeles, did not attend the hearing. Calls to his Los Angeles-based attorney, Stacey Miller, were not returned.

During a 2007 deposition for the civil suit, Flores did not answer questions regarding Smart’s disappearance, invoking his Fifth Amendment right not to incriminate himself.

Denise Smart said she’s not concerned with what happens to Flores at this point; she just wants to know where her daughter is. “The hardest part is not knowing,” she said. “Kristin did not deserve what happened to her. But what she does deserve is to be brought home.”

Kristin Smart — last pictured as a vibrant 19-year-old — would turn 37 on Feb. 20. Meanwhile, her brother and his wife are expecting their first child, and her sister is planning to marry this year.

“Her sister should be her maid of honor,” Denise Smart said.

Keep updated by adding Patrick S. Pemberton on Google+.

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