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Robert Gold-Smith

Other Will County, Illinois exonerations
On October 11, 2012, 50-year-old Robert Gold-Smith was indicted by a Will County, Illinois grand jury on charges of solicitation of murder for hire and solicitation of murder. The indictment accused Gold-Smith, who was an attorney, of soliciting Brian McDaniel to kill Gold-Smith’s estranged wife, Victoria.

On October 3, 2012, McDaniel said, he surreptitiously recorded a conversation with Gold-Smith while both were inmates at the Will County Adult Detention Center. At the time, Gold-Smith was awaiting trial on charges of assaulting 43-year-old Victoria Smith. On November 19, 2010, following a hearing in their divorce case, witnesses said they saw Gold-Smith grab Smith by the hair and punch her in the face several times.

The murder solicitation case was assigned to Will County Circuit Court Judge Daniel Rozak, who also was overseeing the aggravated battery case. On October 17, 2012, Gold-Smith asked his public defender to withdraw so he could proceed pro se until he could hire a private defense lawyer. Gold-Smith said he wanted to move for substitution of judge. The public defender had refused to do so, so Gold-Smith said he felt forced to request the withdrawal so that Gold-Smith could file the motion himself. Judge Rozak noted, “It is your attorney’s right to do that,” but expressed concern that Gold-Smith was gaming the system and that other defendants might do the same thing to avoid going to trial before Rozak. The judge refused to allow the public defender to withdraw.

Nine days later, Gold-Smith attempted to file a pro se motion for substitution of judge, alleging that Judge Rozak was biased against him. Judge Rozak denied the motion.

After many continuances over more than two years, Gold-Smith was allowed to proceed pro se in January 2014. He filed several motions, including a motion to dismiss the indictment, arguing that McDaniel lied about having the solicitation conversation. The motion claimed that McDaniel fabricated the conversation by providing his own voice and a whispered voice that he attributed to Gold-Smith.

During a hearing, Bradley Schlott, another inmate at the jail, testified that McDaniel was living in the A pod. Schlott said McDaniel said he wanted to get into the B pod because he had “some things he wanted to do with [Gold-Smith].” Schlott also testified that McDaniel said several times that he was going to get his case dropped and he was going to be released. Schlott said he didn’t believe McDaniel was going to get released because of McDaniel’s extensive criminal history, including crimes of violence. Schlott said he suspected McDaniel was a snitch.

Schlott testified that he had a conversation with Gold-Smith during which Gold-Smith said McDaniel had been asking him strange questions. Schlott said he told Gold-Smith what McDaniel had said and that he believed McDaniel was a snitch. Schlott said he warned Gold-Smith to avoid McDaniel because he might be wearing a wire.

Soon, McDaniel was transferred from A pod to B pod. Several days after that transfer, Gold-Smith, Schlott and another inmate, Darrell Stephenson, were in the common area of the B pod watching television when McDaniel sat in a chair behind them. Schlott said Gold-Smith never left his chair, but McDaniel got up several times, walked to the pay phones and returned. At one point, Schlott said McDaniel appeared to be talking and whispering to himself. McDaniel then went to his cell. Soon after, a lockdown was ordered, and everyone returned to their cells. Schlott said McDaniel was taken from B pod and they never saw him in that section of the jail again.

The prosecution argued that the motion should be denied, saying that “short of…maybe some type of affidavit from someone admitting perjury,” Gold-Smith could not prove the indictment was improperly obtained.

Judge Rozak denied the motion to dismiss, ruling that the case turned on witness credibility issues. Judge Rozak also denied a motion by Gold-Smith to hire a forensic audio expert. The judge noted that the expert had indicated in a letter that no expert can determine the origin of a whispering voice.

On December 31, 2015, while the aggravated battery case involving his now ex-wife (the divorce was finalized in 2013) and the murder solicitation cases were still pending, Gold-Smith was charged with a third crime—communicating with a witness.

He was accused of sending a prepared affidavit to an associate, Julio Centeno, titled “Declaration of Brian McDaniel.” The affidavit said that McDaniel fabricated the recording, that he had perjured himself in front of the grand jury, and detailed benefits he was promised and received from the prosecution. The affidavit said McDaniel only came forward because the statute of limitations for perjury and obstruction of justice had expired.

During recorded phone calls from the jail, Gold-Smith told Centeno that the only thing that mattered was that McDaniel sign the affidavit. Centeno said he would indicate that if McDaniel signed there would be “something at the end of the rainbow.”

Gold-Smith drafted a letter as if he were Centeno, who then signed it and sent it to McDaniel. McDaniel, who was in the Kankakee County Jail at the time, promptly went to police, which launched another investigation. The result was that Gold-Smith was charged with communicating with McDaniel with the intent to deter him from “testifying freely, fully, and truthfully” about the murder solicitation.

In February 2016, Gold-Smith, representing himself, went to trial on the murder solicitation case. He chose to have Judge Rozak decide the case without a jury. The prosecution’s case relied primarily on the testimony of McDaniel, who had indeed been wearing a wire. During the recording, McDaniel could be heard asking whether “he” wanted McDaniel to kill “her,” whether “he” agreed to pay McDaniel $5,000 for killing “her,” and whether “he” would call his power of attorney to ensure that the funds were transferred.

A voice that the prosecution attributed to Gold-smith whispered in reply that he wanted “the bitch” killed and answered in the affirmative that McDaniel would get $5,000 for killing “her.”

McDaniel testified that at the time of the trial, he was being held on two retail theft charges. He said that in 2012, he was being held on an aggravated battery charge and was facing an extended term of two to 10 years.

He said that at first, he thought Gold-Smith was “just venting, and then it became serious…At first he just wanted to hurt her like slice her face or — so how he put it, so she – every time she looked in the mirror, she would remember him.” McDaniel added, “[H]e kept switching up: Throw some acid at her. Just crazy stuff.”

“[O]r a can of — he had a can of gas that you would light and throw on [her],’ McDaniel testified. “Just crazy, heinous stuff and then he’s just like, just — he wanted her dead.”

McDaniel said he told his attorney about the conversation. Not long after, he was approached by police who fitted him with a recorder-transmitter so that police could listen in. The police arranged for McDaniel to be transferred to B pod. At that point, the prisoners in the pod were given break time. McDaniel said he had a conversation with Gold-Smith in the common area next to the pay phones. McDaniel said they grabbed a receiver as if they were making a call. Due to the short cords, they had to stay facing each other. McDaniel said he posed questions and Gold-Smith answered in whispers.

McDaniel said that at the conclusion of this conversation, he returned to his cell. He testified that he spoke into the transmitter that if the police had enough information, they should call for a lockdown and get him out of there.

McDaniel said he was not promised anything specific, but that he expected he would get something. His felony aggravated battery charge was reduced to a misdemeanor. He said he was conditionally released from the jail, given some phone cards and a $100 commissary credit. But he said the phone cards did not work and the commissary credit got lost when he was removed from the jail and sent to the Kankakee County Jail.

He acknowledged that he received a $1,000 Crime Stopper reward. He said he never intended to carry out the killing.

Gold-Smith and the prosecution stipulated that three other inmates told police that Gold-Smith had solicited them to kill Smith. Gold-Smith contended that those claims were false and had not resulted in the filing of any charges.

Centeno also testified. He detailed how he had reached out to McDaniel to see if he would sign a recantation statement. Centeno said McDaniel demanded $8,000. The affidavit was not signed, although in one last phone call, McDaniel claimed he would be willing to sign it.

Gold-Smith’s estranged wife testified that she recognized the whispered voice as Gold-Smith’s voice.

Gold-Smith presented several witnesses who testified they were familiar with Gold-Smith’s voice and that the person who was whispering on the tape was not Gold-Smith.

Gold-Smith testified and denied having the conversation with McDaniel. He said he did not have $5,000. He said he was on alert based on Schlott’s warning.

A surveillance video of the common area from the B pod at the time that the solicitation conversation took place was entered into evidence. Gold-Smith said he wanted the video introduced for the limited purpose of showing when McDaniel entered B pod at 6:45 p.m., and when McDaniel left the pod at about 7:45 or 7:50 p.m. Gold-Smith told the judge that recreation started at 7:10 p.m. and “from that point on everything [in the video] is pretty much useless.”

The prosecution did not object, noting that the “real meat of what the case is” was not recorded on that camera. The judge noted that there was no identification of McDaniel and the video showed “a number of people milling around” and did not tell the court anything of value.

On March 8, 2016, Judge Rozak convicted Gold-Smith of both counts of solicitation. He sentenced Gold-Smith to 30 years in prison.

Gold-Smith subsequently moved for a new trial. He argued that he should have been allowed to present the testimony of a forensic audio expert, particularly if the expert said no one could determine to whom a whispered voice belonged. “[S]uch expert testimony would have provided reasonable doubt that if an expert cannot determine the origin of a whispering voice, no reasonable juror could be expected to do so,” the motion said.

The motion also detailed for the first time what the video showed Gold-Smith doing. At the time the video was presented at trial, a rectangular black box showing the time obscured Gold-Smith from the video. However, after the trial, Gold-Smith learned how to disable the black box, so that he was visible on the footage.

The video showed that Gold-Smith never left his chair during the entire video. The motion for a new trial noted that McDaniel claimed the whispered conversation took place at the pay phones, which are not shown in the video. “This is unequivocal proof of defendant’s innocence,” the motion declared.

The motion for a new trial was denied. Gold-Smith appealed. While the appeal was pending, he had two separate trials on the aggravated battery to his estranged wife and on the charge of communicating with a witness. In November 2016, he was convicted of aggravated battery and was sentenced to 3 years in prison. In September 2017, Gold-Smith was convicted of the communicating with a witness charge and sentenced to four years in prison.

On October 22, 2019, the Third District Illinois Appellate Court reversed the murder solicitation conviction and ordered a new trial. The court ruled that Judge Rozak had erroneously prevented Gold-Smith from filing a motion for substitution of judge. The court said that Gold-Smith was legally entitled to file such a motion and that his intention was “not part of serious and obstructionist misconduct.”

On December 12, 2019, Gold-Smith was released from prison on parole for the two other cases and remained free on bond on the pending murder solicitation case. On March 1, 2023, the prosecution dismissed the case.

– Maurice Possley

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Posting Date: 5/1/2023
Last Updated: 5/1/2023
Most Serious Crime:Other Violent Felony
Additional Convictions:
Reported Crime Date:2012
Sentence:30 years
Age at the date of reported crime:50
Contributing Factors:Perjury or False Accusation
Did DNA evidence contribute to the exoneration?:No