Ex-congressional aide avoids punishment in sex assault

April 24--A Berks County judge spared a former congressional aide any punishment for sexually assaulting a sleeping man, saying that registering as a sex offender was consequence enough for his crime.

Timothy Smith, 57, of Muhlehnberg Township was convicted in December of indecent assault after the victim testified Smith fondled his penis and penetrated him with his fingers as the 20-year-old slept at Smith's house in 2009.

In delivering the sentence Monday, Judge Madelyn Fudeman noted Smith's lack of a prior criminal record and decades-long career in public service. Under state sentencing guidelines, Smith could have faced up to three months in jail.

He will be required to register as a sex offender for 15 years. Fudeman acknowledged that Pennsylvania courts have established that sex-offender registration requirements are not considered punishment.

"It is undeniable, however, as a consequence of this case, Mr. Smith will be prohibited for a minimum of 15 years from working in public service, which is effectively the remainder of his working life," Fudeman said.

Deputy Attorney General Daniel Dye, who prosecuted the case, objected to the sentence and said the state will consider appealing.

"We're not without legal remedy. We'll evaluate our options. One of the options we can look at is whether or not the sentence was an abuse of discretion," Dye said after the hearing.

He said a sentence imposing no punishment was disappointing for the victim, Jordan Krause, who waited nearly eight years to testify against Smith. The Morning Call generally does not identify victims of sex crimes, but Krause gave the newspaper permission to use his name.

"It has been a hard fight this entire investigation and process to get this victim justice, and it may simply be the next hurdle or it may be the end of the road," Dye said. "These are serious allegations and the defendant was found guilty by a jury of sexually offending on another person. It is a little unusual to see no penalty imposed for a sex offense."

Smith's attorney said his client is pleased with the sentence and is going to pursue an appeal to have the conviction overturned.

As district director for former U.S. Rep. Tim Holden from 1993 until 2012 and before that a member of U.S. Rep. Gus Yatron's staff, Smith became well-respected in Berks County political circles. Nearly 40 people, including state Sen. Judith Schwank, Berks County Commissioner Kevin Barnhardt and other local government officials and business people, testified about Smith's good character during his trial.

"The finding by this jury has not and will not change the opinion of the dozens of friends, coworkers, pillars of this community who know Mr. Smith is not capable of forcing himself on another person," defense attorney Jay Nigrini said during the sentencing hearing, where he argued that no further punishment was appropriate.

But Dye said the gravity of Smith's offense, his status in the community and lack of remorse make jail an appropriate sentence. Dye recalled Krause's testimony that he did not think Smith would ever be prosecuted because of his connections.

"The commonwealth's position is that paying for this crime means some kind of incarceration," Dye said.

During Smith's trial over two weeks in December, Krause told jurors his father invited him to Smith's home in September 2009 to have a few drinks. After two or three beers Krause decided he shouldn't drive and accepted Smith's offer to spend the night on a bed in his basement recreation room.

Krause testified he went to sleep but woke to find Smith in the bed with him, putting his hands inside the basketball shorts he was wearing.

Krause fled in only his socks and shorts toward a friend's home.

Nigrini said Krause's accusation was an attempt by others to disparage Smith's reputation over a perceived slight far in the past.

During the trial, Nigrini highlighted inconsistencies in Krause's statements to police and other investigators, including the fact that he did not mention Smith penetrating him when he first reported the assault to local police.

Krause reported the alleged September 2009 assault to Muhlenberg Township police hours later, but it wasn't until after the case was referred to the state attorney general's office that a grand jury recommended charges against Smith in 2013.

peter.hall@mcall.com

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