Mills has also filed a petition to have the misdemeanors dismissed because state law requires they be prosecuted within a year of their commission, according to court records.
Mills said Smith recently was released from the psychiatric unit at City Hospital in Martinsburg. Smith's condition, according to Mills, predates the Sept. 9, 1990, accident that claimed the life of Claude D. Poston Jr., 23.
At 2:30 a.m. that day, Poston was struck and killed by a pickup truck. According to the Berkeley County Sheriff's Department report, Poston was walking east on W.Va. 9 near Opequon Lane when he was hit from behind.
Smith was found down the road sitting in the truck. The deputy's report quotes Smith as saying, "I didn't hit anything. They hit me and just went flying" and "they didn't stop, so I didn't either."
Further complicating the prosecution of the case is the fact that the investigating deputy is dead.
Mills said there probably have been a dozen continuances requested in the case, many of them by Smith's previous attorney, Steven M. Askin, who is no longer practicing because of his own legal problems.
Mills took over Smith's case in March 1996. He attributed part of the delay to Askin being unable to locate files relating to previous mental examinations of Smith. He said the heavy caseload on the magistrates also was a factor in delays in this case and others.
Prosecuting Attorney Pamela Games-Neely, who did not represent the state at the scheduled status hearing, agreed the magistrates are overburdened, but questioned the issue of Smith's competency.
"Just because you're mentally ill doesn't mean you're incompetent," she said. Smith's ability to determine right from wrong and to aid in his own defense are the factors the court examines in deciding whether he is fit for trial.
Magistrate Joan Bragg said it may be late January before the case is scheduled to be heard.