Brian Smith's family members say they want justice.

But eight months after the 32-year-old died from a knife wound on his leg, State Police and the Rutland County State's Attorney's Office said they aren't sure whether a crime was committed on the night of Oct. 3, 2008.

It was on that autumn night in Poultney that Smith went to the home of his estranged wife, Serena Smith, where police say a confrontation with Herman Hier — Serena Smith's fiancé — led to his death.

Hier and Serena Smith told police that Brian Smith came to their home at 41 Broughton Ave. and started an argument that escalated, they said, when Smith grabbed his wife and dragged her into the street.

Hier told police he came to his fiancé's aid by first arguing with Smith and then wrestling with him. But when Smith put him in a headlock — something Smith's family contends never happened — Hier said he stabbed Smith in the leg with a foldout knife.

Smith, who was taken to Rutland Regional Medical Center, died from blood loss hours after he was stabbed.

Initially, Hier, 22, was issued a citation for aggravated assault but that charge was soon dropped, although police said the investigation would continue.

More than half a year later, the investigator in the case said he couldn't comment on its status and State's Attorney James Mongeon would only say that he is seeking more information from police.

"The police followed up on matters. I asked for further information and the police are gathering that information," Mongeon said.

But those answers aren't good enough for Smith's mother and siblings who plan to picket in front of Mongeon's office to protest what they say is an unwillingness on the part of the state's attorney to move the case forward.

"Every time I called, I got the same thing. Hopefully this will light a fire because this is baloney," Smith's brother, Dewey Corlew, said during an interview with several family members. "Who do you have to be for people to go the extra mile? His life might not have meant a lot to someone else but his life was worth a lot to me."

The family's frustration was underscored last week when Hier was arraigned in court for allegedly using a knife to threaten his mother. Hier, who pleaded innocent to a felony charge of first degree aggravated domestic assault and a misdemeanor charge of unlawful mischief, was ordered held without bail by Judge Thomas Zonay, who said he was concerned by an apparent escalating pattern of behavior and alleged violent crime.

Laura Armstrong, Brian Smith's mother, said she could only shake her head after hearing about the new charges against Hier.

"I feel that if the State's Attorney had taken a look at (her son's case) before the incident … If he'd taken a look at it and done something about it, this wouldn't have happened to his mother," Armstrong said. "I don't understand why an arrest hasn't been made."

Armstrong and her children all believe the prosecutor has the evidence he needs to bring charges.

While police Detective Lt. Tim Oliver referred last fall to the incident as a "tragic accident" that occurred while Hier was acting in defense of his fiancée, members of Smith's family contend that there's ample evidence to suggest that Smith was drawn into a confrontation by Hier and his estranged wife.

Smith's sister, Penny Folsom, and her husband BJ Folsom, who shared their home with Smith before he died, said Serena Smith called Brian Smith repeatedly in the days leading up to his death and they said there were several calls from Serena on the day Smith died.

"I heard Brian say to her, 'You know I can't come over there,'" BJ Folsom said.

"The truth of the matter is, he was an invited guest there," Armstrong added.

The family also objects to the notion that Hier acted in self defense.

"The only way justifiable homicide works is if there wasn't a door they could go inside and lock," Corlew, Smith's brother, said.

And they contend that Smith was beaten as he lay on the ground after the stabbing.

Armstrong, Folsom and Corlew all said that Smith's eyes were swollen shut and his ears were bleeding when they saw him in the hospital.

"How is it not a charge if they continued to beat him after he was down?" Corlew said. "His face was unrecognizable."

brent.curtis@rutlandherald.com