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City voids marker study; will try anew
Head of review supervised the lead detective in case
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Published: September 1, 2007
The administrative review of how the Winston-Salem Police Department handled its investigation of the near-fatal beating of a woman in December 1995 is being withdrawn because one of the two officers assigned to the review had ties to the investigation.
City Manager Lee Garrity said yesterday that he is withdrawing the report on the Silk Plant Forest case, which was released Aug. 14, and is requesting a new review with assistance from an outside investigator.
Garrity had ordered the administrative review in early March in the wake of continuing questions about the guilt of Kalvin Michael Smith, the man convicted in the beating of Jill Marker. Smith is serving a minimum sentence of 22 years and 10 months in prison.
Smith has maintained his innocence, and the Duke Law School Innocence Project has been working on his behalf in hopes of overturning his conviction from December 1997. In addition, a five-part investigation of the case by the Winston-Salem Journal in December 2004 raised questions about the work of police and prosecutors.
When Garrity ordered the administrative review, he told police that he wanted the department to assign investigators who did not work on the original investigation.
Garrity said he was told that Lt. Ted Best, who headed the review, worked in the criminal-investigations division at the time of the assault. But Garrity said he was not told that Best had supervised the lead detective on the case, Don Williams, who is now retired.
Garrity said he first heard about Best's role on Wednesday from a reporter for the Journal. Garrity then reviewed documents and confirmed with the police department on Thursday that Best supervised Williams for a brief time in 1996. Best also signed Williams' reports in the Smith case as his supervisor.
The fact that Best supervised Williams during the case presents a problem, said Chris Mumma, the executive director of the N.C. Center on Actual Innocence, which coordinates the innocence projects at the state's law schools.
"It's like conducting your own audit or grading your own test," she said. "When you have a case like the Silk Plant Forest case, public confidence is completely at stake, and they should be doing everything they can to avoid even the possibility of a perception of a conflict."
Garrity's announcement yesterday cited Best's supervisory role and other issues for calling back the report.
"I'm going to withdraw the report and order a new review," he said. "I have discovered that some of the evidence and documents were not audited, and there was an apparent misunderstanding about the scope of the review.
"It appears that it just was not a thorough review," he said. "I did entrust the management of this review to the police department, and it appears that there may have been some shortcomings in the oversight of the review."
Garrity said he could not be specific about which documents were not reviewed, but said that Police Chief Pat Norris and the city's public-safety attorney, Julie Risher, presented him with that information this week.
Risher released documents this week showing that cigarette butts put into evidence with the Silk Plant Forest case were obtained at the public-safety center.
But there is apparently no police report describing how or why the butts were seized, and the district attorney's office had been under the impression recently that the butts were seized from the store.
The administrative review did not deal with the cigarette butts.
The review concluded that although Williams made mistakes in the investigation, he "did not deliberately ignore evidence or avenues of investigation." Williams declined to do an interview with Best during the review.
Best and Sgt. Ed Reese wrote the report. It was edited and reviewed by the city attorney's office, the police chief's office and Garrity.
The case against Smith alleged that he robbed and assaulted Marker in a random crime. The innocence project says that police didn't properly investigate whether the attacker was someone who knew Marker and was already in the store before she was beaten.
The innocence project has been reinvestigating the case since 2003, with access to police files, and says it has found new evidence that could help Smith prove his innocence. The Journal's series in 2004 reported that police stopped investigating the initial suspect after he moved out of town, and focused on Smith after a jilted girlfriend told police that he was the attacker.
Among evidence discovered by the innocence project that had not been given to Smith's defense attorney were a photo lineup that Williams showed to Marker in which she could not identify Smith as her attacker, and a statement from a customer in the store who said that Marker told her the back of the store was "dangerous."
Garrity said he will ask the Winston-Salem City Council to order a new review by the Citizen Police Review Board, which usually reviews citizen complaints made against city police officers. Investigation would be done by an outside, independent investigator, Garrity said.
"It won't be anybody who had involvement in this case or works for the city of Winston-Salem," he said.
The city council's public-safety committee would need to direct the Citizen Police Review Board to oversee the new review.
Marker, who was beaten about 20 times on the head, had severe brain injuries after the attack.
She is now blind, and lives in Ohio with her family, where she receives 24-hour nursing care.
She was awarded a $9 million settlement from the Silas Creek Crossing Shopping Center, where the attack occurred, after a lawsuit filed on her behalf claimed the center did not do enough to provide security.
The review that was withdrawn examined only police procedure, not how the case was prosecuted by the office of District Attorney Tom Keith.
Keith said recently that he and an assistant are reviewing facts of the case.
He said yesterday that he thought Best did a thorough review and found it helpful in providing him with information. But he said he welcomed a second review. "The more information, the better, because it saves time," he said.
Jim Coleman, a faculty adviser to the Duke Innocence Project, said that the request for a new review is appropriate because the city's review was done hastily and was not thorough or credible.
"They made no effort to talk to people outside the department who had relevant information," Coleman said.
He said he e-mailed Norris suggesting a number of angles the administrative review should examine. But the innocence project was never contacted and the report didn't deal with important questions, he said.
"I sent e-mail after e-mail raising specific issues that I think they should look at," Coleman said. "Things that had come up in our investigation that indicated that they had not pursued leads, and I asked them to look at that and I gave them specific information about it.
"All we were interested in is finding out what the truth was," he said. "We weren't out there trying to make a case to get Kalvin off if he were guilty. We always have been trying to find out what the facts were."
When asked if the department's shortcomings in oversight might result in any personnel action, Garrity said, "It is too soon to say, to comment on that."
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