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The Silk Plant Saga
Tainted internal review raises new questions
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Published: September 16, 2007
The Winston-Salem Police Department's botched internal review of the Jill Marker case hardly could have come at a worse time, some city officials say.
The review was released to the public on Aug. 14, just seven months after the city agreed to pay $1.6 million in restitution for bad police work that led to Darryl Hunt's wrongful imprisonment of more than 18 years in the murder of Deborah Sykes.
And it comes amid a new push studying Kalvin Michael Smith's potential innocence in the 1995 attack on Marker at the Silk Plant Forest. Smith is serving a minimum sentence of 22 years and 10 months for the attack.
District Attorney Tom Keith said Wednesday that he is re-interviewing all the key witnesses in the case. That action comes after months of lobbying by Jim Coleman, a Duke University law professor working on behalf of Smith, and as questions linger about how police and prosecutors handled evidence in the case.
When city-council members voted in January to pay Hunt, city officials tried to assure the public that things were different. They said that the police department isn't the same as it was 20 years ago, when police detectives used questionable interview techniques and ignored certain evidence to make Hunt the key suspect in Sykes' murder.
But the Marker review has raised new questions about how much the police department has changed.
The review had to be withdrawn just days after it was turned in, after a Winston-Salem Journal reporter told City Manager Lee Garrity that Lt. Ted Best, who led the review, had been a supervisor involved in the Marker investigation. The city is now looking for someone to do an outside review.
Police Chief Pat Norris assigned the review to Best, even though he had supervised the lead detective, Don Williams. Best's assignment put him in a situation of having to review himself.
"When you talk about people evaluating themselves, you're going to be a little more sensitive about what you put out there," said Council Member Vivian Burke, the chairwoman of the city council's public-safety committee. "They're too busy defending something as if they cannot be wrong."
The review
When Garrity ordered the administrative review last winter, he requested that nobody with a connection to the Marker investigation be involved.
Best told his superiors that he had been Williams' supervisor during the Marker investigation, Garrity said. There were discussions within the police department about Best's connection to the case, but it is not clear how high up the chain of command those discussions went.
Garrity said he wants to determine who knew that Best had worked on the case.
"I was told before they picked Best that he had had a short stint, a short time of working in the criminal-investigation division at the same time. I did not know that he had been a supervisor," Garrity said. "I just don't know who knew at this point and who didn't know."
He said that "the majority of responsibility and accountability" falls on himself and Norris.
Norris declined to be interviewed, sending a response by e-mail.
"As Chief of Police, actions taken by the Police Department fall solely with me," she wrote. "I accept responsibility for the selection of the individuals who conducted the review and its outcome. As always, the Winston-Salem Police Department welcomes the involvement of an outside reviewer and will fully cooperate. I continue to have full and complete confidence in the professionalism and dedication of all of my employees."
Best had supervised Williams for several months, signing Williams' reports at the beginning of the Silk Plant Forest investigation. Some of Williams' reports are now under scrutiny because of their failure to document information that could have been used by Smith's defense.
A report filed nine days after the attack on Dec. 9, 1995, and signed by Best gives a glimpse of how Williams' reports appear questionable.
In the report, Williams described an interview he did with Stacy Spainhour, who worked with Marker at the Silk Plant Forest store where Marker was attacked. "I . asked Ms. Stacy Spainhour if she could remember any comments made by Mrs. Jill Marker concerning any problems Mrs. Marker may have experienced with any customers or persons coming in the Silk Plant Forest (store).
"Ms. Spainhour stated that Jill Marker spoke of no problems," Williams wrote.
Other police documents, however, show that on the night of the attack, Spainhour told a police officer that Marker had said that a suspicious person had been in the store a few days earlier. Williams' report was handed over to Smith's defense attorney, but Spainhour's statement about the suspicious person was not given to the defense. That apparent discrepancy was not dealt with in the internal review released Aug. 14.
That wasn't the only issue not opened in the review, said Coleman, whose Duke Innocence Project has taken up Smith's cause.
Coleman said he has e-mailed Norris suggesting a number of issues that the review should look at, including leads that the original investigators did not pursue, and he offered to share his information. The innocence project has spent years reviewing files and interviewing witnesses, and has found new evidence, he said.
Coleman said that the police department did not take him up on his offer.
Do it again
Garrity withdrew the internal review days after he gave it to the public, a move supported by council members.
"My view is that (assigning Best) was clearly an error, and our response at the council level has been to agree completely with the city manager's conclusion that this review has to be redone, and has to be redone by an outside objective third party," Council Member Dan Besse said.
Garrity recommended that the Winston-Salem Citizen Police Review Board do the second review, but the city council's public-safety committee turned down the idea on Monday. The committee members said that the review board, which usually studies minor complaints against police officers, is not set up to take on such big projects and is too connected to the police department.
Council Member Nelson Malloy said that the police department's first internal review was disturbing and unacceptable.
The public-safety committee voted to go outside the police department to get a new review, an idea that Coleman also supports.
"I hope that whoever does this investigation or this review will approach it objectively as opposed to approaching it with the idea of trying to defend what happened," Coleman said.
On Wednesday, Garrity updated the council members in an e-mail about his plans to meet with representatives of Wake Forest University Law School to talk about options.
Deputy City Manager Derwick Paige has talked with a company in Raleigh that conducted a recent investigation of the Greensboro Police Department. But the company, Risk Management Associates, has a conflict of interest because of a previous involvement in a civil lawsuit that Marker's family filed against the Silas Creek Crossing Shopping Center, where the attack took place. Marker won $9 million in the lawsuit.
Whatever its makeup, the new review panel probably won't have the power to subpoena witnesses. In the 1990s, the city tried unsuccessfully to get subpoena power for the Citizen Police Review Board. The review committee that looked at the Sykes investigation had no subpoena power.
To obtain subpoena power, the city would have to get permission from the General Assembly, City Attorney Ron Seeber said.
Without subpoena power, obtaining a statement from someone such as Williams, the lead detective whose work on the Marker case has been criticized, could be difficult. He would have to talk with the review panel voluntarily.
Garrity said he plans to recommend options to the city council in October.
The council members and Mayor Allen Joines said that despite the botched review, the police department today operates in a more open way. The city, for example, could have cited exemptions to keep parts of the police reports confidential. But it didn't.
Still, Council Member Burke warned that the public can take only so many mistakes and bungled reports - a sentiment that was echoed by Joines.
"We are working to rebuild trust in our department," he said, "but any time you have a negative issue like this come up, it makes it difficult in rebuilding that trust."
DA's reinvestigation
The heightened interest in the Silk Plant Forest case comes as Coleman's work is in its fourth year.
In addition, a five-part Journal investigation published in November 2004 found numerous problems in the work of police and prosecutors. Among those were discrepancies in the statements that police took from witnesses whose testimony helped to convict Smith. Coleman has since obtained affidavits from several witnesses, who said that the police coerced them into their statements.
The Journal series also found that Williams stopped investigating an early suspect when the man moved out of the city, and it raised questions about Marker's ability, in the wake of being beaten so severely on the head, to have any memory of the attack.
Keith said last week that he is in the midst of a full-scale reinvestigation of the case. He said that he and Assistant District Attorney David Hall are re-interviewing witnesses, though he declined to give details.
The interviews began Aug. 22 when Williams was called to Keith's office to answer questions; the detective, now retired, had declined to talk with Best during the administrative review.
Keith would not disclose what Williams told him, but the interview came as questions had been raised in the review panel's report about two interviews that Williams conducted with Marker. In the first one, he brought Marker two sets of photo lineups, and she could not identify Smith, but did recognize the early suspect in the case. Williams did not document in writing the people in the photo lineup, even though the interview was videotaped.
In his second interview with Marker a year later, Williams did document in writing that she identified Smith as her attacker, but he did not videotape that interview.
Marker, who gave birth to a healthy boy while in a coma a few months after the attack, today lives in Ohio with her parents. She is blind and requires 24-hour care.
Keith's newfound interest in the case comes after months of disagreements with Coleman. In April, for example, Keith said he could not respond to the innocence project's every request because he was too busy, and that he didn't handle e-mail well.
Now, Keith said, he and Coleman are sharing information.
Keith said he is examining two aspects: Issues that could be grounds for a new trial for Smith, and any evidence that Smith is innocent of the crime.
"This is serious stuff and we take it seriously, and I think we have to leave no stone unturned," he said. "I've got to look at somebody's eyes. 'Tell me what you said.' Listen to the timbre of their voice."
"We are looking at everything - just everything you could possibly look at," he said. "We're pushing this rapidly. We are, I think, coming to the end."
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