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Step taken for new trial
Motion asks for hearing on evidence in Marker attack
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Published: April 30, 2008
The legal team representing Kalvin Michael Smith filed a motion in Forsyth Superior Court yesterday afternoon aimed at getting him a new trial in a 1995 assault case that has been drawing increasing public attention in recent months.
The motion alleges that Smith was wrongfully convicted in the brutal attack on Jill Marker at the Silk Plant Forest store off Silas Creek Parkway because of withheld evidence, false evidence, an ineffective defense attorney and other violations of his rights.
It says that the case against Smith depended on the testimony of three witnesses who lied, two of whom were pressured by police.
"There was no physical or even circumstantial evidence in any way linking Mr. Smith to the attack on Ms. Marker," the motion says.
District Attorney Tom Keith's office has prepared a response to the motion but hasn't filed it yet.
"This is a good thing. It's going to be good to air these issues in court, and a judge will do whatever's fair. That's the way it should be," said David Hall, an assistant district attorney reviewing the Smith case.
The motion asks for a hearing to show evidence that Smith deserves a new trial. The motion is expected to be reviewed by a judge. If the judge rules the motion has merit, the judge would then likely schedule a hearing.
Marker was struck on the head nearly 20 times with a blunt object on Dec. 9, 1995, in the back of the Silk Plant Forest, a store she managed. The weapon was never found. Money was missing from the cash register.
Marker suffered brain damage and later went blind. She was pregnant when attacked and gave birth to a healthy son while she was in a coma.
Smith's conviction has come under question because of the way police investigated the case and because of evidence that may not have been disclosed to Smith's attorney at the time.
The Innocence Project at Duke University Law School first took up Smith's case in 2003. Its work has been marked by clashes between Jim Coleman, the Duke law professor who heads the project, and Keith.
Keith has taken issue with criticisms by Coleman about the way that Keith's office has handled the questions raised by the Duke team. Twice last year, Coleman compared actions taken by Keith's office to those of disgraced former District Attorney Mike Nifong of Durham, who was disbarred for his actions in handling 2006 allegations of rape against Duke University lacrosse players.
Last year, Keith stopped talking with Coleman, who had been hoping to persuade Keith to join him in a legal action that would free Smith.
Separately, a citizens panel formed by the Winston-Salem City Council has begun to investigate the case, focusing on the role of the police department and whether evidence was properly examined.
Questions about case
The issues involving Smith largely deal with a conviction obtained as a result of statements by witnesses that have come under question. Coleman's Duke team has affidavits from some of those witnesses, who now say that police coerced their statements.
Smith was identified as a suspect after two jilted girlfriends told police that he had bragged about the crime. After the first girlfriend reported him, the police questioned him, and he passed a lie-detector test.
When a few months later another girlfriend reported the same thing, Smith was again questioned by police and gave a statement implicating himself, saying that he had been at the store. Smith later claimed that he gave that statement after hours of interrogation so that he could be released. The second girlfriend later said she made up her story because she was mad at Smith. She said she knew that the first girlfriend had said the same thing and that it would get him in trouble.
A Winston-Salem Journal investigation of the case, published in November 2004, raised questions about the work of the police, who, among other things, stopped investigating the initial suspect, Kenneth Lamoureux, after he moved out of town. Lamoureux had been identified by two people as having been in the store the night of the attack. The Journal series also discussed Marker's ability, given the severity of her head injury, to identify Smith years later at trial, with doctors saying that it would have been impossible. The motion filed yesterday claims that the trial judge should have barred Marker's testimony.
Another issue raised in the series was evidence that the lead detective on the case, Don Williams, said he deliberately withheld from defense attorneys. The detective told the Journal that he had consulted with the district attorney's office about that, an accusation denied by Eric Saunders, Keith's chief assistant at the time. Saunders retired from the district attorney's office and now works as a defense attorney.
In addition to its work obtaining affidavits from original witnesses, Coleman's group has raised questions about evidence involving photo lineups presented to Marker that were used to identify Smith.
For example, among the evidence is a videotape of a photo lineup that Williams showed to Marker in which she did not identify Smith as the attacker but did identify Lamoureux as having been in her store.
It's not clear why Williams did not write a report about that lineup to give to Keith's office -- a report that could have been crucial to Smith's defense had his attorney known about it. Williams is now retired, and since 2004 he has declined to discuss the case.
In a meeting last year with a group of Winston-Salem ministers and others concerned about the case, Keith acknowledged that there were violations of legal rules about sharing of evidence with defense attorneys, according to City Council Member Vivian Burke, who heads the council's public-safety committee.
Support for Smith
Smith's case has become a rallying point in the community, drawing special attention, for example, at January's Martin Luther King Jr. Day parade and luncheon.
In addition to the Ministers' Conference of Winston-Salem and Vicinity becoming involved, another person who has taken up the issue is Darryl Hunt, who himself was wrongly imprisoned for more than 18 years in the 1984 murder of Deborah Sykes. Hunt was freed in 2003 after DNA evidence identified another suspect, who admitted to the crime. At the heart of Hunt's case was a problem with police work and a legal system that did not look closely at shaky eyewitness identification and statements.
Last year, the city decided to investigate whether mistakes were made in the Silk Plant Forest case. But the internal police-department review was withdrawn after City Manager Lee Garrity learned from a Journal reporter that the officer who led the review had been a supervisor to Williams.
The city then decided to form a citizens panel to look at the case.
Hunt, who is now that head of an organization that looks at issues of wrongful imprisonment, publicly urged that the panel be given broader ability to study the question of Smith's innocence, rather than focus on whether mistakes were made in the original investigation.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
■ Les Gura can be reached at 727-7234 or at lgura@wsjournal.com.
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