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Wider Scope Asked For Panel
Council to consider giving it more power in Marker-case probe
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Published: February 24, 2008
A new citizens committee that the city is creating will be allowed to do more than look at the role of the police department in the beating of Jill Marker, a pregnant store clerk, in 1995.
Supporters of Kalvin Michael Smith, the man convicted of the assault on Marker at the Silk Plant Forest, met with City Manager Lee Garrity and other officials last week to further push their case that the citizens committee be given broad powers. Smith has maintained his innocence since being charged.
The city formed the citizens committee after an internal review last year into the police department's role in the Silk Plant Forest investigation was scuttled for lack of thoroughness and independence.
The scope of the Silk Plant Forest Citizen Review Committee will be considered by the city council's public-safety committee on Monday.
The city's discussion follows years of controversy over the near-fatal beating of Marker, who was struck on the head about 20 times on Dec. 9, 1995, in the store she managed off Silas Creek Parkway.
An investigation by the Innocence Project at Duke University has found that Winston-Salem police withheld potentially critical evidence from the district attorney and the defense attorney before Smith's trial.
The city's discussion comes as legal issues in the case continue.
An attorney for Smith said he has essentially finished writing a 90-page motion asking for a new trial based on new evidence. It has yet to be filed in court. And Tom Keith, the Forsyth County district attorney, has been conducting his own review of the case since August; it remains unclear whether Keith would join in a defense motion asking for a new trial, whether he would stay neutral, or whether he would oppose such a motion.
The city council voted in October to create the citizens committee. At the time, its charge was to examine only whether the Winston-Salem Police Department followed proper procedures in investigating the case.
But under pressure from Smith's supporters, Garrity is now recommending that the committee's scope be amended to make it a fact-finding panel. If the Winston-Salem City Council's public-safety committee agrees, the full council would vote on the issue March 3.
Garrity, City Attorney Angela Carmon and police-department attorney Julie Risher met at City Hall on Monday with four of Smith's supporters: Darryl Hunt, Mark Rabil, Regina Lane and Jet Hollander.
Hunt was twice wrongly convicted of the murder in 1984 of Deborah Sykes. Rabil was his attorney, and Hollander was a member of a citizens committee that from 2006 to 2007 reviewed mistakes that police made in that investigation. Five months after Sykes was killed, Lane was raped and slashed on the face 12 times by Williard Brown - the man who had raped and killed Sykes and was roaming free while police erroneously focused on Hunt, despite a series of similar attacks in downtown Winston-Salem.
Smith's supporters made several requests that Garrity did not put in his proposal for the council:
- They want the city to ask the General Assembly to give the committee subpoena power. Garrity's proposal recommends that the city council issue subpoenas on behalf of the committee, and conduct interviews, a power that it already possesses. (The council cannot grant subpoena power to the committee.)
- They accepted that Winston-Salem police detectives can investigate on the committee's behalf, but they want the committee to choose the detectives and have them to report to the committee. Garrity's proposal does not spell that out, but he said that is his intent.
- They want the council's resolution to say that the committee's interviews will be recorded, and that the panel will have the option of putting someone under oath. Such wording isn't currently in Garrity's proposal.
Smith's supporters had previously asked that the city hire an outside company to do investigation on behalf of the committee, but they realize that for financial reasons that probably isn't possible, Hollander said.
However, they still want the city to at least pursue getting subpoena power for the committee and to use the council's existing subpoena power as a backup plan.
If the committee can't issue subpoenas, the entire city council apparently would end up conducting interviews, Hollander said.
"If they do what Lee is saying, they are turning themselves into the citizens committee and giving themselves a lot of work," he said.
Garrity said in an e-mail that he thought that the city had reached an understanding with Smith's supporters that gaining subpoena power from the state would be too time-consuming, because a decision from the state would probably not come until this summer.
He said that the committee will have many of the other powers requested by Smith's backers, such as the ability to record interviews and select police investigators, even if those are not outlined in the resolution.
"Although this and some of the other fine points may not be spelled out in the resolution, the Council and the citizens have my assurance that things will be done as they requested," Garrity wrote.
Garrity said that the city intends for the review to be independent.
He said that the need for autonomy was highlighted by the police department's administrative review that was released in August.
About two weeks later, Garrity withdrew that report after learning that one of the two officers assigned to the review had supervised the lead detective in the case; he had specifically told the police department to assign investigators with no connection to the case. He also said that the report was not thorough.
Garrity agreed to several changes to make the committee more independent from the city manager's and city attorney's offices, including an assurance that the panel's report is not edited by any city agency, state office or attorney.
Smith's supporters said that this autonomy is important because Garrity and Carmon have a conflict of interest.
"The city attorney is a woman of unquestioned integrity and competence and who is widely respected. Nevertheless, she has a profound conflict of interest in this case," read a document they gave to the city leaders at the Monday meeting. "She and her department are being asked to help the committee expose facts fully that may be used against them in civil matters."
In another unusual twist, the resolution that the city council will consider also says that Police Chief Pat Norris will ask the N.C. Innocence Inquiry Commission to review the case.
The General Assembly created that commission last year (*SEE CORRECTION) as a way to examine claims of innocence by people who have been convicted. But with only three staff members, the commission already has a backlog of cases.
Should Norris ask the commission to review the case, she would essentially make herself an advocate for Smith.
Norris would have to put in writing what new evidence exists and explain why she thinks that Smith might be innocent.
"It means they're writing to us and saying, 'I have some information about this case, and it looks like there's some new evidence and the person might be innocent,'" said Kendra Montgomery-Blinn, the commission's executive director.
Norris said she is not going that far. "No, I'm not saying that I think Kalvin is innocent,'' she said, "but there are folks in the community who think that he is."
THE SILK PLANT FOREST CASE: A TIMELINE
* DECEMBER 1995: Jill Marker is found beaten and nearly dead in the Silk Plant Forest store off Silas Creek Parkway.
* DECEMBER 1997: Kalvin Michael Smith is convicted of assault. He is serving a minimum sentence of 22 years and 10 months.
* JULY 2003: The Innocence Project at Duke University begins investigating Smith's case.
* NOVEMBER 2004: The Winston-Salem Journal publishes a five-part investigation into the case, pointing out serious flaws in the police work and questioning Smith's guilt.
* SPRING 2007: Jim Coleman, a faculty adviser to the Innocence Project, says that District Attorney Tom Keith has stonewalled requests for information after he had publicly pledged to assist.
* SUMMER 2007: Coleman says he has affidavits from several witnesses who say that the police coerced them into giving their statements that implicated Smith.
* AUGUST 2007: Keith begins questioning police officers about how they investigated the Marker case.
* AUGUST 2007: The Winston-Salem Police Department releases an internal review of the case. The city manager withdraws it two weeks later, saying that it was not thorough and that the police department violated his directive that it not be conducted by officers connected to the case.
* OCTOBER 2007: The Winston-Salem City Council agrees to create the Silk Plant Forest Citizen Review Committee to determine whether police officers who investigated the case followed proper policies and procedures.
* DECEMBER 2007: The State Bureau of Investigation agrees to help Keith's investigation by conducting interviews for him.
* FEBRUARY 2008: A group of advocates for Smith lobbies city leaders to make the citizens committee independent of the city.
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