News
Email
Print
Filing argues against trial
Attorney general says Smith's claims are not sufficient
ADVERTISEMENT
Published: July 23, 2008
Kalvin Smith should not get a new trial to prove that he is innocent of the brutal beating of Jill Marker in 1995, the N.C. Attorney General's Office says in a new court filing.
The attorney general's office said that a motion submitted by Smith's attorneys in April for a new trial raises issues that he already brought up in 1999 when he filed his first request for a new trial. That motion was rejected.
Even though Smith's trial attorney claims that he was never shown a video in which Marker failed to pick Smith out as her attacker, that video should not lead to a new trial, the attorney general's office wrote in its response, which was filed Friday.
"Defendant's so-called newly discovered evidence goes nowhere near proving his factual innocence. All of Defendant's claims are without merit and should be summarily denied," the response said, referring to Smith.
Smith's current attorney, David Pishko, said he has until Aug. 18 to respond to the state's filing.
"We're disappointed that the attorney general has decided to try to defend that conviction," Pishko said.
A hearing scheduled for the week of Sept. 29 will determine whether both sides need to put on evidence for a judge, who would then decide if Smith should get a new trial.
Smith is serving a sentence of at least 23 years for the attack on Marker, which occurred Dec. 9, 1995, at the Silk Plant Forest, a store on Silas Creek Parkway where she worked.
Marker was hit on the head 20 times. She suffered skull fractures and permanent brain damage, and later went blind. She was pregnant at the time, and gave birth to her son while in a coma.
On April 29, attorneys for Smith asked for a new trial. They allege that Smith was wrongfully convicted because of evidence withheld by authorities, false evidence, an ineffective defense attorney and other violations of his rights.
Smith's motion said that during a videotaped interview on Oct. 31, 1996, Marker appeared to identify a man with no connection to the case as her attacker, that she failed to identify Smith and that she also appeared to identify a man police once had pursued as a suspect.
William Speaks, Smith's trial attorney, has signed an affidavit saying that he was never shown the part of the interview in which Williams showed Marker the photo lineups.
He has said that if he had seen that interview, he would have used it to discredit Marker's ability to identify her attacker.
The lead police detective on the case, Don Williams, failed to document in writing any of the lineups shown to Marker during the videotaped interview.
The transcript of the videotape ends after the first part of the interview. Prosecutor Mary Jean Behan filed a notice in court saying that the transcript summarized the video.
In its filing, the attorney general's office argues that Speaks is mistaken and was shown the full video. To support its case, the state included an affidavit from Eugene Benjamin, a doctor retained to help Speaks defend Smith.
Benjamin said in his affidavit that he remembers seeing a videotaped interview in which Marker was shown the photos.
"It was my understanding that the defendant (Smith) was included in one of the line-ups, but I do not know that with certainty," Benjamin wrote, adding that he doesn't remember if Marker identified anyone.
The attorney general's office said in its response that even if Speaks is right and he wasn't shown the videotape, it doesn't meet the legal standard for a new trial. Smith's attorneys have to show that he has evidence that would have led to a different verdict if it had been known during his trial.
The response also said that the photo lineup wasn't presented properly to Marker by Williams, the detective who conducted the interview. He showed her photos on Marker's left side, closer to the eye blinded by her attack, the response said.
The video "does not show, as (Smith) alleges, that Ms. Marker failed to identify him as her attacker during this photographic lineup," the state's response said. "Rather, it indicates that she simply could not clearly see what had been shown to her."
Prosecutors could have countered the videotape, the response said, because Marker appeared to identify Smith as her attacker in court.
Williams went back to Marker just before the trial and showed her another photo lineup. He made a detailed written report of that lineup, in which he said that she identified Smith as her attacker. But Williams did not videotape that interview.
Williams is now retired, and since 2004, he has declined to discuss the case.
Marker's ability to recall the attack and identify her attacker, before and during the trial, has been a persistent question in the case.
A five-part investigative series of the case by the Winston-Salem Journal in 2004 quoted doctors as saying that it would have been highly unlikely, given the severity of her head injury, for Marker to identify Smith years later at trial. The series identified numerous other issues with the work of police and prosecutors on the case.
The Innocence Project at Duke University Law School has spent several years investigating Smith's case. The project uncovered much of the new evidence cited in the motion, which Pishko filed on Smith's behalf.
Smith was convicted largely on Marker's appearance in court and her apparent identification of him, as well as the testimony of several witnesses. The motion filed by Smith includes affidavits from two of three key witnesses prosecutors called on. The two say that they were coerced by police and that they recant their testimony.
The attorney general's response says that even if the new statements by those witnesses are accurate, it would not be enough to warrant granting Smith a new trial. Also, most witnesses gave different statements to police, including statements in which they denied knowing anything about the incident. Jurors had the chance to weigh those conflicting statements and chose to believe the prosecution's case, the response said.
Last year, the city of Winston-Salem decided to start a separate review to investigate whether mistakes were made in the Silk Plant Forest case.
But its first effort, an 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 into the case. The panel is now in the early stages of its work.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
Email
Print
