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State AG has request for Marker case retrial
Keith asked office to take case
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Published: May 15, 2008
The N.C. Attorney General's Office will respond to a request for a new trial for Kalvin Michael Smith, who was convicted in the 1995 beating of Jill Marker at the Silk Plant Forest store in Winston-Salem.
Smith's attorney, David Pishko, said that Judson D. DeRamus Jr., the chief resident judge for Forsyth Superior Court, entered an order yesterday acknowledging that James Coman, a special deputy attorney general, will represent the state rather than the Forsyth County district attorney, Tom Keith.
Keith had asked the attorney general's office to take the case because of allegations of improper actions by Keith's office. Judge Richard L. Doughton of Alleghany will decide whether Smith deserves a new trial.
"Anytime there is an allegation or potential for one of our people to be a witness, it crosses some ethical lines for us," Keith said. "When they made allegations that one of my assistants failed to do something or did something wrong … it would be improper for us to stay in this case."
Smith is serving a minimum of 23 years in prison after he was convicted in 1997 in the beating. Marker, who was pregnant at the time of the attack, suffered brain damage from being hit in the head 20 times. She gave birth to a healthy boy while in a coma.
Smith's supporters have said that his case was marred by bad police work and prosecutors who ignored conflicting evidence. A series of stories in 2004 in the Winston-Salem Journal raised questions about the case as well.
The series showed, among other things, that police stopped pursuing the original suspect once he left the city. It also discussed Marker's ability to identify Smith, given her injuries, and included the information that the lead detective deliberately withheld some evidence from defense attorneys.
Attorneys representing Smith asked for a new trial April 29 -- in a motion that alleged that Smith was wrongfully convicted because of withheld evidence, false evidence, an ineffective defense attorney and other violations of his rights.
Pishko called it "appropriate" that the attorney general's office is handling the state's response to the motion.
"It is not unexpected," he said. "We knew when we filed the motion making those allegations that it was likely that he (Keith) would ask the attorney general's office to look into the case."
The state will have until July 18 to file a response to the motion for a new trial. An initial hearing that had been scheduled for June 30 has been moved to Sept. 29, so the attorney general's office has enough time to review the case and prepare a response.
Keith said he has sent the attorney general's office hundreds of pages of documents.
The Innocence Project at Duke University Law School took up Smith's case in 2003. Jim Coleman, the law professor who heads the project, said yesterday that Keith's office was "too personally involved" in the case to handle it.
"What I would like to see, speaking personally, is for someone who will take the case seriously and will look objectively at the evidence," Coleman said. "If the attorney general does that, then that would be great."
■ Wesley Young can be reached at 727-7369 or at wyoung@wsjournal.com.
■ Journal reporter Blair Goldstein contributed to this article.
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