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Judge to hold hearing on Smith plea for retrial
Trial attorney's affidavit may weigh heavily in decision regarding the petitioner's arguments
William Speaks, Kalvin Smith's trial attorney, has changed his position on whether he saw parts of a videotape showing that the main prosecuting witness could not pick Smith out of a photographic lineup.
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Published: September 29, 2008
A judge today will weigh Kalvin Smith's request for a new trial, in what will either be a step toward his freedom or a defeat in his effort to be cleared in a brutal 1995 assault on a pregnant store clerk.
Judge Richard Doughton is being asked to decide if Smith was denied a fair trial in 1997. Smith's attorneys say that witnesses prosecutors relied on have recanted, that police and prosecutors withheld evidence and that his trial attorney didn't do his job.
On the eve of the hearing, Smith's trial attorney has changed his account about never having been shown by prosecutors part of a videotape in which Jill Marker, the woman Smith was convicted of beating, fails to pick Smith out of a photographic lineup she was shown before Smith was arrested.
From 2005 until last week, Williams Speaks, Smith's trial attorney, had maintained he never knew about those lineups.
If he had, he would have asked for the photos, found out Marker could not identify Smith and used that at trial to discredit her ability to later identify Smith. That's what he said in interviews with the Winston-Salem Journal and the Innocence Project at Duke University Law School, which investigated Smith's case.
But Speaks said in a new affidavit filed Wednesday that he no longer believes he did not see the video.
If Speaks was actually shown the videotape, it would seem to strengthen the idea that Speaks was an ineffective attorney, said Jim Coleman, a faculty adviser for Duke's Innocence Project.
"It is beyond incompetence not to ask for the lineups," Coleman said.
Speaks said in the latest affidavit that he has no reason to doubt Eugene Benjamin, a doctor Speaks consulted in the case. Benjamin told prosecutors that he and Speaks saw the videotape of the lineups, though he could not remember if Marker identified anyone.
"My recollection was refreshed," Speaks said in the latest affidavit about reading Benjamin's account, adding that he does not remember how much of the video he watched.
"In fact, based upon my professional relationship with Dr. Benjamin, I am confident that his recollection is better than my own," Speaks said. Speaks did not respond to phone messages left at his office and home.
David Pishko, Smith's attorney, said he had no comment about Speaks.
"We'll be in court on Monday," Pishko said. "We'll comment on it then."
A spokeswoman for the N.C. Attorney General's Office did not return a request for comment.
In today's hearing, Doughton could decide to give Smith a new trial, reject his request, or hold another hearing to resolve disputes over the evidence.
Pishko asked for a new trial in a filing in April. The attorney general's office has said that Smith doesn't deserve a new trial because many of the issues he raises were brought up in 1999, when he filed his first request for a new trial. That motion was rejected.
The other issues don't meet standards needed for a new trial, the attorney general's office has argued. Benjamin's affidavit and Speaks' new affidavit are both part of filings by the attorney general's office.
The videotape at issue in Speaks' different affidavits was a police interview with a severely wounded Jill Marker on Oct. 31, 1996, three months before Smith's arrest.
"I had no knowledge whatsoever that Detective Williams had shown photographs to Ms. Marker on October 31, 1996," Speaks said in an affidavit he signed April 24, 2007, and filed in support of Smith's motion for a new trial.
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 series in the Winston-Salem Journal in 2004 quoted doctors as saying that it would have been highly unlikely for Marker to be able to identify Smith years later at trial, given the severity of her head injury. In the December 1995 attack, Marker was struck about 20 times in the head, with an object that was never recovered by police, while working in the Silk Plant Forest, a store where she was a manager.
Duke's Innocence Project, which spent several years investigating Smith's case, uncovered the second of two parts to the videotaped interview.
In the first part of the interview, lead detective Don Williams asked Marker several questions, which he documented and which were in a transcript given to Speaks.
The last item written in the report was the question: "If you could see the person that hurt you from a photograph, could you point to that person?" Williams wrote that Marker responded that she could.
Then the written transcript ends. Mary Jean Behan, an assistant district attorney, filed a notice in court saying that the transcript summarized the video.
Speaks' 2007 affidavit supported Smith's allegation that prosecutors did not turn over information they are legally required to share with the defense. Speaks indicated in his new affidavit that his change of mind supports the idea that Behan did not knowingly withhold a section of the videotape.
But it does not explain why the photographs were not given to Speaks, and the transcript was incomplete.
"Based upon my extensive professional dealings with Assistant District Attorney Behan both before and after these events, I am confident that she would not have withheld from (sic) any portion of the questioned videotape from me," Speaks said in the affidavit.
In the second part of the videotape, Marker was shown photo lineups.
She appeared to identify a man with no connection to the case as her attacker, she failed to identify Smith and she also appeared to identify Kenneth Lamoureux, a man whom police once had pursued as a suspect.
During Smith's trial, Speaks did not question Marker's later identification of Smith, nor did he bring up the earlier videotape. If he had not been shown the complete videotape, which is what he had maintained, it seems unlikely he would have known to ask for the lineup photos.
But if he was shown the complete video, he had a duty to get the photos, especially because at the same time prosecutors had given him reports from an interview they conducted in September 1997, Coleman said.
In that interview, which was after Smith's arrest and three months before trial, Marker identified Smith, according to Williams. Williams documented Marker's identification in a report, but he did not videotape that 1997 interview.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
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