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Kalvin Smith's trial attorney: Video would make no difference
Journal Photo by David Rolfe
Kalvin Smith (left) and his attorney, David Pishko, listen during a hearing on Smith's petition for a new trial in the beating in 1995 of Jill Marker.
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Published: January 6, 2009
Kalvin Smith's trial attorney acknowledged yesterday that he might not have known about a videotape critical to the defense of his client, who is fighting for a new trial.
But, he said, even if he had known about the videotape, in which Jill Marker, the woman Smith was convicted of beating, failed to identify him as her attacker, he would not have altered his defense of Smith.
William Speaks, Smith's trial attorney, testified that he isn't sure he saw the second half of a videotaped interview from October 1996, in which Marker was shown photographs and failed to pick Smith.
Marker appeared to identify him at trial, when she was wheeled in front of Smith and asked if he was the man who hurt her.
But Speaks said he wouldn't have used the October 1996 interview to attack a victim who could only moan and nod her head in a swaying motion in response to questions, he said.
"You have to picture the scene, she was rolled into the courtroom on a hospital bed," he said. "I just wanted her out of there as quick as I could. If I could do it again, I would have said ‘No questions.'"
Speaks' testimony came during the first day of a hearing in Forsyth Superior Court on Smith's request for a new trial.
Smith was convicted in 1997 of hitting Marker on the head about 20 times with a blunt object inside the Silk Plant Forest in 1995. The attack left Marker with severe brain injuries.
Smith's case represents the most prominent allegation of wrongful conviction in Winston-Salem since that of Darryl Hunt, who was freed in 2003 after a DNA test linked another man to the 1984 murder of Deborah Sykes. Hunt served nearly 19 years in prison before his exoneration.
The Innocence Project at Duke University has been working on Smith's claims of innocence since 2003. In addition, the Winston-Salem Journal published a five-part series in 2004 about problems with the police investigation of the case, as well as questions about Marker's ability to identify Smith or even recall the attack.
Smith asked in April for a new trial, claiming that his conviction was caused by lying witnesses, an incompetent defense attorney and information withheld by prosecutors.
One key issue is whether prosecutors showed Speaks the entire videotape from the October 1996 interview and, if so, why he did not ask for the photos Marker was shown and find out why she didn't choose Smith. Marker nodded in the video when asked if she could identify her attacker from a photo.
David Pishko, Smith's attorney, called Joe Cheshire, a Raleigh criminal-defense attorney, as an expert witness to attack the defense presented at trial.
"I believe not having (asked for the photos) is not just inexcusable, but it led to further errors in the trial of Mr. Smith that, in all likelihood, got him convicted," Cheshire testified yesterday.
Cheshire said that Speaks' work on the case fell short of a reasonable defense of Smith.
"When Ms. Marker came into the courtroom and they wheeled her in front of (Smith), I think most experts would believe she was going to identify him one way or the other," Cheshire said. "That identification, if it can be destroyed, it has to be destroyed."
Judge Richard Doughton ruled that he wouldn't consider Cheshire's testimony in his deliberations, citing past cases that say it's up to the judge to decide whether to allow a legal expert to testify.
Doughton let Pishko offer Cheshire's testimony as part of the court record so that if Doughton rules against Smith and Smith appeals, an appeals court will know what evidence Doughton decided to keep out.
Two other witnesses called by Pishko said yesterday said that they lied at Smith's trial when they testified against him.
Eugene Littlejohn and Pamela Moore both said they didn't remember most of their differing statements to police and that they testified against Smith only because of police threats.
Moore, Littlejohn's former girlfriend, testified at trial that she heard Smith once say he had "to beat up a lady to get out of the store."
She also testified at trial that no one had told her what to say. But yesterday, she said that officers told her to say she heard the statement from Smith, when she actually heard it from Littlejohn.
"I was young, I was scared, I don't know," Moore said when asked why she lied. "I had some other charges and … they told me they was going to drop some charges that I had if I testified."
Littlejohn said that Don Williams, the lead detective in the case, came by his house every day for a week, picking him up and taking him to the police station to talk. He said he changed one version of his story at Williams' suggestion because it included a woman tagging along with Smith who didn't meet Smith until after the attack.
"I didn't know nothing about no Jill Marker case at all," Littlejohn said. "I just told him what he wanted to hear so he would leave me alone."
Littlejohn's testimony at trial was that he and Smith went to the store and Smith went inside and grabbed the store clerk. Other than Marker, he was the only person who claimed to have seen Smith at the store. He said that the threat of being charged in the case led him to lie.
His testimony yesterday brought out a skeptical response from Danielle Marquis Elder, one of two attorneys from the N.C. Attorney General's Office arguing against a new trial.
"How in the world did that keep you from being charged if you put yourself at the scene where this occurred?" Elder asked.
"That's what they told me to say," Littlejohn replied.
Williams is expected to testify during the hearing, which is expected to run at least into Wednesday.
Williams, who was in court yesterday under a subpoena from Pishko, declined to comment to a reporter.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
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