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Police defend work in Silk Plant Forest case
No one pressured Smith to make a statement, they say
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Published: January 8, 2009
Closing arguments are expected to start this morning in the hearing on Kalvin Smith's request for a new trial in the Silk Plant Forest assault case.
Judge Richard Doughton has not indicated whether he expects to rule on the case today or issue a ruling later.
Yesterday, Winston-Salem police officers defended their work in the case, saying that no one pressured Smith to make a statement, nor any of the witnesses who testified against him.
Retired police Lt. Randy Weavil testified that Smith's interview with police in January 1997 did not unfold as Smith described it in testimony Tuesday. Smith detailed what he said were a series of threats from then-Detective Don Williams, including one to arrest Smith's girlfriend.
"It was not confrontational at all," said Weavil, who said he was in the room for most of the interview.
"You didn't make any threats or promises?" asked Mary Carla Hollis, an assistant attorney general.
"No ma'am," Weavil replied.
None of Smith's claims in asking for a new trial directly involve his interview with police. Smith's attorney, David Pishko, has argued that Smith's testimony supports the accounts of Eugene Littlejohn and Pamela Moore, two witnesses against Smith at trial. On Monday, Littlejohn and Moore testified that they lied at Smith's trial, and did so because police threatened them and told them what to say.
In testimony yesterday, Weavil, police Sgt. Rob Cozart and former Detective Lonnie Maines all said they never pressured any witnesses, nor did they see Williams, the lead detective in the case, pressure anyone.
Smith was convicted in 1997 of beating Jill Marker in 1995 inside the Silk Plant Forest, a store off Silas Creek Parkway. The attack left Marker with permanent brain damage.
In April, attorneys filed a motion asking for a new trial for Smith, alleging that prosecutors relied on false testimony, that they withheld a videotaped police interview of Marker and that William Speaks, Smith's trial attorney, was ineffective.
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 killing of Deborah Sykes. Hunt served nearly 19 years in prison before his exoneration.
Smith has a high legal bar to clear, having already lost appeals, including a motion he filed himself for a new trial in 1999. He lost that motion in 2000.
A key claim in this week's hearing is that Speaks was not shown a videotaped interview from October 1996, which was the first time Marker saw photo lineups of suspects. Speaks testified that he does not think that he saw it, but he said he can't be sure.
Eugene Benjamin, a neurologist called by Speaks to testify at the original trial, said yesterday that both he and Speaks were shown the taped interview.
"He was right beside me," Benjamin said of Speaks.
Smith was included in one lineup that Marker was shown, but she did not pick him out; in another lineup, she appeared to indicate that an earlier suspect in the case had been in the store that night.
Smith's attorneys have made two claims about the tape:
□ If Speaks was not shown it, prosecutors violated Smith's rights by not sharing evidence that could help his defense.
□ If Speaks did see it, he was obligated to get the photos and challenge Marker's ability to identify a suspect, an expert witness for Smith testified Monday.
Speaks said that it would not have changed his defense strategy because he wanted to keep Marker on the stand as little as possible.
Benjamin testified that when he saw the video in 1997, he did not think Marker identified anyone.
But when he was shown the tape yesterday morning, he agreed with Pishko that it did appear that Marker identified someone, later shown to have been an earlier suspect in the case.
Cozart and other witnesses said that Littlejohn and Moore told police that they were telling the truth when they implicated Smith.
Pishko asked witnesses about polygraph tests and inconsistencies in Littlejohn's various police statements. His argument is that they show that there were clear signs that Littlejohn was lying.
Maines testified that in one polygraph Littlejohn denied participating in the robbery "in any way" and in another said he did not see Smith hit Marker in the head. Both were scored as truthful denials.
What he testified to at trial -- that he saw Smith put his hands on Marker and then Littlejohn saw nothing else, because he left -- was not specifically asked during the polygraph tests.
Smith was also given a polygraph in July 1996, when police first interviewed him.
Williams' report says that Maines gave the polygraph and Smith was truthful when he denied involvement. No record showing results from a polygraph by Maines exists.
There is a report by Randy Patterson, another police officer, which said that Smith's test was inconclusive. Maines testified yesterday that Patterson did the polygraph.
Maines said he found Patterson's test about a year ago, during a review of the case by Winston-Salem police. He said that Patterson made mistakes in scoring results because Patterson was unfamiliar with the newer model polygraph machine he was using.
When Maines scored it, it showed that Smith was deceptive when he denied involvement.
Asked to explain how one test can go from being reported as truthful, then inconclusive, then deceptive, Maines said, "Human error."
Some of Smith's supporters in the courtroom groaned.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
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