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Judge rejects plea; Kalvin Smith will not get a new trial
Journal Photo by Walt Unks
Sheila LeGrande, the mother of Kalvin Smith, answers questions outside the Hall of Justice after the conclusion of her son's hearing.
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Published: January 9, 2009
Kalvin Smith was left shaking his head slowly and emphatically yesterday as he grappled with a judge's decision not to grant him a new trial in the Silk Plant Forest assault case.
"It is my conclusion that the defendant has failed to prove his claims,'' Judge Richard Doughton said at the end of a four-day hearing in Forsyth Superior Court.
The reasons for Doughton's decision won't likely be known until late February or March, when his written order is expected to be filed.
Doughton announced his decision after David Pishko, Smith's attorney, and Danielle Marquis Elder, an attorney for the N.C. Attorney General's Office, made their closing arguments.
The rejection of Smith's request leaves him with the next step of asking a state appeals court to review Doughton's ruling. There is no automatic right to an appeals-court hearing. If Smith loses there, he could appeal to the N.C. Supreme Court.
Smith has been in prison for nearly 12 years since being convicted in 1997 in the beating of Jill Marker inside the Silk Plant Forest, a store off Silas Creek Parkway. The attack, in December 1995, left Marker with permanent brain damage, and she is now blind. Smith, who has long maintained his innocence, is serving a minimum sentence of about 23 years.
Smith talked with his attorney before being taken to the Forsyth County Jail yesterday.
"He was distraught," Piskho said. "He had high hopes and (is) very disappointed."
Elder declined to comment.
It brings to an end the State Bureau of Investigation's limited reinvestigation of the case, an SBI spokeswoman said.
The Forsyth County district attorney, Tom Keith, asked for the reinvestigation after Smith's attorneys filed a motion in April asking for a new trial.
"We think he made the correct decision," Keith said of Doughton.
Smith's supporters vowed to keep fighting.
"The question is how much longer will we have to endure this kind of nonsense and this injustice," said Larry Little, a professor at Winston-Salem State University. "Forsyth County is a tough cookie to deal with. We thought after Darryl Hunt that we were making a little progress, but this is deja vu all over again."
Smith's case is the most prominent allegation of wrongful conviction in Winston-Salem since the Hunt case. Hunt was freed in 2003, after serving nearly 19 years in prison for the 1984 murder of Deborah Sykes. A DNA test linked another man to the crime.
Smith's case was taken up by the Innocence Project at Duke University's law school in 2003, and also was the subject of a five-part investigative series in the Winston-Salem Journal in 2004 that raised questions about the work of police and prosecutors in the case.
Smith's attorneys argued this week that prosecutors relied on false testimony to get a conviction, that they withheld a videotaped police interview of Marker and that William Speaks, Smith's court-appointed attorney during his trial, was ineffective.
Eugene Littlejohn, whose testimony put Smith at the scene of the crime, said in testimony Monday that he lied at Smith's trial. Pishko argued that Littlejohn's statements to police kept changing and always had inaccuracies that should have shown prosecutors that he was lying.
Elder said that if Smith was right about the witnesses against him lying under police pressure, Doughton would have to believe that all the police and prosecutors who testified this week are liars.
"Could it be that every single person who's come before this court is lying in a conspiracy against Kalvin Michael Smith?" she asked. "Or could it be that (Smith) made a confession to police and that started this whole thing, and they went about their investigation and found corroborating evidence from his own friends?
"This is not a case that requires this court to send this case back so we can have confidence in the justice system," she said.
Smith gave a statement to police in which he said that he was at the store but that another man, whose name Smith later said he made up, hit Marker. He testified Tuesday that he gave the statement after police threatened to arrest his girlfriend and that police told him what to write.
A key point of dispute in the hearing was whether Speaks was shown a video in which Marker was shown a photo lineup that included Smith and failed to identify him. Speaks said he did not think that he saw it but wasn't sure.
A doctor who testified on Smith's behalf at trial contradicted Speaks, saying that he and Speaks both saw the video.
Police reports made no mention of photo lineups shown, nor was there any indication that police provided the photos to prosecutors or to Speaks.
But if Speaks did see the video, he should have asked for the photos and used them to question Marker's ability to identify Smith, Pishko argued. Marker was wheeled in front of Smith at trial and appeared to identify him as her attacker.
Speaks said he wouldn't have used the video anyway because he wanted to minimize the amount of time Marker, a sympathetic victim, spent testifying.
Smith's supporters have planned a candlelight vigil at 6 tonight in front of the Forsyth County Hall of Justice.
"I feel like right now that there is no justice system here," said Sheila LeGrande, Smith's mother. "The attorney general, all of them, they've covering each other's … I won't say it. I'm fed up."
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
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