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Silk Plant Forest Disclosure: Clothing, bloody cardboard, cigarettes were not checked for DNA, police chief says
Journal File Photos
Jill Marker (shown in 2004) was severely beaten in 1995 at the Silk Plant Forest. Kalvin Smith, convicted of the attack, maintains his innocence.
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Winston-Salem police acknowledged yesterday that some evidence in the 1995 beating of Jill Marker at the Silk Plant Forest store was never tested, raising questions about whether more DNA evidence might exist.
Police Chief Scott Cunningham said that an internal review into the police investigation revealed that Marker's clothing, a piece of cardboard with blood and hair on it, and cigarette butts were never tested for the presence of DNA.
The evidence, which was not admitted at trial, was listed on inventory sheets of physical evidence seized in 1995.
Cunningham said that the items will be sent to labs for testing but didn't know how long the testing would take.
He also said he will put in place new procedures that will require detectives to document interviews in supplemental reports. And under the new guidelines, interviews with suspects and witnesses will be recorded from start to finish. Recorders will not be turned off at any point during interviews.
In 1997, Kalvin Michael Smith was convicted of beating Marker and is serving 23 to 29 years in prison. He has maintained his innocence and is appealing his case in the federal courts. The only DNA evidence found at the crime scene belonged to Marker.
In 2007, Tom Keith, the Forsyth County district attorney at that time, said he had directed the police department to send cigarette butts and other evidence to the state's crime lab to be tested for DNA.
Keith, who retired this past November, said yesterday that he and Assistant District Attorney David Hall had asked the police department to examine its evidence in the case to make sure everything had been tested.
District Attorney Jim O'Neill, who took Keith's place, declined to comment yesterday.
Cunningham declined to speculate on why some evidence had not been sent for testing.
"We aren't speculating why items were or weren't tested or why we discovered this," he wrote in an e-mail. "The internal committee is obviously taking its review role seriously. Releasing additional details regarding the evidence would not be prudent at this time."
The discovery of untested evidence could affect Smith's case, but it could also have far-reaching implications for other criminal trials, said Carol Turowski, a co-director of Wake Forest University School of Law's Innocence and Justice Clinic.
"It's very significant, because the issue of the identity of the perpetrator is absolutely critical in this case," said Turowski, who is not involved with the Silk Plant Forest case.
She said that the discovery of untested evidence could result in other cases being revisited.
The news is the latest in a case that has come under intense scrutiny over the past few years, from the Innocence Project at Duke University, a five-part series in the Winston-Salem Journal in 2004, and the Silk Plant Forest Citizens Review Committee, which re-examined the police investigation.
The committee's final report, released in August, concluded that it didn't have any faith in the police department's work on the case. Separately, the committee voted 7-2 in favor of a statement that says it found no credible evidence that Smith was at the scene of the crime.
On Tuesday, Judge Richard Stone of Forsyth Superior Court ordered the release of the full report. The report will be released in 10 days unless there is an appeal, according to Stone's order.
The city has released parts of the report but withheld interviews with current and former police officers, including Don Williams, who was the lead detective on the case, because they contained personnel information protected under state law.
Guy Blynn, who led the citizens review committee, said that testing evidence that had been previously untested could be "tremendously important."
"Let's assume that the blood on her shirt or whatever she was wearing turns out not to be Kalvin Michael Smith's blood or her blood," Blynn said. "Then whose blood is it? Maybe, that blood is somewhere in the system, and we can identify whose blood is on her shirt. Or it may turn out to be Kalvin Michael Smith's blood."
He said that the police department's announcement was a "win-win-win" and that it validates the part of the committee's report that expressed a lack of confidence in how the investigation was conducted.
Smith's attorney, David Pishko, said he is glad that the department is sending the evidence out for testing.
"I think that's a positive step in trying to get to truth," he said.
Jim Coleman, the Duke law professor who heads the Innocence Project, said he had thought all the evidence in the case had been tested. "I wasn't aware that there was any evidence that had not been tested," he said. "I wonder why it wasn't tested before."
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