SBI to be asked to revisit probe of 1995 beating

Forsyth's district attorney, Tom Keith, said yesterday that he would ask the State Bureau of Investigation to help investigate what a defense attorney said is new evidence in the near-fatal beating of a store clerk in 1995.

Kalvin Smith has been in prison since 1997 after his conviction for assaulting Jill Marker, an assistant manager at the Silk Plant Forest, which sold artificial plants.

Marker, who was four months pregnant and later gave birth while in a coma, suffered skull fractures and permanent brain injury in the attack. Smith has maintained his innocence.

"We have evidence that shows she was not able to identify Kalvin before he was arrested and charged with the crime,'" said Jim Coleman, a faculty adviser to the Duke Law School Innocence Project.

Although Coleman declined to be specific, he indicated that the evidence relates to photo lineups shown to the victim, Jill Marker, and whether she identified Smith from those images.

Coleman has been investigating the case for three years, gathering evidence to show that Smith was wrongly convicted in attack, which occurred in December 1995.

Keith said that he has decided to ask the SBI to help Coleman investigate the case, and that he intends to meet with Coleman this month.

"If he wants us to do an investigation, I've offered that we have the SBI standing by," Keith said. "This is cooperative. It's not the usual confrontational, sandbagging games."

Coleman said he plans to present evidence to Keith that discredits the evidence that prosecutors used at Smith's trial in 1997. He said that an SBI agent could help him track down and interview witnesses.

"This was an offer that came in the last few days," Coleman said. "It came as a surprise, but as a welcome surprise."

Police Chief Pat Norris said yesterday that her department has not reopened the case but has been sharing its files with the Innocence Project, as it has done for the past year.

The attack at the Silk Plant Forest attracted national attention because Marker, then 33, was pregnant when she was struck 20 times in the head as she closed up the store for the night. Ten years later, she is blind, partially paralyzed and unable to walk without assistance.

The crime was unsolved until Smith's girlfriend called police in 1997, more than a year after the attack. He signed a statement saying that he went to the store with another man to steal money, but he denied beating Marker. She had identified Smith from a photo lineup after his arrest, and three friends had eventually testified that they heard him brag about the crime.

Coleman said he has evidence that detectives showed Marker a photo lineup that included Smith's picture almost a year before she identified him. Coleman said that Marker did not identify Smith the first time, in October 1996, but may have identified another man in a separate photographic lineup.

Smith, in prison at Caledonia Correctional Institution, has proclaimed his innocence since his trial in 1997.

The Winston-Salem Journal published a five-part series in 2004, "Attack at the Silk Plant Forest,'' that raised questions about the investigation and prosecution of the case.

The stories examined the interrogation methods police used to interview Smith and other witnesses and quoted medical experts who said that Marker's brain injuries were so extensive that her memory of the attack would not have been reliable. The stories also showed how police stopped investigating an earlier suspect when he moved out of town and zeroed in on Smith once the girlfriend presented him as a suspect.

Coleman said that in the last year, he has collected new evidence that discredits the case against Smith, some from files that the Winston-Salem Police Department has shared with him.

For example, three witnesses testified that they heard Smith brag about beating Marker. Coleman said he has a statement from a fourth witness that was given to police two days before the trial began. It contradicts the other witnesses. In that statement, the witness said that one of the other witnesses accused Smith of the crime and that Smith denied it.

Coleman said that this fourth witness did not testify. He does not know whether prosecutors or Smith's trial attorney knew about the statement at the time of the trial.

He said he has told Keith about the new evidence in the case. Keith said yesterday that so far he has no reason to believe that his office prosecuted the wrong man.

"In my mind, what we've got so far doesn't undermine anything," Keith said. "If Jim comes up with a really good suspect, then the SBI would follow."

Keith said that he has agreed to cooperate with Coleman to test a process for dealing with claims of actual innocence.

The Chief Justice's Commission on Actual Innocence, which was convened by Beverly Lake Jr., a former chief justice of the N.C. Supreme Court, has asked the General Assembly to set up a panel that would investigate claims of innocence, such as the one being made by Smith.

Phoebe Zerwick can be reached at 727-7291 or at pzerwick@wsjournal.com