Keith cuts ties with new Marker-Case Probe

District Attorney Tom Keith says he no longer wants to work in concert with the Innocence Project at Duke University Law School to examine a 1995 attack on a clerk at a store off Silas Creek Parkway.

Keith said he will continue to review the beating of Jill Marker in the Silk Plant Forest store, but he said he is not eager to continue working with the group at Duke Law School, which says it has uncovered new evidence in the case.

Kalvin Michael Smith was convicted in the attack on Marker but has maintained his innocence. He has served more than 10 years of a minimum sentence of 22 years and 10 months in prison.

Keith said Friday that he was stung by criticisms from Jim Coleman, a Duke law professor and adviser to the innocence project, who twice in recent months has compared actions by Keith's office to those of disgraced former District Attorney Mike Nifong of Durham.

"It's unfortunate that an institution esteemed as Duke University would allow one of their professors to make public comments like that," Keith said. "Every time I pick up the newspaper, he's sticking it to me. That doesn't make me want to go down and walk down the path and hold his hand.

"I just don't want to deal with him," he said. "Now, I'll respond to his requests.... A lot of things about my job, I don't like - it's my duty."

Coleman said he wouldn't do anything differently in dealing aggressively with Keith, who he said has shown indifference to the possibility that his office helped convict an innocent man.

"I think he's ambivalent about this," Coleman said of the case. "My problem is, I think that he and (Police Chief) Pat Norris stopped being concerned about Kalvin and whether there had been a miscarriage of justice. And when that happened, what was I supposed to do, ignore it?"

Now, both sides are taking new steps.

Keith said he contacted a law-enforcement agency just before Thanksgiving to ask for an investigator to conduct interviews, possibly of the assistant prosecutors who handled the case and of Smith. He declined to name the agency.

Coleman, meanwhile, said that the innocence project is switching from examining evidence of innocence to exploring legal issues that could be grounds for a new trial.

"Basically I felt that I had to make every effort to try to work with (Keith) and the police, because in the end, there was a lot of really important evidence we were able to obtain because we had access to his files," Coleman said.

Marker was struck on the head nearly 20 times with a blunt object on Dec. 9, 1995, in the back of the store she managed. Money was missing from the cash register; the weapon was never found. Marker suffered brain damage and later went blind. She was pregnant when attacked and gave birth in a coma to a healthy son.

Coleman spoke at a public forum in Winston-Salem on Nov. 14. He outlined what he said is evidence that can prove Smith's innocence and said that the handling of the case by Keith's office is comparable to the way that Nifong handled the investigation of three lacrosse players at Duke University who were falsely accused of rape. Nifong later resigned and was disbarred after the N.C. Attorney General's Office said that the innocent players were victims of Nifong's "tragic rush to accuse."

The change in the relationship between Keith and Coleman caps nearly three years of the innocence project's having presented Keith with information about the case and asking him to investigate it.

Coleman has said that Keith at first appeared openly eager to work with the project, even offering to do things that Duke hadn't asked for, such as call the State Bureau of Investigation for assistance. (Keith later said he was told that the SBI couldn't help, because it didn't have the manpower).

But Keith began stonewalling on requests for information, Coleman said, once the innocence project began asking questions about why certain evidence that could have been important to Smith never made it to Smith's defense attorney before trial.

Winston-Salem police at one point agreed to let the innocence project interview some detectives who worked on the case, but the interviews were abruptly canceled.

Keith has said that Coleman and the law students assisting him since 2003 obtained unprecedented access to files of the Winston-Salem Police Department and the Forsyth County District Attorney's Office. Keith said he felt good about the review at the start and was open- minded, but he feels that Coleman didn't respect him.

Keith and Coleman haven't spoken since mid-October.

The difficulties illustrate the differences between the two lawyers. Coleman has read every document in the Smith case and uses those documents in a wrongful-convictions class at Duke to teach students to analyze facts. Keith has said that he paid little matter to the case until recently because his job demands are many. He put an assistant prosecutor, David Hall, in charge of reviewing the files.

Keith said he will continue his reinvestigation. He said he is awaiting a report from a neuropsychiatrist who recently went to Marker's home in Ohio to evaluate her memory. Keith got a judge to grant the evaluation.

"I'm not going to cover up, nor am I going to vacate it (the conviction) from pressure. I'm an independent official," Keith said.

He said yesterday that a member of the N.C. State Bar's ethics committee advised his office that he should not talk publicly about the case. If there is a new trial for Smith, Keith said, his comments could prejudice the proceeding.

Keith said he agrees that Smith's rights were violated when his attorney never received information about a photo lineup. But he blamed the detective for not writing a report and documenting the photo lineup in writing.

The lead police detective on the case, Don Williams, failed to document in writing a photo lineup that he showed to Marker on Oct. 31, 1996, in Ohio, where she lives with her parents and receives 24-hour care.

That lineup is among several things, the innocence project says, that were not provided to Smith's defense before his trial in December 1997.

According to Coleman and the innocence project:

- Police stopped investigating an early suspect in the case, Kenneth Lamoureux, after he moved out of town. Lamoureux had gone to the Silk Plant Forest several times, and eyewitnesses reported that he had been in the store before the attack.

- Police apparently did not know that just minutes before the assault, Marker had told a customer that the back of the store was "dangerous," and did not investigate the statement. Police were not aware that Marker was having a phone conversation just minutes before she was attacked, and prosecutors weren't interested in investigating what the call was about.

- Keith's assistants called witnesses against Smith who had given inconsistent versions of their stories, but they ignored a witness whose testimony contradicted the state's witnesses. The state's witnesses have since signed affidavits for Coleman saying that they were coerced into testifying to avoid criminal charges against them.

- The state's key witness, Eugene Littlejohn, testified that he and Smith went into nearby Toys "R" Us after the attack and stole electronic games. But prosecutors knew that neither Littlejohn nor Smith appeared on a Toys "R" Us surveillance video showing people entering the store. It's not clear what happened to the tape, but it is not among other evidence.