Questions lead to review of 1995 beating case

The Winston-Salem Police Department has begun an administrative review of the near-fatal beating of Jill Marker in 1995 at a shopping center off Silas Creek Parkway.

The man convicted in the case, Kalvin Michael Smith, has maintained his innocence.

A lieutenant and sergeant are working full time from the office of Police Chief Pat Norris to review the case and the way it was handled, City Manager Lee Garrity said yesterday.

The review began about a month ago. It comes at the same time that an attorney for Smith is preparing a motion asking for a new trial. That motion will be based on evidence gathered since 2003 in an investigation by the Duke Law School Innocence Project.

Garrity said that he and Norris decided that the police should do their own review because of questions raised in the past few years.

The city's review will examine the evidence in the case, as well as whether police made any mistakes in their investigation, Garrity said.

"It's from A to Z," he said.

"I just told them that they take enough time to do a complete and thorough review."

The police department recently undertook a similar administrative review of the 1984 slaying of Deborah Sykes. Darryl Hunt was wrongly convicted in the killing and was exonerated in February 2004 after police and the State Bureau of Investigation found evidence that another man was the killer.

"This is probably the only other major case out there in recent years that there were any questions about," Garrity said of the attack on Marker, who now lives with her parents in Ohio.

Jim Coleman, a faculty adviser for the Duke Innocence Project, said it was an extraordinary step for the police to open a review.

"Our view is that he's innocent and that a competent investigation will demonstrate that," Coleman said. "I think they'll conclude exactly what we've concluded - which is that this person is not guilty of the crime."

There are two key issues in the case, Coleman said: That the defense wasn't given access to all evidence that would have helped Smith prove his innocence, and that witnesses who testified against Smith lied in court.

In addition to the Duke investigation, a series of stories in the Winston-Salem Journal in 2004 raised questions about the police investigation and prosecution of the case.

The stories examined the methods that police used to interrogate Smith and other witnesses, and quoted medical experts who said that Marker's brain injuries were so severe that her memory of the attack would not have been reliable. The stories also showed how police stopped investigating a suspect when he moved out of town and focused on Smith after his girlfriend presented him as a suspect.

Marker was an assistant manager at the Silk Plant Forest, a store in the Silas Creek Crossing shopping center that sold artificial plants.

She was hit on the head 20 times with a blunt object in the store Dec. 9, 1995. She suffered skull fractures, permanent brain damage and later went blind. Marker was pregnant when she was attacked and later gave birth while in a coma.

(*SEE CORRECTION) Marker's son lives with her and her family.

Police never found any physical evidence linking Smith to the crime. But he gave an incriminating statement in which he said he was at the scene, but said that he wasn't the attacker. Prosecutors ended up not using that statement during the trial.

A jury convicted Smith of assault with a deadly weapon with intent to kill inflicting serious injury in 1997. He was sentenced to serve a minimum of 22 years and 10 months in prison.

Coleman said in February 2006 that the Duke Innocence Project had found new evidence that could help Smith's case. He said that it related to photo lineups and whether Marker accurately identified Smith as her attacker when a detective showed her a lineup.

At first, Tom Keith, the Forsyth County district attorney, was cooperative with the Duke investigators, Coleman said. Keith met with Coleman in February 2006. He abruptly cut off contact with Coleman and the innocence project, however, and has not returned e-mails, Coleman said.

"Last year basically the DA stopped cooperating with us when we started to ask questions about whether an assistant in his office had knowledge about what appeared to be a tape interview that had been tampered with. And he, for a year, basically refused to answer the question," Coleman said yesterday. "It appeared that a tape had not been disclosed to the defense."

Keith "basically refused to tell us whether the assistant D.A. knew it, and at that point he terminated his cooperation with us," he said.

Keith was at a conference yesterday and not available for comment. He did not return phone messages.

The tape was of an interview with Marker conducted by a detective. The police department provided the tape to the Duke investigators as they did their review.

"There were two parts of it," Coleman said of the interview. "And it appears that only one part was ever disclosed to the defense.... And the question was whether the second part had been deleted from the copy shown to the defense. And the second part had important evidence on it."

A written police report about the interview makes no mention of the second part, he said.

Coleman and a number of law students at Duke University, and some graduates, have been investigating. In the police file, they also found another questionable aspect of the taped interview with Marker, Coleman said.

After the trial, former Detective Don Williams, the lead investigator, requested that the original taped interview with Marker and a copy of it be destroyed, Coleman said.

The department denied his request because it violated department policy, he said. So Williams checked out the copy of the tape - which is what was shown to the defense - and returned it.

Coleman said that police should investigate why the tape was removed after the trial and whether the copy returned was the same tape shown to the defense.

"The copy was removed after the trial and returned two days later, or a day later, and we don't know why it was removed and we don't know whether the tape that was removed was the one that was returned. And we brought this to the police a year ago," Coleman said.

Garrity said that the taped interview and all other evidence will be examined as part of the administrative review.

Any new evidence found would be presented to the district attorney's office, he said.

Former assistant district attorney Eric Saunders was one of two prosecutors who handled the case in court.

Saunders said yesterday that he didn't withhold anything from the defense. "We showed the defense attorney all the tapes we had.... What we had, the defense saw it," he said.

Two phone numbers listed for Williams in public records were disconnected, and he could not be reached for comment. Williams retired from the department in 2000.

Norris was out of the office yesterday and not available for comment.

Louis Saunders, an assistant police chief, declined to comment on the review other than to say that it was being handled by Lt. Ted Best and Sgt. Ed Reese, who are working in the chief's office.

When asked if police leaders believe that the right person was convicted, Saunders declined to comment.

Smith has retained Winston-Salem attorney David Pishko to work on his case in conjunction with the innocence project.

Pishko said he has been drafting a motion for appropriate relief in the case - which would ask a judge for a new trial for Smith based on new evidence. He said he would likely file it in Forsyth Superior Court it within the next 30 days.