Judge to let psychiatrist examine Marker

A judge has granted a request by District Attorney Tom Keith of Forsyth County to send a psychiatrist to Ohio to examine Jill Marker, the pregnant woman who was nearly killed in 1995 when she was beaten in a store off Silas Creek Parkway.

The court order, granted Sept. 25 by Judge William Z. Wood Jr. of Forsyth Superior Court, says that the doctor will determine whether Marker can "presently recall the events" of the attack on Dec. 9, 1995, in the Silk Plant Forest store, where she was a manager.

According to the order, the doctor will also offer an opinion about whether Marker would have been able to recall details of the attack when she testified in 1997 during the trial of Kalvin Michael Smith, who was accused of the attack.

The order says that the examination will be done by Dr. Stephen Kramer, a forensic psychiatrist at Wake Forest University Baptist Medical Center.

Keith was out of town and could not be reached for comment about the reasons for calling in a psychiatrist. However, Keith is reinvestigating the case, a move prompted by new evidence uncovered by the innocence project at Duke University Law School, which has been investigating the case since 2003.

Smith, who was convicted in 1997 and is serving a minimum sentence of 22 years and 10 months in prison, maintains that he is innocent.

Attorneys for Smith said yesterday that Keith lined up the neuropsychiatrist and acted without consulting them at a time when he said he wanted to work

with them to reinvestigate the case.

"We had nothing to do with the selection of the expert.. We have nothing to do with selecting the areas of the examination or with selecting the questions that will be asked," Jim Coleman, a faculty adviser to the innocence project, said in an e-mail. "Tom acted unilaterally in setting this up."

David Pishko, a local lawyer representing Smith, said he learned of Keith's request less than two hours before a hearing was held before the judge.

"We didn't object to it; we didn't consent to it," Pishko said. "This is entirely the district attorney's idea, and it was up to the judge whether he wanted the state to pay for it."

Smith's attorneys are considering filing a motion asking for a new trial. However, they have been in negotiations with Keith, and no motion has yet been filed by either side.

Marker was suffered nearly 20 blows to the head with a blunt object. She suffered brain damage and later went blind. She gave birth to a healthy boy after the attack.

Marker's family was awarded $9 million in a civil settlement against the Silas Creek Crossing Shopping Center after they sued, alleging that the center did not provide adequate security.

The money is still being used to pay Marker's expensive medical bills, her mother, Edna Hoisington, said yesterday.

Hoisington said that she and Marker's father agreed to the evaluation so that the legal system will know that Marker is not "mentally retarded." But she said she doesn't know whether her daughter remembers details of the attack.

"She could not presently recall the events of the crime. I don't think so," Hoisington said. "I can't say for sure that she could remember."

Marker requires 24-hour nursing care and cannot speak well. She and her mother make trips to a local library near Akron, Ohio, to check out audio books and listen to them together. She remembers such things as her brother's birthday and her mother's birthday, and told her father not to forget to buy flowers for her mother on their anniversary, Hoisington said.

"She's no dummy," her mother said.

Hoisington said the family was told that the psychiatrist would visit them in the first week of November.

During Smith's trial, Marker identified Smith in court as her attacker. Her testimony was videotaped, but the tape was later destroyed by the N.C. Court of Appeals.

The innocence project later discovered that Marker was not able to identify Smith during a photo lineup conducted in October 1996 by Detective Don Williams of the Winston-Salem Police Department. In that interview, however, she identified another person as having been in her store.

In a second interview just a month before the trial, Marker did identify Smith as her attacker, Williams wrote in a police report. But he did not videotape that interview as he did the first one.

And Williams did not provide a report to the district attorney's office about the first interview. Smith's defense attorney says he never knew about it before the trial.

Any interviews done by Kramer with Marker will be videotaped, the new order says.

Keith has said that he is investigating whether new evidence such as the first video could be grounds for a new trial for Smith. He also has said that he is investigating whether there is evidence of Smith's innocence.

A Winston-Salem Journal series in 2004 raised questions about the way that police and Keith's office handled the case, and quoted medical experts as saying that Marker's head injuries would render her memory of the attack unreliable.

The series also quoted Williams as saying that he didn't document certain evidence that could have been used to help Smith.