Panelists may get big task

A group that usually reviews minor complaints against Winston-Salem police officers could soon be assigned to take on the most complex case that it has ever seen.

If city council approves, the Winston-Salem Citizen Police Review Board would oversee a second review of the near-fatal beating of Jill Marker in 1995. Board members would work with an independent legal expert, who would have the power to conduct investigative work.

City Manager Lee Garrity's request that the board review the case comes after his decision last Friday to withdraw a report in which Winston-Salem police reviewed the way they handled the investigation of the attack, which took place Dec. 9, 1995, in the Silk Plant Forest store off Silas Creek Parkway, where Marker was working as a manager.

Garrity said he withdrew the city's report because it was not thorough and he questions its objectivity.

Kalvin Michael Smith was convicted of the assault in December 1997, but he maintains his innocence. He is serving a minimum of 22 years and 10 months in prison.

Garrity said he wants the police-review board to oversee a new review because it would allow citizen participation. But the investigative work would be managed by someone with no connection to the city, he said. Garrity is talking to the Wake Forest University School of Law about the possibility of having a law professor conduct the review.

Garrity's talks with Wake Forest come at a time when the law school is preparing to start its own DNA innocence project.

Wake Forest wants the Forsyth County Bar Association to send the law school any claims of innocence in which DNA can be tested, said Blake D. Morant, the law-school dean. The school is planning to formally announce its project early next month.

The law school needs more information, Morant said, to decide whether it can assist the city.

"There are a number of questions about it that need to be addressed, and I think we're still learning about what the review process entails and what would be required in order to perform such a review," he said.

As for the members of the police-review board, Garrity said: "They have quite a bit of experience at reviewing police procedures, looking at police investigations, and complaints from citizens, so they don't start from ground zero.

"They've got a basic understanding of what our practices and procedures are," he said.

The review board had its first meeting in 1993, and it typically deals with minor complaints.

The 11 board members review appeals from citizens who have complained about a police officer and aren't satisfied with how the city handled the complaint. The board can make recommendations about officer discipline to the city manager.

But the city council can assign the board broader duties. The council's public-safety committee will hear Garrity's request on Monday.

Council Member Vivian Burke, the committee chairwoman, said that the review board's role has not been completely determined, but the city must ensure that the right people are reviewing the police actions and that citizens feel confident in the result.

When contacted about Garrity's request, the chairman of the review board, Dewey Haley, had little to say. "I don't know nothing about it," he said. "I'm not at liberty to talk about anything.. I don't know what's going on."

Daniel Dwight, the board's vice chairman, said that the board members got some information last week from theCity Attorney's Office, which works with the review board, about Garrity's request. "That's something that we're chartered to do as part of the board," he said.

One citizen questioned whether the review board should be involved because it reports to the City Attorney's Office - which had a hand in the report that was withdrawn.

"With total respect, I would say to the city council the obvious: This time it's your credibility that's on the line," said Jet Hollander, who was a member of the citizen panel that met between July 2005 and January of this year to review the investigations of Darryl Hunt. "Credibility means the review must be 100 percent independent from the city, and it means the City Attorney's Office cannot once again play a key role, or play any role for that matter."

Hunt served about 18 years in prison for a murder he did not commit, that of newspaper copy editor Deborah Sykes in 1984. He was twice convicted of her murder based on investigations done by Winston-Salem police. DNA evidence led to the real killer in 2003.

Garrity initially ordered a review of the Marker case this spring because it was the only major case in the aftermath of Hunt's with unresolved questions about police tactics. The review was to examine whether police followed proper procedures.

The report that Garrity withdrew was done by the police department and edited by the City Attorney's Office, the office of Police Chief Pat Norris, and Garrity. It concluded that police made procedural mistakes in their investigation but that the lead detective did not ignore evidence or other avenues of investigation.

But after the report was released Aug. 14, Garrity said he learned that the investigator in charge of it, Lt. Ted Best, supervised the lead detective during the case. Garrity said he had asked the police department to assign the review to an investigator who did not work on the original case. He also said he was given documents that should have been included in the administrative review but were not.

"I want to make sure we do a very, very thorough review of everything - which is what should have happened the first time," Garrity said.

Aside from the city's review, questions have arisen about actions of police and prosecutors in the case. The innocence project at Duke University School of Law has been investigating the case since 2003 and discovered evidence that was not given to Smith's defense attorney.

Additionally, a series of stories in the Winston-Salem Journal in 2004 raised questions about the way police and prosecutors handled the case. In that series, the lead detective, Don Williams, said he did not document certain evidence because it could have helped the defense.

Among the most significant discoveries made by the innocence project is a videotaped interview that Williams did with Marker on Oct. 31, 1996. In it, he showed her photos of suspects. She could not identify Smith as her attacker but apparently identified another suspect has having been in the store.

For unexplained reasons, Williams did not write a report on the photo lineup or give the District Attorney's Office a copy of the photos. Williams, now retired, declined to be interviewed by Best during the administrative review, which concluded that he violated department policy by failing to document the lineup.

Smith's defense attorney, William Speaks, has signed an affidavit saying he never saw the portion of the video that includes the photo lineup.

Mary Jean Behan, the assistant district attorney who handled the tape and played it for Speaks before the trial, would have watched the entire video and shown it to the defense but does not remember seeing the photo lineup, District Attorney Tom Keith has said.

Other potential evidence was not documented. A customer in the Silk Plant Forest the night of the attack said that Marker told her that the back of the store was "dangerous." But police never put that in any report, and police and prosecutors weren't interested in looking into it, the customer said recently.

A state witness, Eugene Littlejohn, gave a number of conflicting statements to police but testified at the trial that after the attack, Smith followed him into Toys "R" Us next door to steal an electronic game. But a surveillance video from Toys "R" Us is missing.

Mike Barker, a detective who worked on the case, told the reviewers that he presumed that the surveillance tape was passed on to Williams and kept with the case evidence. The rejected report mentioned that the tape was missing but didn't offer an explanation of why that might be.

Smith's lawyers have said that they are considering asking for a new trial based on new evidence, but they are also trying to talk to Keith about it.