The AG's Response

By: JOURNAL EDITORIAL STAFF | Winston-Salem Journal
Published: July 28, 2008

It should come as no surprise that the state Attorney General's office says that Kalvin Michael Smith has not presented evidence that would merit him a new trial in the severe beating of Jill Marker in Winston-Salem in 1995. Prosecutors rarely ask for new trials, unless defense teams have uncovered new evidence that is overwhelming. Now, Smith's team will have to convince a judge that it has such evidence.

Forsyth District Attorney Tom Keith asked Attorney General Roy Cooper's office to take over the case after questions were raised about the way that prosecutors under Keith handled the case. Defense attorneys for Smith, who was convicted in 1997 of beating Marker, have asked for a new trial. But in a response to that request, Cooper's office says that "Defendant's so-called newly discovered evidence goes nowhere near proving his factual innocence. All of Defendant's claims are without merit and should be summarily denied."

The next big step is a hearing scheduled for the week of Sept. 29 that should determine whether both sides need to put on evidence for a judge. The judge would then decide if Smith should get a new trial, Dan Galindo reported in Wednesday's Journal.

That's when defense lawyers should make their best case for their contention that Smith was wrongly convicted of Marker's beating. And if prosecutors have any evidence they haven't yet revealed that further confirms Smith's guilt, they should put that on the table at the hearing.

Prosecutors haven't mentioned much new evidence.

Defense attorneys have talked about lots of new evidence. And they, the Journal and the Duke Law School Innocence Project have raised serious questions about the handling of the case, both by Keith's office and the Winton-Salem Police Department. In their motion for a new trial, defense attorneys allege that Smith was wrongfully convicted because of evidence withheld by authorities, false evidence, an ineffective defense attorney and other violations of his rights.

It's apparent that mistakes were made in the case, at least on the police end. In the wake of the Darryl Hunt case, city police are working on reforms that should help minimize such mistakes in the future. A citizen's committee reviewing the Marker case should lead to more reform.

But it's another question entirely as to whether mistakes made in the handling of the Marker case led to a wrongful conviction for Smith. We sure know where the state and the defense stand on that question.

Now it's time for each side to make its best case in court -- and let a judge decide whether there's sufficient evidence for a new trial.