Judge in Smith case rules that claims merit hearing

Of 11 claims made by Kalvin Smith in asking for a new trial, five were left standing yesterday after a hearing before the judge charged with making that final decision.

Judge Richard L. Doughton rejected the six other claims, saying that they were barred either because Smith has made them before unsuccessfully, or his attorneys did not show enough likelihood that the allegations were true and relevant to his right to a fair trial.

Attorneys on both sides will now prepare for a hearing that is at least a month away.

That hearing is intended to sort out the evidence for the five remaining claims. Doughton will then decide whether Smith deserves a new trial in the 1995 beating of Jill Marker at the Silk Plant Forest, a store on Silas Creek Parkway.

Marker, who was pregnant at the time, was severely injured in the attack. She is now living in Ohio with 24-hour care; she gave birth to a son while in a coma.

Smith, who has maintained his innocence, is serving 23 years in prison for the crime.

Doughton said that the next hearing will be scheduled by next week and that it's possible that the earliest available court date would be in January.

"We'll get it done as quickly as we can," Doughton said.

Smith's attorney, David Pishko, and Danielle Marquis Elder, an attorney for the N.C. Attorney General's Office, did not comment after the hearing.

Smith's family said they are pleased that he is closer to a new trial.

"I'm confident that things will continue to go well," said Sheila LeGrande, his mother. "Right now, I'm just happy."

The allegations that Doughton allowed to go forward are:

□ That prosecutors relied on false testimony to convict Smith. Smith alleges that two witnesses have recanted, including the only witness -- other than Marker -- to put him at the crime scene.

□ That prosecutors withheld the second part of a videotaped interview with Marker in October 1996, before Smith had been arrested. In that second part of the interview, Marker was shown three photo lineups. In one, she did not pick Smith out, in another she picked out another suspect, and in the third she indicated that a man who was not a suspect had been her attacker.

□ That prosecutors withheld evidence that one witness who said that Smith confessed had actually said that Smith admitted to pushing a woman at a liquor store, not at the Silk Plant Forest.

□ Two claims that Smith's trial attorney, William Speaks, was ineffective. Both claims involving Speaks have to do with whether he requested information from prosecutors that would have helped Smith's defense.

The first claim is that if Speaks saw the 1996 videotaped interview, he should have requested the photos shown to Marker. He would then have learned that Smith was in a lineup and that Marker did not identify him as her attacker. That could be used to challenge Marker's identification of Smith at trial.

In 2005, Speaks learned that there were two parts to the videotaped interview and that the second part had lineups. He told Duke University's Innocence Project, which had taken up Smith's case, that he was never shown that part of the tape and repeated the claim in an affidavit filed with Smith's motion for a new trial.

But last week, Speaks changed his mind and said in an affidavit that he's not sure that he didn't see the videotape.

A doctor whom Speaks consulted with on the case told prosecutors that he and Speaks had seen the tape. Speaks said in last week's affidavit that the doctor's memory is likely better than his.

Doughton said that when he learned of the new affidavit, he realized that it raised questions that likely would need to be part of a later hearing.

"Why would a defense attorney not use that if he had seen it?" he said. "Why would he change his mind after three years?"

The other claim is that Speaks did not ask prosecutors for a surveillance camera videotape from Toys "R" Us, a store next to the Silk Plant Forest. At trial, Eugene Littlejohn testified that Smith went into Toys "R" Us after the attack, a detail that he had not told police before.

The Toys "R" Us tape no longer exists, and it's not clear who destroyed it or when. It was mentioned in a police report written soon after the crime, in which detectives said they didn't find it to be of value. But if Speaks had asked for it, he could have used it to show that Littlejohn's account was not true, Pishko argued.

Elder, the attorney for the attorney general's office, said that Smith's claims are either barred because he raised them in a 1999 motion for a new trial, or they don't merit a new trial.

Most claims, she said, have to do with evidence that could be used to discredit, or impeach witnesses, but do not point to his innocence.

Even if testimony of the two witnesses who recanted was tossed out, Elder said, Marker still identified Smith at trial and another trial witness, who has not recanted, said that Smith confessed to her.

"There is no reasonable probability of a different result to this case," Elder said.

Doughton questioned attorneys sharply throughout the hearing, at one point interrupting Elder when she said the case was not typical.

"There's nothing about this case that's typical," he said. "You've got a victim that's got a brain injury and making the identification. There's nothing typical about this case."

■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.