Superior Court Judge Richard Doughton left a big question hanging Thursday when he denied Kalvin Smith's request for a new trial in the severe beating of Jill Marker: Did Winston-Salem police and the Forsyth County District Attorney's office get the right man? If Smith was wrongly convicted -- and there is considerable information to support that possibility -- then the door has been slammed on justice, at least temporarily.
Smith's long fight for a new trial will continue. He has been in prison since 1997, when he was convicted of the 1995 beating of Marker at the Silk Plant Forest store in Winston-Salem where she worked. The attack left her brain-damaged. Smith, serving a minimum sentence of about 23 years, has maintained his innocence. The Journal and the Duke Law School Innocence Project have long raised questions about the case, particularly about the process by which police say Marker identified Smith as her assailant.
In recent months, a citizens' review panel created by the city council has also raised questions about the case.
Last week in Forsyth Superior Court, Smith's lawyer, David Pishko, raised questions about the competence of Smith's lawyer at his 1995 trial, William Speaks. Pishko also hammered away at statements made by key state witnesses.
Two witnesses whose testimony implicated Smith in the crime and have since recanted testified that their original statements to police were coerced. Smith said his statement -- in which he admitted to being at the crime scene but said another man struck Marker -- was coerced and false as well.
Police officers denied any coercion. One of them was Don Williams, now retired, who was the lead detective on the case. Smith's supporters have long wanted to hear from Williams. In 2004, he told the Journal's Phoebe Zerwick that he intentionally did not document certain evidence in order to avoid having to give it to Smith's lawyer. Not surprisingly, Williams denied any wrongdoing on the witness stand.
The witnesses put on by the state attorney general's office last week seemed credible, although some did blame major mistakes, such as wildly varying interpretations of a polygraph test that Smith took, on human error. Police officials at different times scored the results as truthful, inconclusive and finally, deceptive. It reminded us of the changing scenarios proffered by the DA's office through the years as new evidence arose undermining the guilt of Darryl Hunt. If nothing else, the hearing underscored the need for city police to complete reforms they've begun that include videotaping of all interviews in major cases.
Some of the witnesses for Smith were less than perfect. For example, Eugene Littlejohn, one of the witnesses who recanted, claimed that Eric Saunders, an assistant district attorney, gave him $500 to testify. Saunders, now retired, denied that on the witness stand.
But by and large, Pishko presented a good argument for a new trial. It's troubling that Doughton didn't see it that way, especially since he was fair to both sides during the hearing -- to the extent that Smith's lawyers will probably be hard-pressed to persuade the N.C. Court of Appeals to reverse Doughton's decision.
Meanwhile, Smith remains behind bars. For the sake of justice and public safety, we hope the state got the right man. In Winston-Salem, that big question lingers.
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