Kalvin Smith lost his latest effort to win a new trial yesterday, leaving the federal courts as his last recourse to win freedom.
A three-judge panel of the N.C. Court of Appeals denied Smith permission to ask for a new trial in the 1995 beating of Jill Marker, a clerk with the Silk Plant Forest store, which was off Silas Creek Parkway.
He is serving 23 to 29 years in prison for the beating and has maintained his innocence.
David Pishko, Smith's attorney, said yesterday that he plans to file a petition in U.S. District Court that alleges that Smith is being held in violation of his constitutional rights. If Smith loses in U.S. District Court, he could appeal all the way to the U.S. Supreme Court.
"I was speechless that they decided the matter so quickly," said Jim Coleman, a law professor who heads the Innocence Project at Duke University Law School, which has been investigating the case since 2003.
"We filed a 100-page petition with a 486-page attachment. The state filed a 100-page opposition. Basically, they denied it within a week. That's pretty extraordinary given the complexity of the issues that had been raised in the case."
Smith filed a motion requesting a new trial in April 2008, alleging that he had been wrongfully convicted and that his case depended on the testimony of three witnesses who had lied. The motion said that there was no physical or circumstantial evidence linking Smith to the attack.
In January, Judge Richard Doughton of Forsyth Superior Court denied Smith's motion. Pishko soon filed a request for permission to appeal to the Court of Appeals.
Smith's case is the most prominent allegation of wrongful conviction in Winston-Salem since the Darryl Hunt case. Hunt was exonerated in 2004 after serving nearly 19 years in prison for the 1984 rape and murder of Deborah Sykes. New DNA evidence led investigators to another man, Williard Brown, who admitted to the killing.
Smith's case was the subject of a five-part investigative series in the Winston-Salem Journal in 2004 that raised questions about the work of police and prosecutors in the case.
A citizens committee formed by the Winston-Salem City Council examined the police department's investigation. In its final report, the committee said it had no confidence in the police investigation. Separately, the committee voted 7-2 that it found no credible evidence that Smith was at the scene of the crime.
The city has not released the full report, which has appendices that include testimony from the lead detective, Don Williams.
District Attorney Tom Keith asked for a reinvestigation after Smith's attorneys filed the motion seeking a new trial. The State Bureau of Investigation conducted a limited reinvestigation of the case.
Although Smith's attorneys argued that prosecutors withheld evidence, Keith said that's not the case and the hearing in January settled the issue, as far as he is concerned.
"We are being bombarded as the bad guys," he said. "That's disingenuous. They have incredible discovery, our personal notes, our handwritten notes."
mhewlett@wsjournal.com
727-7326
Email
Facebook
Google
Twitter
Favorites
More
Advertisement