What's Next?: Authorities review Silk reports.

With the work of a citizens committee that studied how police investigated the 1995 Silk Plant Forest assault case complete -- many documents have been released the past two weeks -- one lingering question is what happens next.

Kalvin Michael Smith, the man convicted of brutally beating Jill Marker, a manager at the store, has been in prison since January 1997. He maintains he had nothing to do with the crime; he is serving a sentence of 22 to 29 years in prison.

In its final report in August, the Silk Plant Forest Citizens Review Committee said it had no faith in the police investigation of the crime. Separately, its members voted 7-2 on a statement that said there is no credible evidence today that Smith was at the scene of the crime on Dec. 9, 1995.

Though the committee's work hasn't changed Smith's status, people coming from different vantage points say the review committee was significant for several reasons -- everything from what it could mean to Smith over time to the potential for more reforms in the police department to the progressive nature of committee's existence as a response to an accusation of poor police work.

Mayor Allen Joines, who supported forming the Silk Plant committee, said more could and would be done now that the committee's work is done.

"Absolutely," he said last week. "What we are doing is the council will at some point make a decision as to whether or not to call for a full reinvestigation of the case."

Internal review

Police Chief Scott Cunningham said he's formed a five-person internal team, including himself, to review the investigation and the work of the citizens committee.

None of the members of the internal team have had any contact with the case itself, he said. A previous internal investigation in 2007 -- done before Cunningham was hired and before the citizens committee was appointed in 2008 -- had to be scrapped after it turned out the person in charge had supervised the lead detective during the time the case was being investigated.

Cunningham indicated in an e-mail this week that the new review will be in-depth and extensive.

"We are reviewing everything to ascertain if there are sufficient and appropriate reasons to reopen the case," Cunningham said. "It is anticipated that we will make a decision regarding reopening the investigation and report that to council as a recommendation in the report."

Because there is so much material, he said, it would likely be several months before the internal committee has a report, which it will give to City Manager Lee Garrity. Cunningham said he expects the internal report will then go to the City Council's Public Safety Committee and eventually the full council.

It is not clear what will happen if the internal study determines, and the council approves, that the case be reinvestigated. Theoretically, the outcome of a new investigation -- including the possible identification of a new suspect -- would be brought to the district attorney's office. Right now, the state attorney general's office is defending the work of the original prosecutors as Smith continues his appeals.

Forsyth County District Attorney Jim O'Neill, appointed in November to fill the unexpired term of longtime DA Tom Keith, declined to comment last week.

One person especially familiar with the case is City Council Member James Taylor, who was elected in November after having served on the citizens review committee.

Taylor said last week he is most concerned about getting all of the documents associated with the citizens' committee's work released.

Although a judge ordered the release of the committee's interview with former police Detective Don Williams, the lead investigator in the Silk Plant case, as well as some other documents, a court ruling has yet to be handed down on the efforts of eight current and former officers to block release of transcripts of their interviews.

Different opinions

Taylor said he "didn't have a lot of confidence in the investigation" of the Silk Plant case. He said he hopes the department adopts some of its recommendations on police work; many of the ideas espoused in the citizens' committee's report already have been put in place, such as videotaping of interviews with suspects and key witnesses in crimes.

As for Smith, Taylor was blunt.

"I think the man needs a new trial. In reviewing the information firsthand, I think he needs a new trial. No one really knows what happened that day."

Guy Blynn, chairman of the citizens review committee, said he believes it will be difficult for the police to open a new investigation into the case.

"There's no DNA. No blood samples that weren't analyzed at that time," he said. "All of the possible witnesses have been spoken to on multiple occasions, so as much as I would like to see either confirmed that Kalvin Michael Smith did it or confirmed that he didn't do it and somebody else did it … I don't think there's any way to do that."

Regardless of whether the city decides to reopen an investigation, Smith's attorneys are continuing to push his cause, even though a Superior Court judge a year ago rejected his second request for a Motion for Appropriate Relief. The motion cited what Smith's attorneys said were legal errors that merited giving Smith a new trial. A few months later, the N.C. Court of Appeals also turned Smith down.

Theresa Newman, a Duke University professor and faculty adviser to the Innocence Project at Duke University, which has worked on behalf of Smith for more than six years, said a petition for relief would be filed in federal district court this month. She said the appeal would focus on constitutional issues.

Mark Rabil, an assistant capital defender based in Forsyth County, said Smith's attorneys could find more luck in federal court, though the process often is a long one.

Federal courts, he said, will sometimes look at evidentiary issues as part of the review of constitutional issues.

"The more compelling case of innocence," he said, "the more likely it is that federal courts will find a violation."

Rabil is best known for defending Darryl Hunt, who served nearly 19 years in prison for the murder of a newspaper copy editor before DNA led authorities to another suspect. He said cases such as the Silk Plant Forest are tough because of the lack of DNA.

"How does one ever gain freedom now that DNA is the gold standard?" he asked. "The basic answer is that we have to be like Socrates -- gadflies of the community. As we keep pushing, we hope that something shakes out of the bushes."

Separately, he praised Winston-Salem for creating citizens committees to review both the Silk Plant Forest case, and before that, the work of the police department in the Hunt case.

"It does add a whole new dimension," Rabil said.

Likewise, Newman said, Winston-Salem "in many ways is a model for what we'd like to see happen in other cities."

Academic effort

One longer-term effort is getting under way partly as a result of the Silk Plant Forest case.

Newman and her Duke colleague, James Coleman, are planning a small seminar in February and a national conference sometime later that would bring different disciplines together to look at decision-making in the criminal-justice system -- from police and prosecutors to lawyers, judges and juries.

Psychologists, linguists, neuroscientists and people from the legal system will be invited as the seminar looks at "what science can teach us about how people make decisions," Newman said.

Neil Vidmar, a Duke law professor who has a Ph.D. in social psychology, said the other disciplines bring a different perspective to law issues.

"How do the breaks come about that organizations make wrong decisions, go down wrong paths?" he said.

For example, he said, one person can make a suggestion "And you say ‘yeah, that sounds like a good idea' and we go down this road and then we fail to examine alternative hypotheses which may be the more credible ones … and so we make a decision in the wrong way.

"We thought it was an interesting way to start thinking about these problems from a totally different perspective."

lgura@wsjournal.com


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Lingering questions

The Silk Plant Forest case first came under scrutiny when the Innocence Project at Duke University began looking into it in 2003. In late 2004, the Winston-Salem Journal published a five-part series that raised serious questions about the work of lead Detective Don Williams, how prosecutors handled their end, and about shortcomings in Smith's defense. Among the major issues:

• HANDLING OF WITNESSES: Lacking forensic evidence, Williams and his supervisors used witnesses to make a case against Smith, who two different women had said confessed some kind of role in the crime to them. Smith was arrested after a long interview with police in which he ultimately told them he was at the scene the night in question and another man did the crime. He immediately recanted his statement.

Police, however, obtained statements from one man, Eugene Littlejohn, and a couple of other women that implicated Smith. The Duke team has since obtained affidavits from all of the witnesses recanting what they told police; they said their statements had been coerced from them.

• POLYGRAPH EXAMINATIONS: Polygraph examinations given to the witnesses were worded in such ways that the answers could be found truthful, though they never directly addressed key facts in the case. The Silk Plant Forest Citizens Review Committee made note of problems with the polygraph examinations, recommending better procedures with more supervision before they are given to suspects or witnesses in future cases.

• IDENTIFICATION AND LINEUPS: How the victim, Jill Marker, came to identify Smith -- from lineup procedures to Williams' documentation of the many lineups in the case -- became a focal point of the Duke team's work on Smith's appeal. Marker, who was pregnant, was beaten 20 times about the head with a blunt object that was never recovered and left for dead. She was severely wounded and unable to talk. Today, she is blind and living under 24-hour care in Ohio. She gave birth to a healthy boy while in a coma.

• WEAK DEFENSE: Smith's defense attorney chose not to put any witnesses up, despite an emotional appearance by the victim trying to identify Smith. Several neurological experts said in the Journal's 2004 series that it probably would have been impossible for a victim of such a brutal attack to have any memory of it.

• EARLY SUSPECT DROPPED: Williams abandoned his pursuit of an early suspect, Kenneth Lamoureux, who had been identified by several witnesses as having been in the store the evening of Dec. 9, 1995. Lamoureux, who knew Marker because she used to work at a day-care center where he took his children, was dropped as a suspect in April 1996 when he moved to Charlotte. His estranged wife had taken out a restraining order against him in October 1995, and he'd been committed to a psychiatric ward because of fears he could harm himself or others. He got out the day before the attack. Photos of Lamoureux were posted in the Forsyth Medical Center intensive-care unit while Marker was there to warn people about him.

Williams said he dropped Lamoureux as a suspect when Marker indicated to him that her attacker was a black man. That, however, didn't occur until nearly seven months after the last mention of Lamoureux in Williams' reports.