More questions

State Bureau of Investigation tests on two potentially key pieces of evidence in the 1995 Jill Marker beating case that had not been tested earlier don't implicate anyone -- including Kalvin Michael Smith, the man who's been in prison since 1997 for the crime. That's significant in a case built on sometimes questionable accounts from witnesses and no physical evidence linking Smith to the attack at the Silk Plant Forest store where Marker worked. More than ever, answers are needed.

City Councilman James Taylor, who also served as the vice chairman of a citizens' committee that reviewed the case, is emerging as a leader in demanding those answers.

He pressed police for the prompt release of the results of the SBI testing. And he said Wednesday that he wants the department to send the evidence -- the clothes Jill Marker was wearing at the time of the attack and a piece of cardboard with blood on it from the crime scene -- to a private firm, LabCorp, for further testing, but he'll leave that decision to police.

"It might be time to start looking for a new suspect," said Taylor, who is a juvenile drug-treatment coordinator. "I believe that Chief Cunningham and the police department are doing everything they can, and we'll make sure of that."

Jim O'Neill, who became district attorney last year, and Scott Cunningham, a former Cary police chief who took the helm here in 2008, have inherited this troubling case. O'Neill has resisted our calls for his office to review it. He notes that at a court hearing last year on the Marker case, the judge found nothing improper in the handling of the case by the district attorney's office, and that the judge's rulings were upheld by the N.C. Court of Appeals.

Cunningham is part of a small team at the police department reviewing the case to recommend whether the department should re-investigate it, a review that could include ordering more testing of the evidence that was sent to the SBI. He said in March that the evidence would be sent to LabCorp. Tuesday, he said in an e-mail that he wasn't sure if it would be sent, but "If we believe it would be beneficial, then we will have it tested accordingly."

The SBI testing, the results of which Cunningham announced at a press conference Monday, showed that blood on Marker's shirt and a piece of cardboard yielded only DNA links to her.

DNA testing of human hair roots found on her blouse did not definitively match Marker, Smith or anyone else known to be involved in the case, but appeared to come from a white person. Smith is black. Marker is white.

LabCorp charges for its work, but the Duke Innocence Project, which is assisting Smith, has offered to pay for part of those costs. LabCorp can do more exhaustive hair testing than the SBI lab. Attorney General Roy Cooper recently ordered an independent review of the SBI lab's work because of revelations of problems with test results in a murder case in which the defendant was exonerated.

Cunningham said in the e-mail, "I am not interested in continuing to debate the big conspiracy issues and that only independent labs should be trusted or utilized. SBI is the state lab for agencies in NC to utilize."

But testing by an independent lab could lead to another suspect. There's always the chance that the testing could tie Smith to the attack. Or, once again, it could show that there's no forensic evidence connecting him to it. Smith recently gave police a sample of his blood that has already been used in the SBI testing.

Cunningham said Monday that it's still unknown why the evidence wasn't sent to the SBI sooner. He noted that this case was not built on physical evidence. "It is unfortunate, especially when looking at cases through the lens of today's state-of-the-art technology." He also said that Marker's conviction "was based on what evidence was presented in court." The test results "and lack of confirmatory evidence doesn't change or challenge that decision."

But questions have long been raised about Marker's identification of Smith as her assailant; the trial judge later called the identification "equivocal." And there's reason for renewed interest in an early suspect.

In an affidavit recently filed by Smith's lawyers, a woman says that Marker called her moments before she was attacked, saying that the suspect had come in the store, asked her to dinner, and stormed out when she refused, the Journal's Michael Hewlett reported.

Two witnesses whose testimony implicated Smith have since recanted and said their original statements to police were coerced.

Smith has testified that 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.

Cunningham said that his team's review of the case will be ready for city officials this summer. "We are taking an in-depth look at the case," he said.

Taylor, the vice chairman of the city council's public-safety committee, said, "If Kalvin Smith is innocent, there's a guilty man running the streets," he said. "I'm concerned about it because it's a matter of public safety. And just because it's the right thing to do … We have to make sure that justice is served."