Duke Innocence Project adviser raises questions about Marker report

The Duke Innocence Project faculty adviser said this week he thinks a disabled Jill Marker responded with answers she learned from others, rather than her own memories, when a psychiatrist assessed her ability to identify who savagely beat her in 1995.

The adviser also said Marker's family was vested in seeing Kalvin Michael Smith, rather than an acquaintance of Marker's, convicted in her case. Only an attack by a stranger would have supported the lawsuit over lax security at the store where she was attacked, the adviser said. The attorney who handled the lawsuit for Marker said that isn't true.

A psychiatrist concluded in a 2007 report that, despite her injuries and brain damage, Marker was capable of identifying Smith as the man who beat her on Dec. 9. 1995, and left her for dead in the Silk Plant Forest store on Silas Creek Parkway.

James Coleman is a law professor at Duke University who advises the Innocence Project, a group that helps free wrongly convicted prisoners and has worked on Smith's appeals.

Smith is serving 23 to 29 years in prison in the Marker case. He confessed in writing to being in the store when Marker was attacked but has maintained his innocence. His advocates say his confession was coerced, Marker's identification of him was unreliable because of her injuries, the police investigation was flawed and several witnesses recanted after saying Smith had confessed to them.

Concerns about how the investigation was handled have resulted in court appeals, a citizens committee review of the case and two internal police reviews. A former FBI agent is conducting a new evaluation of the investigation.

The attack left Marker with severe brain damage; she lives with her parents in Ohio and requires round-the-clock care.

Stephen Kramer, the psychiatrist who examined Marker in 2007, concluded that Marker was capable of identifying her assailant. Marker identified Smith from 6 feet away during his trial.

Coleman said Marker's responses to the psychiatrist showed she had "virtually no memory at all of that day (of the attack), even basic things."

Coleman said this week in a statement to the Winston-Salem Journal that Kramer "did not know enough about the facts to ask her questions that would have tested her memory."

Coleman said in his statement that the Innocence Project asked the Forsyth County District Attorney's Office in 2007 to have Marker neurologically tested.

"But he declined, and instead retained an expert who only asked her questions, but who did no testing of her," Coleman wrote. "We do not believe Jill Marker knows who attacked her.

Coleman and the Innocence Project refused to participate in Kramer's interview in 2007.

Coleman also said in his statement that Marker and her parents — who are 86 and 87 years old — have "a very significant conflict of interest in saying anything other than" that Smith attacked her.

"Their settlement of her civil case was based on the assumption that Smith attacked her," Coleman wrote. "If Smith did not attack her, the basis for the settlement disappears."

Marker's parents sued the shopping center where Marker was working and won a $9.25 million settlement that pays for her care. The suit argued that the shopping center should have provided better security to deter a random attack.

Coleman wrote that if Kenneth Lamoureux, an early suspect in the case who knew Marker from another job she held at a day-care center, attacked Marker, the shopping center probably would not have been liable for her injuries.

Tom Comerford, a Winston-Salem lawyer who represented Marker and her parents in the civil suit, said Thursday that the civil case did not rely on the idea that Smith attacked Marker.

"It really wasn't important to our case that it was Kalvin Smith or Joe Blow, to tell you the truth," Comerford said. "The theory of our case was basically that the shopping center failed to have appropriate visible security."

Comerford said neither his legal team nor the legal teams for the shopping center found evidence that Marker was attacked by someone who knew her.

"I don't think insurance companies and shopping centers pay $9 million to settle a case that there is no evidence for," Comerford said.

Coleman said in his statement that the Duke Innocence Project never interviewed Marker.

"Jill Marker was present when my students interviewed her parents, but we were not able to interview her because her parents said she was resting," Coleman said. "We have never been able to ask Jill Marker questions about the case."

Coleman told the Journal earlier this month that the Innocence Project did interview Marker, though he would not provide a copy of their report and would not comment on what they found, "except to say that she certainly didn't have the kind of recollection that she purported to have when Dr. Kramer examined her."

lgraff@wsjournal.com

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