Part Four: The Trial

The injured victim nods yes

By Phoebe Zerwick

JOURNAL REPORTER

WINSTON-SALEM

CHAPTER 6

Interviews in Ohio

Prosecutor Eric Saunders said recently that as the trial date drew close, he believed he had a solid case against Kalvin Michael Smith, the man accused in the brutal beating of Jill Marker inside the Silk Plant Forest store on Dec. 9, 1995.

Still, there were issues with which the prosecution would have to contend.

There was no physical evidence to link Smith to the beating. Also, Marker was mute and partly paralyzed from her injuries. She had answered general questions about the attacker by nodding and shaking her head, which led police to focus on a black suspect, but according to police reports she had not yet identified Smith as her attacker.

And Eugene Littlejohn, the only witness who would testify that he was with Smith at the scene, had given such inconsistent accounts that he didn’t inspire much confidence.

Detective Don Williams, the lead investigator, said in a recent interview that Littlejohn showed up drunk for his final interview with the prosecutor, shortly before the trial.

“I think the biggest thing was worrying about Littlejohn backing out,” Williams said. “Eric Saunders told him, ‘Let me tell you something, Littlejohn, you’re lucky you’re not in jail with him. We want your full cooperation; otherwise, I’ll get you indicted. And don’t come in here with beer on your breath.’”

Saunders denied recently that he ever threatened Littlejohn with prosecution. He said that Littlejohn had admitted to nothing more than accompanying Smith to collect money, which is not a crime. “I don’t normally run a bluff unless I can back it up,” Saunders said.

Saunders agreed to be interviewed for this story only after the Journal provided copies of police reports for him to review. The second prosecutor assigned to the case, Mary Jean Behan, was present in the interview but declined to comment.

Saunders said that, from the beginning, he thought that he had a solid case, based on Smith’s admissions and statements from Littlejohn and two women. Saunders said he was not troubled by the lack of details or the interrogation methods used by police.

“Do you expect everyone charged with a crime to go down to the police department and just start spilling their guts?” he asked. “That’s an absurd proposition; that doesn’t happen in real life.”

As prosecutors prepared for the trial, Marker’s relatives in Ohio were trying to figure out how to pay for a lifetime of expensive medical care.

Her husband, Aaron Marker, had retained a lawyer in Cleveland to sue the Silas Creek Crossing shopping center, its partners and its security company on behalf of his wife. The lawsuit was filed in Winston-Salem in April 1997 — 16 months after the attack and three months after Smith’s arrest.

Soon after the lawsuit was filed, Marker’s parents applied to the courts in Ohio to have Aaron Marker removed as her guardian. They had evidence that he had essentially abandoned their daughter, and they used it. The medical staff at Heather Hill, a rehab hospital outside Akron, told the Ohio court that they couldn’t get in touch with Aaron Marker when they needed him. He also had spent $26,000 that had been donated to the family by people in Winston-Salem and Ohio. In August 1997, the court named Marker’s father, Bud Hoisington, as her guardian.

In one of his first actions, Hoisington filed for divorce of the couple. He also assumed responsibility for the civil lawsuit against the shopping center.

Silas Creek Crossing was a busy place, anchored by Toys “R” Us and Marshall’s. The civil lawsuit argued that the shopping center had not provided sufficient security for employees there. The toy store hired off-duty police officers, whose primary function was to keep an eye over the checkout areas. There was only one unarmed security guard to patrol the rest of the 23-acre shopping center.

In the year before the attack, employees at several stores in the center had written to management to complain about lax security. One even raised the specter of a series of high-profile murders and kidnappings in downtown Winston-Salem.

“You have already been informed, in writing, that tenant employees responsible for closing up at night are at risk because of your failure to provide a security presence,” the worker wrote anonymously. “Are you going to wait until one of us becomes the next Chrissy Gallaher, Janet Garland or Deborah Sykes?”

The legal theory behind the civil case was that the shopping center should be expected to take reasonable measures to protect the employees of its tenants from random crime. It could not be expected to protect them from a trained assassin, a jealous lover or a determined stalker.

“If they could show it was a stalker, it made it much more difficult to prove my theory of liability,’’ said Clifford Britt, a Winston-Salem lawyer who represented Marker,

The other side understood this well.

“If the attack was planned or it was a lover’s quarrel or a stalker, that would have taken us off the hook,” said Joe Moss, a Greensboro lawyer who represented the shopping center.

By the summer of 1997, the attorneys on both sides knew that the police had an early suspect in the case, a middle-age white man named Kenneth Lamoureux — who had been seen in the store by two witnesses the night of the attack, who was alleged to have known Marker and whose profile would have fit neatly into the shopping center’s defense. Marker’s parents were aware of this earlier suspect, too.

The civil case would have been weaker if someone who knew Marker, such as Lamoureux, had been involved. Only if the attack were random, as it appeared to be with Smith, would the onus be on the shopping center.

With the criminal case against Smith and the civil case against the shopping center both pending, Williams, the lead investigator, went back to Ohio in September 1997 to interview Marker for a second time and to show her a photo lineup to see whether she could identify Smith or Littlejohn.

Marker had moved to a new nursing home, not far from where she now lives outside Akron. She was still unable to talk, but she could nod and shake her head as she had the year before, and now she could write, shakily, on a grease-board.

Williams asked her the same basic questions he had asked the year before.

Marker indicated as she had previously that her attacker was black. Williams had some new questions, too. He asked whether there had been two people in the store, a question apparently aimed at finding out whether more than one person had attacked her. Marker nodded her head yes, then reached for her tablet and wrote, “Two, three. I’m not sure.”

Williams also asked whether she thought her husband might be involved. Williams had no evidence linking Aaron Marker to his wife’s beating, but he had received an anonymous tip from someone who said that Aaron Marker owed Smith money for drugs and sent Smith to collect the debt from his wife. Williams had never confirmed this tip, but it had shaped his investigation.“I don’t know,” Marker wrote about her husband’s possible involvement. “I’m not sure.”

Williams brought copies of the standard mug shots enlarged to 8-by-11 size so that Marker could see the photographs more clearly, and he prepared two groups, each with six different photographs of black men. The first group included a picture of Smith. The second group included a picture of Littlejohn. He also brought a photograph of Marker’s brother, his wife and three sons to use as a way of testing her ability to identify familiar faces.

He began with the family photo. She was able to point to her brother and his wife, but she could not identify any of her three nephews, ages 9, 11 and 14.

Next, Williams placed a group of photographs on a round wooden table in two rows, with Smith’s photo in the middle on the bottom row. According to Williams’ report, a nurse wheeled Marker to the table and Williams asked her to pick out the person who had beaten her at the Silk Plant Forest, implying that the attacker was one of the six men pictured. She moved her right hand over the photographs and after about 20 seconds settled on the photo of Smith.

“Ms. Marker’s facial expression changed to what I believe to be a terrified look and at the same time, Ms. Marker hit the photograph of Kalvin Michael Smith three times with her hand,” Williams wrote.

Lonnie Maines, now retired from the police department, accompanied Williams to Ohio. He, too, described a look of horror on Marker’s face. “I don’t have any doubt that she picked his picture,” he said in a recent interview.

Williams handed Marker a felt pen and asked her to mark the photo of the person who had beaten her. She made three marks on the wooden table, just below Smith’s photo.

Williams laid out the second group of photographs, with Littlejohn’s picture on the top row in the middle. She could not identify anyone.

The process raises questions.

The interview was not videotaped, and Marker’s parents were not in the room to see her face. The detectives describe a look of horror or terror, but today the muscles in Marker’s face are too weak for her to smile, laugh or make other recognizable expressions of emotion.

Her mother, Edna Hoisington, said that if anything, her daughter’s face is more expressive today than it was in 1997.

“There was no expression. Even when she could see there was no expression,” Hoisington said. “She’s never cried since she got hurt.”

After Marker returned to her room, Williams spoke with her father, who had been waiting in the hallway. Bud Hoisington suggested that Williams mount the photographs on a board, so that rather than looking down, Marker would be able to look straight ahead at them.

It is not clear from the reports why, if Marker’s identification of Smith had been so solid as Williams and Maines say, the police and her father thought it was important for her to get a better look at Smith’s picture.

“I just suggested it,” her father said recently. “I just thought she might have a better look if it was on an incline.”

Williams attached the group of photographs with Smith’s picture to a board while Hoisington wheeled his daughter back into the room. Something about the experience upset her. She hit the arms of her wheelchair, and when her father asked her to look at the picture, she bit him and made a rude gesture with her middle finger. The outburst ended the interview. It was not clear what might have angered her.

Jim Coleman, a faculty adviser at the Duke Law School Innocence Project, a group that has taken up Smith’s case, said that Marker’s identification of Smith stood out as a weakness to him. The innocence project looks into possible wrongful convictions.

Police officers, prosecutors and jurors look at eyewitness identification as the strongest evidence, when in fact it has been proven to be one of the most unreliable forms of evidence.

“Even in the best of circumstances, cross-racial identifications sometimes are wrong. In this case, the victim was savagely beaten and it wasn’t clear to us that she had any memory of what happened,” Coleman said. “Who knows what she might have been reacting to?”

He said that the lineup leaves many unanswered questions. How could Marker identify Smith when she couldn’t identify her own nephews? Why did she get so upset with her father? Was Smith’s photograph, which was in the center closest to her, the only image she could see clearly with her weakened eyesight? And why did her father suggest a second lineup, with the photographs mounted vertically on a board?

“It says to me that they didn’t have confidence in whatever happened when the pictures were on the table,” Coleman said. “Once you get a positive identification and you think it’s a good one, you don’t go on to try other things. You don’t take the chance.”

Coleman said that the police and prosecutors should have looked into these questions with medical experts who might have been able to explain the gaps in her memory and her behavior. Instead, they assumed that the identification was correct and made plans to bring Marker to Winston-Salem for Smith’s trial.

CHAPTER 7

Star witness

In the months leading up to the trial, Marker’s parents talked about whether she should travel back to Winston-Salem.

She had made more progress than her doctors at Forsyth Medical Center had imagined she could, but in spite of the improvements, her health remained fragile. The injuries interfered with the signals that the brain sends to the lungs, which meant that her breathing was shallow and her lungs often filled with fluid, putting her at risk for pneumonia. Her parents have lost count of the number of times that Marker went to the hospital emergency room that year because she couldn’t breathe. Edna Hoisington said she didn’t want her daughter to make the trip. There had been too many close calls already, and she didn’t want to do anything to jeopardize her daughter’s unstable condition.

That fall, in the weeks leading up to the trial, she said, prosecutors told her that the other witnesses in the case weren’t credible and that they needed her daughter’s testimony.

“I know they were worried about it because they said there was no way they could win the case without her testimony,” Edna Hoisington said. “I’d never been in a plane before. At first I wasn’t going to go. I did it for Jill because they said if they don’t have her testimony they don’t have a case.”

Saunders, one of the two prosecutors who handled the case, said he doesn’t remember talking with the Hoisingtons.

“I don’t think we would have told them that our witnesses were not credible,” Saunders said. “We still had the defendant’s confession.”

The statement signed by Smith puts him at the scene of the crime, but he does not confess to robbing the store or beating Marker. The prosecution wound up not using it.

In spite of her parents’ fears, Marker wanted to testify.

“I said, ‘I can identify who did it to me,’” Marker said in a recent interview. “I could tell who it was.’”

The state chartered a medical plane, paying $7,500 for the roundtrip fare and $2,625 for Marker and her parents to spend the night under an assumed name at Medical Park Hospital, across Hawthorne Road from Forsyth Medical Center.

The trial began on Dec. 1, 1997, almost two years after the crime, an event covered by newspapers and TV stations from several states.

Smith’s attorney, William Speaks, knew how damaging Marker’s testimony could be. In November, he had filed a motion questioning her competency.

Marker had already been declared incompetent in Ohio as far as managing her own affairs. And a civil court in Forsyth County had found her incompetent to handle the litigation stemming from the lawsuit filed on her behalf. Speaks wanted a third finding of incompetence, this time for the criminal trial, arguing that her brain injuries should preclude her from testifying against Smith.

The court agreed to hold a hearing and gave Speaks permission to spend $1,000 on an expert witness to review her medical record.

The legal standard for competency for a criminal-trial witness is low. A potential witness simply needs to be able to tell the difference between right and wrong and understand what it means to take an oath. That’s how children, even very young children, and people with mental disabilities are able to testify in court. The system leaves it up to a jury to decide whether a witness is credible.

Judge Peter McHugh held the hearing on the second day of Smith’s trial, outside of the jury. As Marker was wheeled into the courtroom, McHugh climbed down from the bench so that he could get a good look at the woman seated before him in a wheelchair.

Saunders began by asking her a series of simple questions. Could she see him? Did she know that she was in a courtroom in Winston-Salem? Was it Tuesday?

“Is it good to tell the truth?” he asked.

She nodded her head.

“Should someone who tells a lie be punished?”

She nodded.

Saunders continued, asking whether her father was with her, at her side, and whether her mother was in the courtroom. Yes, she nodded. The only wrong answer she gave was that she could not see that Saunders was wearing glasses when asked.

On cross-examination, Speaks asked her about the attack, repeating some of the questions that police had asked during the investigation. Initially, she told police that her attacker was a deliveryman, but this time she shook her head no, and waved her finger in a gesture that was not clear and not pursued.

She also nodded yes, that the man who hit her came at her from behind. Had she been able to talk, Speaks might have been able to ask her to explain how she could have seen a man who came at her from behind well enough to identify him. But she could not talk, and Speaks did not ask.

Speaks’ expert, Dr. Eugene Benjamin, a neurologist at the Wake Forest University Baptist Medical Center, came next. He described her injuries and the complications she suffered during her recovery, including heart trouble in the emergency room that would have interrupted the blood flow to the brain. Benjamin said that her ability to understand language was impaired and that the original injuries, combined with the complications, would have affected her memory and her eyesight.

His testimony highlighted the difficulties Speaks would have defending Smith. Marker’s inability to speak would make it difficult, if not impossible, for Speaks to cross-examine her. With memory loss and weakened eyesight, how reliable was she as an eyewitness to her own attack and how would she be able to reliably identify her attacker?

“It’s kind of a double-jeopardy thing; she has the brain injury and the speech problem,” Benjamin said in a recent interview. “I think her memory would have been impaired enough that she would not have remembered the attacker.”

In a recent interview, McHugh said that the hearing wasn’t designed to evaluate her credibility. That would be for the jury to decide. The question in his mind was much simpler. Did Marker know right from wrong and could she understand the questions asked of her and answer them?

“If it’s absolutely impossible for a witness to speak, you do the best you can,” McHugh said.

He ruled that Marker could testify. Speaks did not object.

The state now had a star witness.

CHAPTER 8

On trial

Speaks had been a criminal lawyer for 22 years when he met Smith. He had represented many clients he knew were probably guilty of the crimes with which they were charged.

Smith was different.

Speaks did not believe that this ladies’ man and petty thief was capable of such a violent attack.

He wasn’t worried about the statement that Smith had signed, because he knew of other clients who had been pressured into making false statements.

Smith impressed Speaks in other ways. He said that Smith always insisted on his innocence, turning down a plea bargain that would have cut his prison sentence to 11 years if he would admit to the crime.

Smith didn’t cook up an alibi, either. He told Speaks that he had no idea where he had been the night of Dec. 9, 1995. All he knew was that he hadn’t beaten Marker in a place that he had never heard of. Police often see the lack of an alibi as a sign of guilt; Speaks took it as a sign of innocence. A guilty man might concoct an alibi, but there was no reason for an innocent man to remember what he had been doing on a particular night more than a year earlier.

And the rest of the case didn’t add up. Speaks knew about the early suspect in the case, Lamoureux, whom police dropped after Marker said she had been attacked by a black man. Speaks said he thought that Lamoureux was a viable suspect but he lacked proof. And he knew about the conflicting statements provided by the state’s three key witnesses against Smith.

As a court-appointed attorney, Speaks had persuaded the court to pay a private investigator named Darrell Wilson to interview the state’s witnesses the previous summer. He would use those interviews when he cross-examined witnesses to poke holes in the case against Smith.

“My job as a defense attorney is to raise reasonable doubt, not to solve the case, and this case, in my view, is nothing but reasonable doubt,” Speaks said in a recent interview.

Prosecutors took up the first day of the trial establishing the facts of the crime in all its gruesome detail, with testimony from the customers who found Marker at the back of the store and the police officers who collected evidence from the scene.

Jurors saw pictures of the floor smeared with blood and of Marker shortly after surgery, her eyes swollen and her head swathed in bandages. There was testimony from her surgeon, which established the brutality of the attack and the permanent damage that she would suffer. He also testified that she would have suffered amnesia, or memory loss, but this point was not pursued by either side.

The evidence left no doubt that this was a heinous crime.

Prosecutors didn’t present evidence against Smith until the end of the second day, when Andra Wilson took the stand.

She told the jury that Smith had come to stay in her apartment at Skyline Village, not far from Bowman Gray Stadium, the day after Christmas 1995, almost three weeks after the attack. Smith stayed with her until the following spring, she said, and during that time he bragged at least 20 times about the beating at the plant store. Usually they were alone, but once, she said, he boasted about the crime when others were at the apartment.

“I mean we all were sitting around drinking and he was talking he had beat the woman,” she said. “And everyone just joked about it.”

Wilson testified that she decided to call the police in June 1996, leaving an anonymous tip with Crime Stoppers, without any explanation of what prompted the call.

Wilson presented a problem for prosecutors, because she had told police two different accounts of what Smith had admitted to. In her first statement, she said that Smith admitted only to being in the store. In the second, she said that he had admitted to beating the store clerk.

She testified that she lied to police in the first statement because she didn’t want to be involved with the investigation but that she eventually decided to tell the truth.

Speaks had copies of her statements to police and the transcript of the interview with his private investigator. He used both to try to portray her as a liar.

“And do you recall telling him (the private investigator): ‘I know the truth’,” Speaks asked. “‘The truth could set Michael free?’”

“Yes.”

“What is the truth?”

“The second statement.”

“OK. How does that set Michael free?”

“It doesn’t.”

“OK. But you told this man the truth could set Michael free. What did you mean by that?”

“I just wanted him to leave.”

Speaks also tried to suggest that Wilson called Crime Stoppers in a jealous fit because Smith left her for another woman — Valerie Williams.

Wilson acknowledged that she called Crime Stoppers right after Smith moved from her apartment to live with Williams, but she insisted that she and Smith were just friends. She could not explain why she waited until June to call Crime Stoppers, when, according to her testimony, he began bragging about the crime sometime in February.

“What happened in early June 1996, if anything, that caused you to call Crime Stoppers?”

“That night he kept pulling me out of bed, which was the night before.”

“He pulled you out of bed?”

“Yes.”

“And did he leave you and go live with Valerie?”

“Yes.”

“And that’s the reason you called Crime Stoppers, wasn’t it?”

“No.”

“Are you in love with Kalvin?’

“No.”

Speaks did succeed in getting Wilson to testify that she did not know Smith the day of the crime, Dec. 9, 1995. That would contradict later testimony from Eugene Littlejohn, the prosecution’s only eyewitness other than Marker.

The prosecution next called Pamela Moore, whose role in the state’s case was to corroborate Wilson’s testimony. Moore testified that she, too, had heard Smith boast about the crime sometime in the winter of 1996, but she said she assumed that he was joking until after his arrest a year later.

On cross-examination, Speaks played up the idea that Smith may have been joking. “Mike just talk crazy all the time,” Moore said. “Half the stuff he be saying, you know, we didn’t pay no attention.” He also used her to question Wilson’s motive for calling Crime Stoppers. Wilson had insisted that she and Smith were just friends, but Moore testified that there was more to their relationship.

“I cannot say he was going with Andra. He was just staying at her house. But like I say, they were fooling around, I’m quite sure of.”

Her testimony ended the second day of the trial. The next morning, prosecutors called Littlejohn, Moore’s former boyfriend, whose testimony was critical. By then, Littlejohn had given police three different statements about the crime. Now he gave a fourth.

Littlejohn began with what he told police the third time they interrogated him, that he and Smith went to the shopping center together because Smith needed to collect money from someone. They went into the plant store, with Littlejohn staying near the front door while Smith approached Marker at the counter and asked her for money, he said.

Littlejohn testified that Smith grabbed her arm when Marker said she didn’t have any money. He said he did not see what happened after that because he left the store. The prosecutor asked him why he left.

“Because I had a cigarette,” he said.

Then Littlejohn added a new twist. After he left Smith in the artificial-plant store, he said, he went next door to Toys “R” Us for four or five minutes and stole an electronic game. At some point after Littlejohn left the toy store, he said, he saw Smith leave the toy store, too, also with a stolen electronic game.

Littlejohn had told police that he had gone into a Toys “R” Us, but until the trial he never said that Smith went into the busy toy store after attacking Marker. That might have been confirmed with the video from the surveillance camera at the toy store. Police had that tape from the first days of the investigation, but there is no mention in any police reports that either Smith’s image or Littlejohn’s were caught on tape.

Williams said in a recent interview that it was difficult to recognize individuals on the tape because the images were fuzzy. He said he checked and did not see Smith, Littlejohn or any of the other suspects. Speaks said he was under the impression at the time of the trial that the video either had been erased or returned to the store. It’s not clear from the police reports what became of the tape.

Littlejohn went on to testify that he and Smith left the shopping center in a blue Buick and drove back to Wilson’s apartment in Skyline Village.

Saunders questioned Littlejohn about his conflicting statements to police, rattling him.

“Point in fact, Mr. Littlejohn, you’re afraid to admit too much about this, afraid you’ll be charged; isn’t that right?” Saunders said.

Littlejohn was easily rattled by Speaks, too, who confronted him with the conflicting statements to police, as well as to the private investigator he had hired. Speaks also tried to establish that Littlejohn had lied to avoid prosecution.

“After Detective Williams told you (that) you might get 42 years in this case that you began telling the story about Kalvin?”

“Yes,” Littlejohn replied.

When questioned by Speaks, Littlejohn testified that he saw no blood on Smith, but Speaks never pressed him about other significant facts absent from his version of the crime. Whose car did they drive? What happened to the weapon? How was it that they went back to Wilson’s house when, according to Wilson, she and Smith did not know each other until later? And Speaks didn’t ask prosecutors to produce the surveillance video from the toy store, which, if Littlejohn was telling the truth, might have shown Littlejohn and Smith on tape.

The witness Speaks feared most came next — a frail but determined figure in a wheelchair.

Saunders led off with simple questions for Marker. He made sure that she was comfortable and that she remembered she was under oath from her competency hearing the day before. Then he asked Smith to move to the side of the defense table and wheeled Marker to within 6 feet of him so that she could see him clearly with her weak eyesight.

Her father stood beside her chair. Her mother had a front-row seat in the audience.

“Can you see the person in front of you?” Saunders asked.

According to the Journal’s report of the trial, Marker opened her eyes wide, stared and nodded her head, “like a weed bobbing in a breeze.” Then she paused and slowly lifted her right arm and pointed to Smith.

Her mother, seated in the front row, cheered her on, whispering, “Oooh, come on.”

Saunders wheeled her back to where the jurors could see her better.

“Did you recognize that person you just looked at?”

According to the newspaper account, Marker moved her head slowly, at first from side-to-side as if to say no, and then up-and-down as if to say yes.

“Can you tell the members of the jury if that was the man that hurt you at the Silk Plant Forest?”

Marker motioned for her writing board. As she began to write, the jurors strained to see her. Her father started to help her, but the judge stopped him.

When she was finished, Saunders held the board up for the jurors to see. She had written what could have been a poorly figured capital “H” or the word “It.” After that, was a clearly written word “was.”

Interpreted as “it was,” her words meant that Smith was her attacker.

The jury was transfixed.

“You could hear a pin drop,” Speaks now recalls. “You’re aching with sympathy for her.”

Marker’s condition made it all but impossible for Speaks to cross-examine her.

First of all, he did not want to appear to be attacking a woman whose very presence in the courtroom reminded jurors of the savage attack.

Second, because she couldn’t speak, there was no way for her to answer questions that couldn’t be answered with a simple gesture. Speaks didn’t ask any open-ended questions, which might have at least have made her limits clear for the jury.

He couldn’t use the cross-examination for its intended purpose, to point out the gaps in her memory or discrepancies between what she remembered, if anything, and the testimony of other witnesses. He couldn’t ask her to describe the attack itself, so that jurors could judge for themselves whether she was credible. Nor could he question her in any detail about the photo lineup. He couldn’t ask whether she had ever seen Smith’s picture before she identified him, or whether police had asked her any suggestive questions.

In opening arguments, Speaks had told the jury that he would provide evidence pointing to another suspect in the case, a hint that he might discuss Lamoureux. But as the trial unfolded, his plan changed.

Criminal procedure gives defense attorneys the final closing argument if they waive the right to put up defense witnesses. Defense attorneys use that tactic when they want to focus attention on the weaknesses in the prosecution’s case. Speaks said he decided that the last word would carry more weight with the jury than any of the witnesses he might put on.

Thus, jurors never heard from Smith’s private investigator or a friend of Andra Wilson’s who would have testified that she had boasted about inventing the allegations against Smith. Jurors also never heard evidence about the effects of Marker’s brain injuries on her memory or any of the evidence police had against other suspects.

Speaks also advised Smith not to testify. The state had not called the lead detective, Williams, to tell jurors how the case against Smith unfolded, or to produce Smith’s incriminating statement. If Smith did not testify, Speaks could keep the statement out of evidence. Smith did as he was told.

The jurors were surprised that Speaks rested his case without calling witnesses. They heard the judge, McHugh, explain the law, how the burden rested on the state to prove guilt beyond a reasonable doubt, and that Smith had no obligation to testify. Today, some of the jurors said they held it against Smith that his lawyer did not put up a case in his defense.

“The most important thing is the defendant could have gotten on the stand and looked me in the eye and said, ‘You know, Darrell Boone, I did not do this thing. I wasn’t in the area,’” Boone, the jury foreman, said recently. “That was really critical in my thinking.”

Saunders closed first.

“I’m sorry we had to bring Jill Marker back here,” he said. “She wanted to be here. She wanted to help you do your duty. I’m sure that she did that and I’m sure that she identified her attacker.”

Speaks used the last argument to challenge Marker’s identification.

“Whatever black man is sitting there, she’s going to say that’s him. They told her she is going to identify whoever is sitting here in this courtroom,” he said, adding that in her own mind, she probably thought she was telling the truth.

“But she’s not in a position to identify who did this to her. You cannot convict my client based on her testimony.”

The eight women and four men of the jury began their deliberations that afternoon, Wednesday, Dec. 3. They immediately had questions, which persisted throughout their deliberations, about Marker’s testimony. After 20 minutes, they asked McHugh to see the videotape of Marker’s testimony.

The judge refused.

In a recent interview, McHugh said he wanted the jury to consider all the evidence in the case and not focus on Marker’s testimony.

The next day, the jury asked McHugh to explain again what it meant that Marker was competent to testify. He explained the standard, which meant that she knew the difference between right and wrong and was capable of expressing herself. At the end of the next day, the jury announced it was deadlocked. McHugh sent the jurors back to continue deliberating.

On Friday, Dec. 5, just before lunch, the jurors made their third request. They wanted to read the transcript of testimony from Littlejohn. The judge called a recess for lunch to give the court reporter time to type the transcript, which was ready by the time they got back. Less than an hour later, the jury returned with a verdict.

Smith was found guilty of assault with intent to kill and armed robbery. He was sentenced to a maximum term of 28 years and 11 months.

As the verdict was read, Smith grabbed Speaks’ arm with both his hands.

“Mr. Speaks,” he said, “I didn’t do it.”

• Phoebe Zerwick can be reached at 727-7291 or at pzerwick@wsjournal.com

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