The Attack at the Silk Plant Forest

NAVIGATION

Quotes prompt probe by SBI

Detective told paper he hid evidence from Smith defense in '97

By Lisa Hoppenjans

JOURNAL REPORTER

WINSTON-SALEM

Forsyth County District Attorney Tom Keith and Winston-Salem Police Chief Pat Norris have asked the State Bureau of Investigation to look into whether a police detective and an assistant prosecutor concealed evidence in a 1995 assault case.

The Winston-Salem Journal ran a five-part series last week about the investigation and prosecution of Kalvin Michael Smith, who was convicted in 1997 in the near-fatal beating of Jill Marker two years earlier. In the series, Don Williams, who was the lead detective in the case, is quoted as saying that he hid evidence from the defense.

"There's a lot of investigative work you do that you don't put on paper because you open yourself up to the defense bringing it up in court to take it off Kalvin," Williams said.

In another quote in the series, he said that Assistant District Attorney Eric Saunders, who prosecuted the case, told him that including some additional information in the reports would be "giving it away to the defense." Saunders denied ever saying or suggesting that.

"You make accusations that a police officer and one of my assistants hid evidence, that's a serious accusation, and I'm going to have it investigated to the nth degree," Keith said.

Norris said that the SBI was asked to investigate so it could be determined whether her department withheld any evidence in the case or whether Williams was told not to turn over all the evidence.

A U.S. Supreme Court decision requires prosecutors to share information that could help a defendant's case with the defendant's attorney. The failure to share such information can be grounds for a new trial.

Keith said that Williams' quotes in the newspaper article will likely play a major role in any motions that Smith files to appeal his conviction.

Jim Coleman, a faculty adviser to Duke Law School's Innocence Project, said that Keith's request for an investigation is unusual in these types of cases. Coleman's group is also investigating Smith's conviction.

"I think that if, in fact, the district attorney requested the SBI to look into this, that would be an encouraging development because what happens so often in these cases is that misconduct by police and prosecutors often goes unchallenged by law-enforcement officials," Coleman said.

Keith has agreed to let the Innocence Project review the police files in Smith's case.

Keith has also asked that Phoebe Zerwick, the reporter who wrote the series, agree to be interviewed by the SBI about her interviews with Williams. Keith said that Williams left him a telephone message saying that Zerwick had misquoted him. Williams is now retired. He couldn't be reached for comment.

Keith said he wants to find out exactly what Williams said and whether Zerwick may have misheard or misunderstood him. He also suggested that Zerwick might have asked Williams leading questions.

Carl Crothers, the Journal's executive editor, said that the newspaper stands by the accuracy of Zerwick's reporting. He denied Keith's request to allow Zerwick to be interviewed.

Crothers said that allowing reporters to be interviewed about their conversations with sources would damage the newspaper's credibility and news-gathering ability.

"It really ultimately goes to our ability to have sources and maintain the confidence of those sources," he said. "We're unrestrained by the government. You start to allow the government to interview your staff ... and we really lose our ability to report freely and fully."

Keith said he thought that the newspaper would willingly come forward with what he considers to be critical information about a criminal investigation, especially since providing the information would not violate any confidential source.

"Phoebe got almost the entire file from the police department and interviewed me and Eric ... for two hours, and I find it troublesome that we can't get any information back," Keith said. "You guys won't give me air out of a jug."

Norris also said that it would be in the best interest of the community if the Journal cooperated with the SBI.

"These are serious allegations that have been brought about and we want to get to the bottom of it," she said. "We want to make sure that we've done all that we could do to find out the truth."

Keith said he did not know whether he would use a subpoena to force Zerwick to answer questions. Crothers said that the Journal would fight such an action.

North Carolina law gives journalists special protection from being forced to divulge confidential or nonconfidential information gathered in the process of doing their jobs. Anyone trying to force a journalist to testify must prove that the information the journalist has is essential to the case and cannot be obtained from another source.

• Lisa Hoppenjans can be reached at 727-7232 or at lhoppenjans@wsjournal.com

• Journal reporter Patrick Wilson contributed to this report.

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