The Attack at the Silk Plant Forest

NAVIGATION

DA says he won't try to subpoena Journal reporter

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

By Lisa Hoppenjans

JOURNAL REPORTER

WINSTON-SALEM

District Attorney Tom Keith of Forsyth County said yesterday that he would not subpoena a reporter to answer questions about her interviews with the lead detective in the investigation of the near-fatal beating of a woman at the Silk Plant Forest in 1995.

The Winston-Salem Journal refused a request by Keith on Tuesday to allow reporter Phoebe Zerwick to answer questions about her interviews with Don Williams, the Winston-Salem police detective who handled the case.

In a five-part series about the attack on Jill Marker and the conviction of Kalvin Michael Smith two years later, Williams, now retired, is quoted as saying that he withheld some evidence from the reports that he gave to prosecutors.

He also said that Eric Saunders, an assistant district attorney who worked on the case, told him that including some information would be "giving it away to the defense." Saunders told the Journal that he never made such a comment.

Williams' comments in the series prompted Keith and Police Chief Pat Norris of Winston-Salem to ask the State Bureau of Investigation to investigate whether some evidence was withheld. Williams has told SBI agents that the statements attributed to him were incorrect.

Carl Crothers, the executive editor of the Journal, said that the newspaper stands by the accuracy of the story.

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.

At a news conference with Norris yesterday, Keith said that he wanted Zerwick to answer questions from SBI agents about the context of Williams' comments. However, a state law would likely prevent him from successfully subpoenaing her, he said.

The 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.

"It gives the media a very powerful privilege," Keith said. "And it's almost impossible to get through that."

Keith said he had read only the first part of the five-part series, which ended last week, and that he was not familiar with the case. But he said he had no reason to doubt Smith's guilt.

"He's been through all the appeals. I base my opinion on the trial and the court of appeals and his competent counsel, and that's how I know if someone's guilty or not," Keith said.

He said that the SBI has already interviewed Saunders and another assistant district attorney who worked on the case. Agents also interviewed Williams, who said that he turned over all the relevant evidence, and have taken paperwork on the case that Williams had in his home.

The paperwork from Williams' home will be compared to files in the district attorney's office and police department to see if Williams' file includes any additional information.

In the series, Williams is quoted as saying, "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."

Two women who knew Smith in the mid-1990s told the Journal that they were interviewed by police and told police that Smith was not a violent man. Those interviews might have helped Smith's defense, but they were not part of the police reports provided to his defense attorney.

The women did not remember if Williams was one of the officers who interviewed them.

Keith said that the SBI has nearly completed its investigation, and he did not have plans for it to investigate whether Williams had evidence about the case that he did not write down. But he also said he would be open to suggestions from Duke Law School's Innocence Project, which is also investigating Smith's conviction, for other people to be interviewed by his office, the police department or another agency.

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

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