The Attack at the Silk Plant Forest

NAVIGATION

Attorney says SBI should widen probe of case

Questionable evidence in entire Smith case should be considered, says advisor to Innocence Project

By Lisa Hoppenjans and Phoebe Zerwick

JOURNAL REPORTERS

WINSTON-SALEM

An attorney for Kalvin Smith, who was convicted in a near-fatal 1995 attack on a woman at a local store, said yesterday that he wanted the State Bureau of Investigation to widen its investigation of the case.

The SBI began an investigation last month at the request of Forsyth District Attorney Tom Keith and Winston-Salem Police Chief Pat Norris into whether police and prosecutors withheld evidence from Smith's defense.

A five-part series in the Winston-Salem Journal last month documented weaknesses in the case against Smith, who was convicted in the beating of Jill Marker inside the Silk Plant Forest, where she was assistant manager.

Keith said that the SBI had completed the requested investigation, having interviewed the lead detective, Don Williams, and two prosecutors, Eric Saunders and Mary Jean Behan. He said he would ask the SBI to investigate other issues at the request of the Duke Law School Innocence Project, which has taken on Smith's case.

Smith says he is innocent in the beating of Marker, who was found in a pool of blood at the back of the store where she worked in Silas Creek Crossing. She was three months pregnant. Smith is serving a prison term of nearly 29 years.

Jim Coleman, a faculty adviser to the Innocence Project, said he hopes that the SBI will look at questionable evidence in the entire case against Smith.

"I don't think it's my job to identify for (Keith) things that they ought to look into," Coleman said. "I would like the SBI to conduct an aggressive investigation into how this case was handled as opposed to simply investigating a series of discreet matters."

Coleman said he did give Keith information suggesting that someone may have tampered with Marker's ventilator while she was a patient at Forsyth Medical Center. Keith declined to comment yesterday on the SBI investigation.

In interviews this summer, Williams said that a nurse in the hospital's intensive-care unit told him that someone tampered with Marker's ventilator. Marker was a patient at Forsyth for nearly five months, delivering her son in April 1996 while she was still unconscious.

Williams said he did not report the incident because he did not want Smith's defense attorney to find out about it.

"Like I said, the nurses couldn't be specific," Williams said during one interview in his home.

"If you put that in a police report ..." Williams said in another interview, "the defense attorneys would go straight to that to rule out Kalvin."

Keith said yesterday that Williams told the SBI that he did not exclude significant information from his reports.

"In most cases there are myriad dead-end leads which are not exculpatory ... which many officers don't think are important enough to give us," said Keith, who also said he encourages police to turn over all notes and reports to his office.

Exculpatory evidence is anything that could help a defendant's case.

Withheld evidence was a factor in two recent wrongful-conviction cases in North Carolina.

In February, Darryl Hunt was exonerated in the 1984 murder of Deborah Sykes after DNA testing identified another man, who had been a suspect in the case as early as 1985. Hunt served 18 years in prison after twice being convicted of murder.

Willard Brown is scheduled to plead guilty next week to murder, rape, kidnapping and robbery in the Sykes case. According to interviews, the police briefly considered Brown a suspect in the Sykes case in 1985 after he was identified as a suspect in another downtown rape. But the police already had Hunt in custody, and never pursued Brown; the information about him was not made part of the Hunt case file at the time.

In 1986, police interviewed Brown in a reinvestigation of the Sykes case, but a two-page report of that interview was sealed by a judge, along with many other documents, and never turned over to Hunt's defense.

Mark Rabil, Hunt's defense attorney, said that if he had had the 1986 report, he believes he would have looked into Brown and possibly had his DNA tested as early as 1994.

"There's been a culture of prosecutors and police officers hiding evidence so as not to jeopardize their prosecution and that's not right, as the Hunt case and others have shown," Rabil said.

Also in February, a jury acquitted Alan Gell during a retrial in the 1995 killing of a retired Bertie County truck driver after defense attorneys found evidence that prosecutors had failed to disclose information that the man was killed while Gell was in jail.

Keith and Norris asked the SBI to look into whether evidence was withheld in Smith's case after the Journal published its series, Attack at the Silk Plant Forest.

Williams has declined to comment to the Journal since the series was published. In an interview last week with WXII Channel 12, Williams said he did not withhold any evidence.

"Never have I ever withheld any evidence in any case, especially the Jill Marker case," Williams said. "There is no information that I have that would have exonerated Kalvin Smith."

In interviews last summer, Williams told the Journal seven different times that he did not document information because he didn't want to damage the case against Smith.

For example, he said he looked into an anonymous tip he got about Marker's husband, Aaron. The caller told him that Aaron Marker owed Kalvin Smith money for drugs, and told Smith to collect the money from Jill Marker. Williams said he was never able to link Aaron Marker and Smith. The work he did to investigate the lead is not part of the police reports.

"You just couldn't put it in there because the defense attorneys would pick up on that," he said last July.

There was no physical evidence to link Smith to the attack inside the Silk Plant Forest. Police and prosecutors relied on witnesses who provided inconsistent accounts of the crime, and who were not closely questioned about those inconsistencies.

A key moment during Smith's trial came when Marker identified him, despite brain injuries that medical experts say make it unlikely that she could have a reliable memory of her attacker.

Some key questions involved the information that was not in the police reports and therefore was not released to Smith's defense attorney at the time.

A landmark U.S. Supreme Court decision in 1963 requires prosecutors to share information with defense attorneys that can help prove innocence by pointing to other suspects or impeaching the state's witnesses. Failure to share such information can be grounds for a new trial, if a judge decides that it is significant enough to affect a jury's deliberations.

In three interviews totaling about five hours last summer, Williams described leads not mentioned in his reports. In addition to the incident he described about the ventilator, he said he had a photo of an early suspect in the case posted in the nursing station outside Marker's room; no mention is made of this in the reports.

Freda Springs, a spokesman for Forsyth Medical Center, said yesterday that she could not confirm the ventilator incident.

"I can't comment on the medical care that any patient has received," she said. "If something like what you're describing has happened, it would very likely generate a police report or something in the medical record."

Marker's mother and her former husband, both reached in Ohio by telephone, said yesterday that they had never heard that anyone had tampered with her ventilator. Coleman said he heard about the incident from a confidential source. He also said that a security guard at the hospital, "had a vague recollection of something happening but didn't remember what it was."

Also missing from police reports were interviews with two women who knew Smith. They told the Journal that they both told police that Smith was not violent.

Coleman said he hopes that Keith will open Smith's files for his review. He said he believes that there could be grounds for a new trial in the undocumented evidence. Keith has said he would open the files to Coleman, possibly by next week.

Legal experts said yesterday that it can be hard to win a new trial based on withheld evidence. In Smith's case, prosecutors shared what they had with William Speaks, who was then Smith's attorney.

"It sort of depends so much on the context of the case," said Tom Ross, a retired Superior Court judge and the executive director of the Z. Smith Reynolds Foundation. "Some things, if you look at them in isolation, you might say this is exculpatory and when you look at it in the context of the case it's not, and vice versa."

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

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

« back

A Special Report