The Attack at the Silk Plant Forest

NAVIGATION

DA denies misconduct in case

Keith says that his assistants violated no rules in investigating a near-fatal beating in 1995

By Paul Garber

JOURNAL REPORTERS

WINSTON-SALEM

Tom Keith, the Forsyth County district attorney, said yesterday that two of his assistants did not violate any rules while handling the prosecution of a Winston-Salem man in the near-fatal beating of a woman at a local store in 1995.

The State Bureau of Investigation interviewed former police Detective Don Williams and Assistant District Attorneys Eric Saunders and Mary Jean Behan as part of a two-week investigation after the Winston-Salem Journal published a five-part series in November about the attack on Jill Marker at the Silk Plant Forest.

The man, Kalvin Michael Smith, was convicted in the attack two years after the crime.

The series raised numerous questions about the investigation and prosecution.

In November, Keith and Police Chief Pat Norris asked the SBI to investigate whether Williams and the two prosecutors had withheld evidence from Smith's attorney.

In a news conference held at the police department, Keith said that the reports that Williams turned over to prosecutors were nearly identical to reports that prosecutors gave to defense attorneys as required by laws covering pretrial rules of discovery.

The Journal's series, however, never questioned whether Williams' reports differed from those held by the prosecutors. Keith acknowledged that he was unable to answer one of the key questions raised in the Journal's series: whether Williams' reports had omitted information that could have benefited Smith's defense.

"I don't know how you prove the negative," Keith said. "That's not my job - to prove something I didn't know about."

On a wall of the room where the news conference was held, Keith posted 18 documents, nine of which detailed information from Williams' report and nine that detailed information from the prosecutors' report. The only differences between the two were "innocuous" and would not have helped Smith's defense, Keith said.

Investigators are required to turn over only information that could be helpful to the defense, not every dead-end trail they look into, Keith said.

"We feel we have the right man in jail," he said. "This issue is not his guilt or innocence but whether the district attorney and the police handled the case correctly."

Smith's attorney, Jim Coleman, said that the question of whether Williams' reports matched those of the prosecutors was not an issue.

"If that's all they did, it was pretty much a waste," said Coleman, a faculty adviser to Duke Law School's Innocence Project. "I don't think they investigated what the issue was."

Rather than comparing the two sets of reports, investigators should have focused on what information Williams developed that never made it into reports to prosecutors, Coleman said.

For the series, the Journal talked with Williams for more than five hours in three separate interviews in his home. The series showed that police did not thoroughly investigate other suspects in the Marker attack, and focused on Smith after a jealous girlfriend turned him in to police a year after the attack.

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

For example, he said, he looked into an anonymous tip about Marker's husband, Aaron. The caller told him that Aaron Marker owed Smith money for drugs and had 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 on that 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," Williams said in July. He also interviewed two women who knew Smith at the time of his arrest. They told him that Smith was not violent, directly contradicting one of the prosecution's star witnesses. In the case files, there are no reports of the interviews with those women.

Williams also said that Saunders had told him that including some information in police reports would be "giving it away to the defense." Saunders told the Journal that he never made such a comment.

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

Williams said that his reports didn't include that incident because he didn't want Smith's attorney to find out about it.

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

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

Williams has declined to comment since the series was published. According to Keith, Williams told SBI investigators that the Journal took his statements out of context. The Journal stands by its reporting, Managing Editor Ken Otterbourg said yesterday.

There was no physical evidence linking Smith to the attack inside the Silk Plant Forest. Police and prosecutors relied on witnesses who gave inconsistent accounts of the crime and who were not closely questioned about those inconsistencies either by police, prosecutors or Smith's former defense attorney.

Besides the witnesses, the other key moment in Smith's trial came when Jill Marker identified him - despite brain injuries that her own medical experts said made it unlikely that she could recall her attacker. That was not clearly brought out at Smith's trial.

Keith said that yesterday's news conference was just to deal with the reports. He said he will meet with Coleman on Monday to discuss the facts of the case. It will be up to the courts to decide questions related to Smith's guilt or innocence, he said.

Coleman said he hopes to begin reviewing police reports in the case and is optimistic that he will be given access to all the case's relevant documents.

• Paul Garber can be reached at 727-7302 or at pgarber@wsjournal.com

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