Committee gives vote of no confidence in Smith investigation

by Keith Barber

The Silk Plant Forest Citizen Review Committee put the finishing touches on its final report to Winston-Salem City Council during the group’s final scheduled meeting on July 16. Most likely, the report will be presented to the city council sometime next month.

Hours before the committee held its final meeting, Assistant City Attorney Al Andrews released the group’s interim report — which was sent to city council on March 17 — to individuals and organizations that requested a copy in writing.

Andrews said the city could not release the voluminous appendix to the report without a judge’s order due to sensitive personnel information contained in the documents. The appendix contains the raw data collected by the committee’s investigators, Lt. Joseph Ferelli and Sgt. Chuck Byrom.

Jet Hollander served on the Sykes Administrative Review Committee, which investigated Winston-Salem Police Department procedure in the Darryl Hunt-Deborah Sykes murder case. He is also an outspoken advocate for Kalvin Michael Smith, the man convicted of brutally assaulting store clerk Jill Marker while robbing the Silk Plant Forest shop in December 1995. Hollander said the most important thing is for the city council to act swiftly to have the report’s appendix released publicly.

“That’s the highest priority,” Hollander said. “Don’t release just the report but the exhibits and the appendix. That will be the best way to understand what happened in this case and restore confidence moving forward.”

Hollander criticized the Silk Plant Forest committee for voting to move its findings and conclusions regarding the raw evidence to the appendix. He pointed out the city of Winston-Salem released 7,000 pages of the Sykes Administrative Review Committee report, and believes they should do the same with the Silk Plant Forest report.

“When [the committee] was set up, it was set up that everything would be recorded and no one was promised anonymity,” Hollander said. “It was discussed up front that everything would be released. Everything has to go through a judge and just like in the issue of the subpoena of [former Winston-Salem police Detective] Donald R. Williams, the court has to decide.”

Williams, the lead investigator in the Silk Plant Forest case, was compelled by a judge’s order to testify before city council about his role in the case on June 11. The transcript of Williams’ testimony will not be included in the committee’s summary report, but in the appendix.

“It’s the raw interviews that are important,” Hollander said. “Time is wasting. There’s a guy in prison. I didn’t hear anybody on the committee say that Smith’s arrest and conviction were justified by the facts.”

Hollander referred to a committee resolution on page 39 of the redacted report. The committee passed the resolution on March 17 by a 7-2 vote. The resolution states in part, “At present, we are aware of no credible evidence that Kalvin Michael Smith was at the location of the Silk Plant Forest Store in Winston-Salem, North Carolina, on December 9, 1995, at or about the time that the crime for which he was charged was committed.”

Hollander said the committee’s report gives Smith’s defense team of David Pishko and James Coleman of the Duke Innocence Project ample material for an appeal. Coleman attended the final meeting of the Silk Plant Forest Committee on July 16. He said an appeal of Judge Richard L. Doughton’s denial of Smith’s plea for a new trial would be filed with the NC Court of Appeals. As of July 24, Susan Scoggins, deputy clerk for the NC Court of Appeals, said no appeal had been filed on Smith’s behalf.

The report

The 39-page redacted version of the report provides a broad overview of the 1995 Silk Plant Forest-Jill Marker assault case and some very specific details about the Winston-Salem Police Department’s investigation. It documents how the Winston-Salem City Council formed the Silk Plant Forest Citizen Review Committee in October 2007 after an internal administrative review of the case by the Winston-Salem PD failed to “allay the concerns of many in the Winston-Salem community.”

In response, the city council created the citizen committee and charged it with conducting a “fact-finding review.” The council instructed the committee make recommendations to police procedure based on its findings and forward all information that might have a bearing on the guilt or innocence of Kalvin Michael Smith — the man convicted of the crime — to Smith’s defense attorneys and Forsyth County District Attorney Tom Keith.

Regarding the committee’s overall assessment of the Winston-Salem Police Department’s investigation of the Silk Plant Forest case, the report states: “The committee does not have confidence in the investigation, the information in question, or the result of the investigation.”

Polygraph examinations

The report points out that the prosecution’s case against Smith— who has served 13 years of a 29-year prison sentence for the crime — was based in large part on the statements of four witnesses. Andra Wilson, Pamela Moore, Eugene Littlejohn and Valerie Williams all told police they heard Smith say he had beaten a store clerk.

“These four statements about Smith’s alleged admissions were neither verified nor refuted by polygraph examinations,” the report states.

Police investigators never asked Moore or Valerie Williams to take polygraphs. Wilson and Littlejohn took polygraphs but at no point did the examiner ask them whether Smith had made any incriminating statements to them. The report focuses on Littlejohn’s trial testimony that he accompanied Smith to the Silk Plant Forest shop and witnessed Smith grab Marker and demand money.

“Yet during the two polygraph examinations that the investigators administered to Littlejohn, they did not ask him whether he had accompanied Smith to the Silk Plant Forest and had seen Smith grab Jill Marker and demand money,” the report states. “In other words, they did not ask him about the crucial points in the state’s case against Smith.”

Kenneth Lamoureux, an early suspect in the assault case, submitted to a polygraph examination. Former police Detective Lonnie Maines administered the polygraph and noted in a report that Lamoureux’s answer to the question, “Did you strike, push or assault a woman inside the Silk Plant Forest?” indicated “a great deal of deception.”

The committee asked for a blind reading of Lamoureux’s polygraph charts, but inexplicably, the charts could not be found in the police files.

One of the biggest controversies in the case involves whether or not Smith took and passed a polygraph examination in 1996. Williams, the lead investigator in the case, testified under oath that Smith had taken a polygraph and passed during a pre-trial hearing in 1997. However the internal report conducted by the department in 2007 concluded that Williams was mistaken and the results were inconclusive.

The committee’s report concludes that “the greater weight of the evidence indicates that Smith took and passed a polygraph examination on or before July 22, 1996.”

Investigatory interviews

The report notes that among the four key prosecution witnesses in the Silk Plant Forest case, three of them — Valerie Williams, Pamela Moore and Eugene Littlejohn — have recanted their statements. Valerie Williams, Moore and Littlejohn have all claimed they were coerced by police investigators to give false statements. The report also points out that the three-hour interviews of

Smith and Valerie Williams at the police station on Jan. 24, 1997 were not tape-recorded. Those interviews led to Smith’s arrest for the crime. Smith has steadfastly proclaimed his innocence and stated under oath that Williams and former police Detective Randy Weavil used trickery and deception to coerce him into signing a false statement about his whereabouts at the time of the attack on Marker.

The report notes that contemporaneous records of those interviews — written statements, tape-recorded statements, and written summaries — do not provide a complete picture of what the investigators said to the witnesses during their interviews.

The report states the policy adopted by the police department in 2007 regarding mandatory videotaping interviews of victims, witnesses and suspects in serious criminal cases addresses many of the issues raised in the Silk Plant Forest case.

The committee makes a number of recommendations to police department procedure regarding investigatory interviews including clarification of what interviewing techniques are permissible and impermissible.

Photographic line-ups

The committee’s report breaks down the 10 photographic line-ups requested or conducted by Williams and how they were constructed, presented and documented. The report reveals that Lamoureux was identified by two witnesses, Cynthia Cloud and Stella Goode, as being in the Silk Plant Forest shop the night of the attack on Marker.

The report also addresses the Oct. 31 1996 interview of Marker by Williams and former police Detective Mike Barker. It states that although the interview was videotaped, it was never mentioned in Williams’ supplemental report. Based on the videotaped evidence, the report concludes that Marker was shown four line-ups and six individual photographs. The first line-up included Kalvin Michael Smith and Marker did not make a positive identification. The report states the fourth line-up included Kenneth Lamoureux, and when Marker was asked if she recognized anybody in the photos, she held up three fingers. Lamoureux was in the number-three position.

The report refers to a 2004 series of articles published in the Winston-Salem Journal in which Williams told reporter Phoebe Zerwick he had “reams of information that he never included in his reports and that he told the District Attorney’s Office about this.”

The report goes on to say that neither Williams nor Zerwick nor District Attorney Tom Keith cooperated with the committee regarding its investigation into the veracity of Williams’ statement to Zerwick. If Williams withheld exculpatory evidence, he would have been in clear violation of police department policy, the report states.

The committee’s recommendations include a uniform method of preparing prosecution booklets and a uniform way of transmitting information between the police department and the DA’s office.

The last word

During the July 16 meeting, committee members each gave their final comments on the work they had performed. Committee member Sharon Cook said she hopes the members never lose sight the context in which this investigation took place — within the historic culture of the Winston-Salem Police Department.

Once the committee adjourned for the last time, committee member James Taylor — who is running for city council from the Southeast Ward — said he could now speak as a private citizen.“

An injustice has been committed against Kalvin Michael Smith,” Taylor said.