DNA test results mark the latest chapter in Silk Plant Forest saga

by Keith Barber

Winston-Salem police Chief Scott Cunningham announced on July 21 that a second round of “touch” DNA testing on clothes worn by Jill Marker did not reveal male DNA.

“It is unknown if DNA was present on the clothing at the time of the attack and had deteriorated over the years,” Cunningham said in a statement. “It is also unknown if DNA was ever present on the clothing. These results do not prove or disprove the guilt or innocence of any person associated with this crime.”

Cunningham said detectives delivered new cheek swabs taken from Marker and Kalvin Michael Smith, the man convicted of brutally assaulting Marker while robbing the Silk Plant Forest shop on Dec. 9, 1995, to LabCorp in Research Triangle Park for comparison purposes. Cunningham also said blood samples from a “subject of interest” were delivered to LabCorp for DNA comparison.

On March 4, evidence gathered from the crime scene of the Silk Plant Forest shop was sent to the State Bureau of Investigation Crime Lab for testing after an internal police department review of the case revealed that some evidence had never been tested. In May, Cunningham announced the SBI tests revealed no new evidence. The evidence tested by the SBI only revealed DNA links to Marker. However, some hair fibers found on Marker’s clothing didn’t belong to the victim, nor did they belong to Smith or any other suspect in the case, Cunningham said.

At that time, Cunningham said if the testing yielded any DNA profiles other than Marker’s, those samples would be compared to DNA samples taken from Smith and Kenneth Lamoureux. For the first four months of the police investigation, Lamoureux was the prime suspect in Marker’s assault. Smith is currently serving a 23-29-year prison sentence. He has steadfastly proclaimed his innocence.

Jim Coleman, a Duke law professor, has served as one of Smith’s attorneys since the Duke Innocence Project became involved with the case in 2004.

Coleman said that former Forsyth County District Attorney Tom Keith notified him in 2007 that police had discovered Jill Marker’s clothes and other evidence gathered during the Silk Plant Forest investigation had never been tested. The other evidence included two cigarette butts police believed were seized at the crime scene. In March, Cunningham included the cigarette butts in the collection of new evidence to be tested but quickly issued a retraction.

It turns out the cigarette butts did not come from the Silk Plant Forest shop but from a police station interview of Lamoureux in December 1995, Cunningham said.

The lack of documentation and confusion regarding the cigarette butts, and the fact that three years elapsed from the time the Winston- Salem Police Department first discovered the evidence had not been tested to the time it actually sent out the evidence for testing reveals a disturbing pattern of behavior, Coleman said.

“Sloppy, careless, indifferent, and that’s exactly what the Silk Plant Forest Citizens Review Committee found, too,” Coleman said. “So that’s not just my judgment, that’s the judgment of the committee.”

In its final report, the Silk Plant Forest Citizens Review Committee stated that it “does not have confidence in the investigation, the information in question, or the result of the investigation.” After a 21-month fact-finding review of the case, a substantial majority of committee members concluded that there was “no credible evidence that Kalvin Michael Smith was at the location of the Silk Plant Forest store… at or about the time that the crime for which he was charged was committed.”

The revelation that some of the evidence in the Silk Plant Forest case had never been tested sparked a war of words between Coleman and Keith. In 2007, Keith told a reporter for the Winston-Salem Journal that he was directing the Winston-Salem Police Department to send cigarette butts taken from the crime scene to the SBI Crime Lab for testing. On March 15, 2010, Winston-Salem City Manager Lee Garrity denied Keith’s statement, saying the police department never received such an order from the former district attorney. Keith responded to Garrity’s statement, saying that neither the Forsyth County District Attorney’s office nor the Winston-Salem Police Department failed to follow up on DNA retesting in the case, and placed the blame on Coleman. Keith claims that Coleman’s concerns about making sure the evidence was sent to a lab with the most sophisticated equipment for recovering touch DNA dissuaded him from having the evidence tested. Coleman characterized Keith’s statement as “absurd.”

Coleman said he reached out to Chief Cunningham when the issue arose again in March.

“One of the things I wanted to make sure that when the blouse was tested for DNA that it be done by a lab that had the ability to test for touch DNA — DNA that can be transferred by a touch,” Coleman said. “It’s really important in this case because Eugene Littlejohn in his testimony said Kalvin grabbed Jill Marker by the arms. That kind of rough handling would have resulted in touch DNA being on the blouse.”

Eugene Littlejohn served as the primary witness for the state at Smith’s 1997 trial. Littlejohn testified that on Dec. 9, 1995, he saw Smith grab Marker with both hands inside the Silk Plant Forest shop and ask for money. Littlejohn said he then left and went to the Toys R Us store adjacent to the shop.

Littlejohn admitted at trial that he gave police four or five contradictory statements regarding the events of Dec. 9, 1995. In his second statement to police, Littlejohn told investigators he rode to Silas Creek Crossing Shopping Center with Smith, Pamela Moore and Andra Wilson in Wilson’s car and that he and Smith got out of the car. At trial, Littlejohn admitted that Wilson did not know Smith when the crime occurred and therefore, Smith could not have traveled to the shopping center in Wilson’s car.

On cross-examination, Littlejohn stated that he talked with former Winston-Salem police Detective Donald R. Williams, the lead investigator in the case, who told him he could get 42 years in prison for this case. Littlejohn admitted that it was after that conversation with Williams that he began giving police statements about Smith.

In an e-mail message, Coleman advised Cunningham to send Marker’s clothes to Orchid Cellmark, a Dallas-based firm with a lab in Tennessee, for DNA touch testing rather than the SBI Lab. Coleman said the original recommendation came from Kendra Montgomery-Blinn, director of the NC Innocence Inquiry Commission. Montgomery- Blinn recommended Orchid Cellmark because LabCorp had recommended that company to her as having the most sophisticated equipment for recovering touch DNA, Coleman said.

Montgomery-Blinn confirmed she recommended Orchid Cellmark to Coleman.

“I didn’t understand what difference it made to the state which laboratory it went to if the alternative laboratory was recognized as the best in the country for recovering touch DNA,” Coleman said.

However, Chief Cunningham did not respond to Coleman’s e-mails. Cunningham did not immediately return phone calls or e-mails for this story.

Based on a copy of LabCorp’s results, Coleman said it appears lab technicians didn’t test the hair fibers found on Marker’s blouse, but tested the swabs from the blouse’s sleeves.

“What their report says is interesting,” Coleman said. “When they did this it failed to yield a sufficient quantity and or quality of male DNA. It doesn’t say it failed to yield any male DNA — that is exactly what our concern is. This is the second lab to do this and each time the sample is degraded. That means if next time it’s done by [Orchid] Cellmark, they’re working with even less evidence.”

The DNA test results notwithstanding, the case of Kalvin Michael Smith is far from over, Coleman said. On Jan. 12, Coleman filed a petition for a writ of habeas corpus in the US District Court for the Middle District of North Carolina on Smith’s behalf. The grounds for the petition are as follows: the state failed to disclose favorable evidence to defendant in violation of Brady v. Maryland; Smith’s con viction was tainted by false evidence; the trial testimony of Jill Marker was the product of an unduly suggestive pretrial process that made it constitutionally unreliable; and William Speaks, Smith’s trial attorney, provided ineffective assistance of counsel.

The state responded to Smith’s petition, stating that it is barred by the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996, and asked for a dismissal. In April, Smith’s defense team filed its opposition to the state’s motion to dismiss, claiming the state’s motion lacks merit.

Smith’s lawyers argue the state suppressed critical exculpatory evidence including the fact that police detectives showed Jill Marker photographic lineups on Oct. 31, 1996, that contained a photograph of Smith and that Marker did not identify Smith as the person who assaulted her; that during an August 1997 polygraph examination, Littlejohn denied he was present when Jill Marker was robbed and the polygraph examiner deemed his statement to be truthful; and that a review of a Toys R Us surveillance videotape made on the night Marker was attacked showed that no black men entered the Toys R Us store during the time period that Littlejohn testified he and Smith entered the store. All of this evidence didn’t come to light until Smith’s second hearing for a new trial in January 2009, so the statute of limitations did not run out, the petition states. Smith’s defense team is now awaiting a response from the court.

A second round of DNA “touch” testing on clothes worn by Jill Marker on Dec. 9, 1995 — the night she was brutally assaulted — revealed no male DNA, which neither proves nor disproves Kalvin Michael Smith’s claims of innocence, said Winston-Salem police Chief Scott Cunningham. (file photo)