Evidence sparks public dispute between former DA and innocence crusader

by Keith Barber

Winston-Salem Police Chief Scott Cunningham’s announcement earlier this month that some of the evidence seized by police investigators during their investigation of the 1995 Silk Plant Forest-Jill Marker assault case was never sent out for testing has resulted in a war of words between former Forsyth County District Attorney Tom Keith and James Coleman, the director of the Duke Innocence Project. The discovery of the untested evidence resulted from the Winston-Salem Police Department’s internal review of the case. The evidence — comprised of Jill Marker’s clothes and a piece of cardboard with blood and hair on it— has been sent to the SBI Crime Lab in Raleigh for testing “to determine if it contains any identifiable forensic information,” Cunningham said. Originally, Cunningham included cigarette butts in the collection of new evidence but has has since issued a retraction. He said the cigarette butts did not come from the Silk Plant Forest shop but from a police station interview of Kenneth Lamoureux, an early suspect in the case, in December 1995. The cigarettes were not among the items sent to the SBI Crime Lab after all. The items are listed on inventory sheets of physical evidence seized by police investigators, which were provided to both the district attorney’s office and Kalvin Michael Smith’s defense lawyer, William Speaks, prior to the 1997 trial. However, no one ever asked that it be tested, Cunningham said. A Forsyth County jury convicted Smith of brutally assaulting Marker during an armed robbery of the Silk Plant Forest shop in December 1995. He is currently serving a 23 to 29-year prison sentence. Smith has steadfastly proclaimed his innocence. 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. Winston-Salem City Manager Lee Garrity denied Keith’s statement on March 15, saying the police department never received such an order from the former DA. Several days later, Keith issued a statement via e-mail claiming that neither the district attorney’s office nor the police department failed to follow up on DNA retesting in the case, and placed the blame for the evidence never being tested squarely on Coleman. Keith claims that the cigarette butts were never sent to the SBI Crime Lab due to Coleman’s objections based on “scientific grounds.” Keith included a portion of an e-mail sent on Aug. 22, 2007 by Coleman to the district attorney’s office. In the e-mail, Coleman warns Keith about sending cigarette butts found inside the Silk Plant Forest shop to a lab that doesn’t have the capacity for the most advanced testing. The e-mail was included in Keith’s “partial reconstruction” of the e-mail exchange between the district attorney’s office and Coleman during the period from July to August 2007. Keith prefaced his statement with the disclaimer that the entire e-mail file was given to the NC Attorney General’s office in September 2007, so the reconstructed e-mails may not be entirely accurate, “but these are from what we can retrieve from the database available at the [DA’s] Office,” he said. Coleman characterized Keith’s assertion that the district attorney’s office dropped its testing of the evidence due to any objection by him or the Duke Innocence Project as absurd. “Why would he stop DNA testing when all I asked him was to discuss where he was sending the evidence?” Coleman said. “He had already told me that he had requested the SBI to test the evidence. It’s clear from my e-mails that what I was focused on was the evidence related to the cigarette butts that he first claimed were found in the store.” After Keith’s statement and reconstruction of e-mails, Coleman released the transcript of a number of e-mails between his office and the district attorney’s office during the same time period. The e-mails reveal that the dialogue between Coleman and Keith’s office began breaking down in late August 2007. An exchange dated Aug. 29, 2007 highlights the heated nature of the conversation. In an e-mail sent by Coleman to Assistant District Attorney David Hall, Coleman states: “You don’t seem to have an open mind about any of this. I was convinced of that when you made your presentation in Tom’s office, going so far as to suggest that Eugene [Littlejohn] assaulted Marker and that he and Kalvin smoked cigarettes while waiting in the store. The facts are what they are, whether they make sense to you or not. You seem more interested in theories than facts. Your representation, repeated to a reporter, that the police found the cigarette butts at the front of the store was irresponsible. You simply made it up.” Hall’s rebuttal was equally pointed. “I am going to ask that you refrain from making any further personal attacks in your correspondence,” Hall wrote. “I can not speak for Tom [Keith] or [Assistant DA] Mary Jean [Behan] but I find your accusations unnecessary and hurtful…. I have not ‘made up’ anything related to this case, and I deeply resent such an accusation. You need to be more circumspect when impugning another attorney’s integrity.” Keith claims that the district attorney’s office cut off contact with Coleman and turned over the case to the NC Attorney General’s office due to comments Coleman made about Behan to a reporter. Coleman explained that his comments centered on an Oct. 31, 1996 videotaped interview of Jill Marker by former police Detective Donald R. Williams. Coleman requested an opportunity to interview Behan to ask if she knew that Williams had shown Marker lineup photos that included Smith. Coleman claims Keith never let him interview Behan. During Smith’s plea hearing for a new trial in January 2008, it was revealed that Behan and the district attorney’s office failed to share with Smith’s defense team the lineup photos that Williams showed to Marker in the 1996 interview. Despite Keith’s claims, Coleman said he always maintained that if Behan had known about the lineup photos, she would’ve given the lineups to the defense. “I don’t think she would have intentionally not given it to the defense,” Coleman said. “However, if she did know about it, it was withholding evidence, which was what [former Durham County District Attorney Mike] Nifong did.” Tom Keith did not return calls for this story. Coleman said Cunningham’s recent revelation and subsequent retraction about the cigarette butts is disturbing on a number of levels. “My concern with [Chief Cunningham] and Keith is, why did they think they came from the scene?” said Coleman. Coleman also took issue with Keith using a “partial reconstruction” of old e-mails as the basis of his rebuttal of Cunningham’s statement the district attorney’s office never requested the evidence be tested. “Why would he issue something that he didn’t know for sure is complete or accurate?” Coleman said. “That’s absurd on its face that he’s going to test or not test something based on an e-mail from me. Why would he not test that if I told him not to test it? There’s no chance of that.” Coleman confirmed that Smith submitted to DNA testing two weeks ago at the police department’s request. Coleman said he’s confident that Smith’s DNA will not be found on the evidence currently being tested, which is exactly why the district attorney’s office never tested the evidence during the original investigation. “If they had found Kalvin’s DNA on Marker’s clothes, it would’ve proven that he was there, but he wasn’t so that’s why they didn’t test it,” Coleman said. “Tom Keith didn’t care if Kalvin Smith was innocent or guilty. He only wanted to protect his office. I criticized him for that and he said that’s why he stopped cooperating with me.” The state Attorney General’s office has filed a motion to dismiss Smith’s appeal currently pending in federal court. Coleman and the Duke Innocence Project will soon file their response. If the DNA testing of the evidence reveals Lamoureux’s DNA, the case should be reopened, Coleman said. The Silk Plant Forest Citizens Committee report reveals that two eyewitnesses placed Lamoureux at the Silk Plant Forest shop the night of the attack. “Lamoureux was there, we know that,” Coleman said. “If they reopen the case, Kalvin should be released because he will be exonerated.”