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Judge denies Smith a new trial

by Keith Barber

CONVICTED MAN’S LAWYER ARGUES THAT FORSYTH DA USED FALSE EVIDENCE IN TRIAL

Forsyth Superior Court Judge Richard L. Doughton denied a plea by Kalvin Michael Smith for a new trial in the Silk Plant Forest store assault case at the conclusion of a hearing at the Forsyth County Hall of Justice on Jan. 8. Doughton announced his decision just moments after hearing closing arguments from Smith’s lawyer, David Pishko, and from Danielle Marquis Elder of the NC State Attorney General’s Office. “It is my conclusion that the defendant has failed to prove his claims,” Doughton said. Smith was found guilty of brutally assaulting Jill Marker, a pregnant store clerk, at the Silk Plant Forest by a Forsyth County jury in December 1997. During the four-day hearing, Pishko made his case for Smith’s claims that false evidence tainted his conviction, that the Forsyth County District Attorney’s Office did not disclose exculpatory evidence to Smith’s lawyer, and that the defense of Smith was “ineffective.” Pishko put a number of witnesses on the stand to support his claims that the Forsyth County District Attorney’s office knowingly used false evidence to convict Smith. On Jan. 5, Eugene Littlejohn and Pamela Moore, who both testified for the state during the criminal trial, recanted their statements. Under questioning from Pishko, Littlejohn said he and Kalvin Michael Smith never went to the Silk Plant Forest in December 1995, directly contradicting his court testimony. Littlejohn went on to say former Winston-Salem police Detective Donald R. Williams, the lead investigator in the case, coerced him into a false confession by threatening him with extensive jail time. During Elder’s cross-examination, Littlejohn stuck to his claim that he was forced to make a false statement to police, which implicated Smith in the Marker assault. “I was forced and pressured from the start,” Littlejohn said. “Detective Williams came to my house every day. I told him what he wanted to hear so he would leave me alone.” Littlejohn also claimed that Forsyth County Assistant District Attorney Eric Saunders offered him $500 to falsely testify against Smith. Pishko then called Pamela Moore to the stand. Moore recanted her trial testimony that she had heard Smith say he had to “beat a bitch down” to get out of a store. Moore said she was coerced into giving a false statement. “I was young,” Moore said. “I was scared. They were going to drop some charges I had if I testified.” Attorneys for the Attorney General’s Office later confirmed two misdemeanor charges against Moore were dropped in 1998. Pishko put Smith’s trial attorney, William Speaks, on the stand to make his case that he was “ineffective.” Pishko asked Speaks a number of questions regarding a surveillance videotape taken from the Toys R Us store located in the same shopping center as Silk Plant Forest on the night of the Marker assault.

Speaks acknowledged that he knew of the existence of the surveillance tape but decided not to view it based on the police’s determination the tape had no evidentiary value. A significant portion of the defense’s case centered on a videotaped interview of Jill Marker conducted by Williams on Oct. 31, 1996. On Monday, Speaks said he viewed the interview with Marker but didn’t recall seeing her looking at a photo lineup. Speaks also acknowledged he failed to request a copy of the lineup photos from the district attorney’s office. Speaks said he didn’t realize Marker had failed to identify Kalvin Michael Smith during the interview. Pishko asked Speaks why he didn’t play the videotape of Marker’s interview at the 1997 trial. Speaks said he was fearful the state would introduce Smith’s statement if he played the videotape. Pishko also put Raleigh attorney Joe Cheshire on the stand. Cheshire is the chairman of the Indigent Defense Services Commission. The lawyer was asked to give his assessment of Speaks’ performance during the trial. “I feel like Mr. Speaks fell below the standard of reasonableness that any attorney representing a criminal defendant should meet,” Cheshire said. Cheshire characterized Speaks’ failure to realize Marker had been unable to identify Smith in the 1996 interview with investigators as “inexcusable.” “It’s even more inexcusable that a lawyer wouldn’t request the photos Marker looked at,” Cheshire said. Speaks said he didn’t recall if he filed a discovery request with the District Attorney’s office for the photo lineups shown to Marker. During the hearing, Assistant District Attorney Mary Jean Behan acknowledged that the photo lineups were not turned over to Speaks. On the second day of testimony, the videotape of Marker’s 1996 interview was played in its entirety in the courtroom. Afterwards, Pishko questioned Williams about his interview with Marker. Williams confirmed that Kalvin Michael Smith’s photo was in one of the lineups shown to Marker and she failed to identify him. Williams also acknowledged the photo of another person of interest, Kenneth Lamoureux, was in the third position of the second lineup of photos shown to Marker. Pishko asked Williams about the second lineup and Marker

indicating the number three when looking at the photos. “You didn’t interpret that as indicating the third person in the lineup?” Pishko asked. “No, I did not,” Williams responded. Williamsadmitted he did not document showing the photo lineup to Marker in hiswritten report of the 1996 interview. Williams also acknowledged thathe did not document Marker’s responses to his questions about the photolineup. “That’s a mistake on my part,” he said. “I’m human. Ithought it would be redundant because you’ve got the video right therein front of you.” Williams also said he couldn’t recall if he toldBehan or Saunders that he showed Marker the photo lineups. Pishkopresented Williams with a document revealing he checked the Markerinterview videotape out of the evidence room during Smith’s 1997 trial.Williams explained that he did so to make four copies of the tape, andsent one to the District Attorney’s office while keeping one himself. Undercross-examination by Elder, Williams denied ever coercing orthreatening Littlejohn and Moore to falsely testify in court. DuringPishko’s redirect examination, he asked Williams about his second tripto Ohio to interview Marker in 1997. Pishko asked why Williams didn’t take a video camera to record the second interview. “Iwasn’t planning to ask her a lot of questions,” Williams responded. InWilliams’ written report of the 1997 interview, he stated that Markeridentified Kalvin Michael Smith from a lineup of photos. Duringthe hearing, Smith took the stand and told his story for the first timein open court. Smith testified that he voluntarily went to theWinston-Salem

PoliceDepartment in January 1997 with his girlfriend, Valerie Williams, andwas questioned by Williams. Smith said he concocted a false story andsigned a written statement saying he was at the scene of the crimebecause Williams told him he would be allowed to go home if he did so.During his closing argument, Pishko cited case law indicating evidencein such a hearing does not have to reach the threshold of overturningthe verdict, and the state’s suppression of exculpatory evidenceundermines confidence in the trial. Elder argued, in turn, that noevidence had been presented by the defense that would undermineconfidence in the trial. After Doughton announced hisdecision, Smith wiped away tears before being escorted back to hisholding cell by sheriff’s deputies. Outside the courtroom, Darryl Hunt,who was wrongfully convicted by a Forsyth County jury of the rape andmurder of Deborah Sykes in 1984, spoke to reporters. Hunt characterized Doughton’s decision as “disgraceful,” and called for the NC State Bar Associationto make a formal inquiry into the conduct of Doughton, theWinston-Salem police, and the District Attorney’s Office during thehearing. “The true person that needs to be in prison is not inprison,” Hunt said. “They’re out here on the street probablyvictimizing somebody else while Kalvin sits in prison and his familygoes through the torture of trying to free him.” Theresa Newman, a DukeLaw School faculty adviser to the Innocence Project and a member ofSmith’s defense team, said she was “terribly disappointed” inDoughton’s decision. Newman said Smith’s defense team will now take hiscase to the NC Court of Appeals for review. “We’re confident we will receive a different result in a different courtroom,” Newman said.

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