Judge orders release of Silk Plant Forest detective’s testimony

by Keith Barber

Release could bolster appeal by Kalvin Michael Smith

Forsyth County Superior Court Judge Richard W. Stone has ordered that a portion of the final report of the Silk Plant Forest Citizens Review Committee, which includes testimony given by former Winston-Salem police Detective Donald R. Williams before the Winston- Salem City Council, be made public.

The lawyer for Kalvin Michael Smith, the man convicted of brutally assaulting Jill Marker during an armed robbery of the Silk Plant Forest shop in December 1995, said Williams’ testimony could help bolster Smith’s petition for a writ of habeas corpus in federal court. Jim Coleman, director of the Duke Innocence Project and Smith’s lawyer, said he plans to file a habeas petition by the end of the year. If the petition is heard, Coleman will argue that the state of North Carolina has no legal basis for detaining his client.

Coleman said the writ of habeas corpus plea will make many of the same arguments that David Pishko, one of Smith’s attorneys, made during a plea hearing for a new trial in Forsyth Superior Court last January. Judge Richard L. Doughton denied Smith’s appeal, ruling the defense team failed to prove their claims. Coleman said he believes Williams’ testimony to the city council in June directly contradicts the testimony he gave during the January plea hearing.

“I think [Williams] knows he conducted a bad investigation,” Coleman said. “I think we were spot on about his misconduct in this case. His testimony will reveal that.”

Coleman is not the first person to point out inconsistencies in Williams’ testimony regarding his investigation of the Silk Plant Forest case.

Guy Blynn, chair of the Silk Plant Forest Citizens Review Committee, composed a memo, which is included in the committee’s summary report, regarding his impressions of Williams’ testimony before the city council on June 11. Referring to the former detective’s statements regarding his hand-written changes to a typed supplemental report in November 1996, Blynn characterized Williams’ revisions as “a fictionalization of what really happened.”

Blynn also pointed out a number of inconsistencies in Williams’ testimony, including the former detective’s reasoning for dropping Kenneth Lamoureux as a suspect in the case. Blynn said Williams testified he ruled out Lamoureux after Marker told him she was attacked by a black man. When the committee’s investigators, Lt. Joseph Ferrelli and Sgt. Chuck Byrom, pointed out that Williams’ case notes reveal he didn’t speak to Marker until six months after he dropped Lamoureux as a suspect, Williams refused to alter his story. Blynn wrote that Williams “is prone to invent self-serving stories and unwilling to budge from these stories even when he is made to look foolish.”

Blynn was one of seven committee members who signed a statement that they could find “no credible evidence” to link Smith to the assault on Marker.

Blynn appeared at the Dec. 17 court hearing when Judge Stone handed down his ruling. He said the public has a right to know all the facts that were turned up by the committee’s investigation into the Silk Plant Forest case.

“They ought to have a complete record, not a partial record,” Blynn said.

Thepublic release includes a number of items from the appendices of thecitizen review committee’s final report related to Williams’investigation of the 1995 Silk Plant Forest-Jill Marker assault case.The items to be released by the city attorney’s office include closedsession minutes of the committee related to Williams’ investigation,e-mails by committee members, a transcript of Williams’ June 11testimony and a number of reference documents.

AssistantCity Attorney Al Andrews said the documents, which are included in thevoluminous appendices of the committee report, will likely be publiclyreleased this week. Andrews said Williams’ testimony would have to be“scrubbed” to remove all references to the eight current and formerWinston-Salem police officers that have filed a motion in courtopposing the release of the full report.

Thepetition brought by Michael McGuinness, the lawyer representing currentand former Winston-Salem police officers Michael N. Barker, Richard E.“Ted” Best, Robert G. Cozart, John Grismer, Bryan L. Macy, Michael C.Rowe, Michael L. Sharpe, Michael Poe, Randy Patterson, Randy Weavil,Lonnie Maines and Mary McNaught, will be heard on Jan. 15.

Thecase was originally scheduled for Dec. 14, but Judge Stone decided totreat Williams’ case separately from that of the eight other currentand former officers. Williams did not appear in court and did not havea lawyer represent him when his case was heard on Dec. 15 at theForsyth County Hall of Justice.

Andrewsargued that Williams’ testimony before the city council is “the subjectof intense public interest” with numerous requests for its release bythe media and private citizens.

Uponhearing of Judge Stone’s ruling, Coleman immediately requested a copyof the transcript of Williams’ testimony. In his e-mail reply, Andrewscharacterized the city’s release of the transcript and otherinformation as “imminent rather than immediate.”

“Thecity must be careful to comply with the commandments and spirit of thejudge’s order,” Andrews wrote. “That will involve scrubbing theWilliams transcript and other committee materials to ensure that anymaterial to be excluded is redacted. That is easier to be done withwritten materials than the associated audio or visual material. CityAttorney Angela Carmon made clear that in order to accomplish thissignificant task we would need approximately [one] week, which takes usup to Christmas Eve, but before year’s end.”

Andrewssaid the city must first send Williams a copy of a Dec. 17 order inadvance of the release to prevent claims of no notice. In a postorderbench conference, Judge Stone acknowledged that Williams would have theopportunity to seek a stay of the order after notification, Andrewsstated.

“We will not provide Williams information regarding this option as such knowledge is his responsibility,” said Andrews.

Williamsfiled a letter with the Clerk of Superior Court on Dec. 4, stating thathe opposed the release of any personal information or records of hiscriminal investigations. The former detective could not be reached forcomment.

Thedecision on whether to release the remainder of the report’sappendices, or those related to the eight former Winston-Salem policeofficers, is likely to be decided during the Jan. 15 court hearing,Andrews stated.

Best,one of the current officers represented by McGuinness, was one of thedetectives that conducted an internal administrative review of policeprocedure in the Marker assault case in 2007. City Manager Lee Garritysubsequently threw out the police department’s internal investigationafter it was learned that Best had served as Williams’ supervisor.

Inhis filing, McGuinness argued that the full release of the report wouldviolate the rights of the officers under both the state constitutionand the US Constitution.

Winston-Salempolice Chief Scott Cunningham said he fully supports the city’s actionsto have all the materials collected by the Silk Plant Forest CitizensReview Committee released publicly. Cunningham also noted thateveryone, including officers, are free to exercise their rights and“should not be criticized for that.” Garrity said he also stronglysupports the city’s action to get the full report released.

“The release of this information is essential to maintaining public confidence in the police department,” Garrity said.

Coleman echoed the sentiments of Cunningham and Garrity.

“Thereis no basis to withhold information about their conduct in thisinvestigation,” Coleman said. “When they talk about protectingpersonnel records, it’s the job they were hired to do. It’s not apersonnel matter; it’s a public matter. They are trying to prevent thetruth from coming out. They are trying to prevent the public fromknowing.”

Blynnjoined with Coleman, Cunningham and Garrity in calling upon Judge Stoneto dismiss the officers’ attempt to block the full release of thecommittee’s report.

“Thesepolice officers are attempting to keep information non-public,” Blynnsaid. “Members of the public have come up to me and said, ‘What arethey trying to hide?’ I don’t know what they’re trying to hide. I don’tknow that they’re necessarily trying to hide anything, but it gives theentire department, every officer in that department a bad reputationbecause it looks like they’re not acting in the public interest.”

Inthe midst of legal wrangling over the full release of the report, whatshouldn’t be forgotten is that Smith is currently serving the 13th yearof a 28-year prison sentence, Coleman said.

“Thecommittee decided more than a year ago there was no credible evidencethat Kalvin was at the scene of the crime,” he said. “We’ve been sayingthat for four years. Anyone who looks at the facts in this case knowsit’s true.”

Former Winston-Salempolice Detective Donald R. Williams testified during a plea hearing forKalvin Michael Smith last January. Forsyth County Superior Court JudgeRichard W. Stone has ordered that Williams’ testimony given before theWinston-Salem City Council on June 11 be made public. (file photocourtesy of Winston-Salem Journal)