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Politics and justice in the Kalvin Michael Smith case

by Jordan Green

With North Carolina Democrats exiled from both houses of the state legislature and its recently elected state chairman facing allegations of misusing party funds and stacking the executive committee with cronies to insulate himself from accountability, they might be looking for a figure unscathed by recent partisan battles.

Consider Attorney General Roy Cooper, who has served in the office since 2001. Coo per earned the distinction of North Carolina’s most popular Democrat by virtue of winning the most votes of any candidate in 2008, the year Barack Obama squeaked past John McCain in the statewide balloting. When the sitting AG ran for his fourth term last year, the Republicans didn’t even bother to put up a challenger.

But the sad and frustrating saga of Kalvin Michael Smith provides an object lesson in how partisan loyalties prove a poor proxy for the ends of justice. And the Smith case perhaps demonstrates how entrenched incumbents who become too secure in their offices can take on the aura of absolute power and lose accountability to the very people who elected them.

Cooper’s 2008 electoral triumph came in the wake of national praise for his handling of the Duke lacrosse case. In 2007, after taking over the prosecution of the three players from Durham District Attorney Mike Nifong, Cooper dropped charges and declared the defendants victims of a “tragic rush to accuse,” adding that evidence in the state’s investigation led to the conclusion that no attack had occurred.

The lay person might be forgiven for assuming that in this spirit, the state’s highest ranking law enforcement officer would take a hard look at the deeply problematic prosecution of Kalvin Michael Smith, who was convicted in the severe beating of Silk Plant Forest store employee Jill Marker in 1995, and determine that the defendant should receive a new trial after sitting in state prison for the past 15 years.

The Silk Plant Forest Citizens Review Committee, which was empanelled by the Winston- Salem City Council to review the case, “found no credible evidence that Kalvin Michael Smith was at the Silk Plant Forest store on Dec. 9, 1995,” the date of the beating.

Former FBI Assistant Director Chris Swecker, after completing his own review of the case, said he fully agreed with the findings of the Silk Plant Forest Citizens Committee. Swecker then went one better by saying that the original investigation conducted by the Winston-Salem Police Department “was seriously flawed and woefully incomplete, thus calling into question whether the original jury rendered their verdict based on all the relevant and accurate facts of the case.”

Swecker concluded “that due to the flawed nature of the original investigation, only a new trial… will provide the full measure of justice the community of Winston-Salem and every accused defendant deserves.”

Notwithstanding his prosecutorial stand behind the greater principle of seeking justice rather than merely pursuing convictions in the Duke lacrosse case, Cooper has taken a different tack in the matter of Kalvin Michael Smith.

Since March 2010, the attorney general has steadfastly opposed Smith’s motion for habeas corpus to obtain a new trial. Then, as recently as last November, Cooper filed a motion seeking to block the federal courts from reviewing Swecker’s report in consideration of Smith’s efforts to obtain a new trial.

It’s not as though Cooper is unaware of Swecker’s expertise and background.

In the wake of the exoneration of Greg Taylor, who was falsely imprisoned on a murder conviction for 17 years, Cooper enlisted Swecker and another FBI veteran to review the State Bureau of Investigations lab procedures. The outside review revealed that the agency withheld or distorted evidence from defendants in more than 200 cases — a practice that Cooper said “should have been unacceptable then and is not acceptable now.”

Last week, a group of Winston-Salem citizens traveled to Raleigh to implore Cooper to review Swecker’s report, meet with the author and ultimately join Smith in his effort to obtain a new trial rather than continuing to oppose it. For the most part, the office has given the citizens a cold shoulder and Cooper has declined to publicly discuss the case. But spokeswoman Noelle Talley disclosed for the first time that lawyers in the attorney general’s office have read the Swecker report.

Talley rejected comparisons between the Duke lacrosse and Kalvin Michael Smith cases, noting that the lacrosse case was an original prosecution taken over by the Attorney General’s office while the Smith case is on appeal.

Stating the obvious, Talley added, “The Attorney General’s office has a duty to represent the state in all criminal appeals before the court.”

Of course. Nut that duty also includes the overriding obligation to seek justice when the evidence, or lack of it, does not support a conviction.

Everyone would like to think justice is blind, but the truth is that it’s also in large part political. The people of Winston-Salem, an overwhelmingly Democratic constituency, have helped Roy Cooper win reelection time and again. He should hear from them now.

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