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by Jordan Green

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Judge turns down new trial for Kalvin Michael Smith

A federal judge has denied a request by Kalvin Michael Smith for a new trial. The decision by US District Court Judge Catherine Eagles’ on Monday denied Smith’s petition for habeas corpus based on the finding that he did not file his motion within a year of discovering the factual evidence that supported his claim. The ruling leaves intact a 2009 state court decision upholding Smith’s 1997 conviction in the brutal beating of Silk Plant Forest store employee Jill Marker. The judge also rejected an actual innocence claim, based in part on the recantations of two witnesses, Eugene Littlejohn and Pamela Moore. Under federal law, a demonstration of actual innocence can be used to make an exception for the timeliness requirement.

Eagles wrote in her ruling that the evidence presented by Smith “at most calls into question the credibility of Mr. Littlejohn and Ms. Moore, neither of whom testified as an eyewitness. Mr. Littlejohn’s credibility was already in question at trial, where he testified inconsistently and admitted to giving inconsistent statements to police before trial. The jury’s verdict was not based only on testimony of Mr. Littlejohn and Ms. Moore; in addition, the jury had before it Ms. Marker’s 1997 out-of-court identification of Mr. Smith, her in-court identification, and Ms. [Andra] Wilson’s testimony that she heard Mr. Smith admit to beating Ms. Marker several times. Nowhere in this petition does Mr. Smith challenge Ms. Smith’s testimony.”

The Silk Plant Forest Truth Committee released a statement late Monday expressing dismay at Eagles’ decision.

“We are disappointed in today’s ruling, which was based on the judge’s interpretation of the law, not based on the facts,” the statement read. “There was no hearing for her to learn the facts or even to hear arguments of the law.

“Since 2006, we have been advocating not for a person, but for transparency with respect to the facts of this case and its original investigation,” the statement continued. “That said, we believe no innocent human being is expendable no matter how inconvenient the facts.”

In a related order, Eagles denied a motion by the committee seeking judicial notice of a report by retired Assistant FBI Director Chris Swecker, who reviewed the case. Swecker’s report, released last year, concluded that “due to the flawed nature of the original investigation only a new trial that considers the full record and evidence not available, misrepresented or omitted in the original trial will provide the full measure of justice the community of Winston-Salem and every accused defendant deserves.”

The Winston-Salem City Council, in a majority vote in closed session, declined to intervene in the case and led its institutional weight to the Swecker Report or to submit a copy of a report by a city-commissioned committee finding that there was “no credible evidence” that Smith was at the scene of the crime. Swecker noted in his report that he agreed with the committee’s finding of no confidence in the investigation by the Winston-Salem Police Department that led to Smith’s conviction. Eagles indicated that she was unimpressed by Swecker’s review.

“The report reflects one man’s opinion doubting the adequacy of the police inves-tigation and the reliability of several pieces of evidence presented by the state,” Eagles wrote. “It does not present any new evidence that would tend to establish Mr. Smith’s innocence. The report explicitly states that it “does not presume to exonerate Mr. Smith. Though the report recommends a new trial, it does not even go as far as to suggest that Mr. Smith would not be convicted in view of the full record. For these reasons, the report does not make it more likely than not that ‘no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”

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