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The case of Kalvin Michael Smith

by Keith Barber

Courtroom 501A of the Forsyth County Justice Center fell eerily silent on the morning of Jan. 8. Danielle Marquis Elder of the NC State Attorney General’s Office and David Pishko, the attorney representing Kalvin Michael Smith, had just completed their closing arguments during a plea hearing for Smith to receive a new trial. Superior Court Judge Richard L. Doughton weighed his decision for approximately 30 seconds before he declared Smith’s defense team had failed to prove their claims, which included charges of wrongdoing by both the Winston-Salem Police Department and the Forsyth County District Attorney’s Office. For four straight days, Pishko had built a case that unethical behavior by police investigators and prosecutors led to a wrongful conviction of Smith for the brutal assault of Jill Marker and the armed robbery of the Silk Plant Forest store off Silas Creek Parkway in December 1995. Doughton also denied Pishko’s claim that Smith’s trial attorney, Williams Speaks, was “ineffective.” As Doughton rendered his decision, Smith’s father, Gus Dark, sat patiently by the phone in the bedroom of his spacious, well-appointed home in east Winston-Salem. After a friend informed him of the outcome, Dark said he sat motionless in his bedroom chair, and found it difficult to breathe. “I probably sat there for thirty or forty minutes before I even came to the realization this happened. It was totally shocking,” Dark said. Back inside the courtroom, Smith wiped away tears and shook his head in apparent disbelief. Smith’s mother, Sheila LeGrand, asked sheriff’s deputies if she could speak to her son before he was taken back to his holding cell. Her request was denied. Later that day, Smith was transferred by to Alexander Correctional Institute in Taylorsville where he is currently serving a 23- to 29-year sentence. Dark said he spoke with his son via telephone before his transfer back to prison. “Michael,” as he’s called by his friends and family, told Dark he was going to be all right. Dark said he did not attend the fourth day of the hearing because he “felt very positive about the outcome being there all week long.” For three straight days, Dark had watched Pishko build what appeared to be a compelling case: that police investigators and the DA’s office withheld exculpatory information from the defense that could have altered the jury’s verdict. He heard Speaks admit that he did not see former Winston-Salem detective Donald R. Williams present a photo lineup to Marker in a videotaped interview in 1996. He also heard Speaks say he had no idea that Smith’s photograph was included in those lineups, and that Marker failed to identify him. Instead, she appeared to identify Kenneth Lamoureux, a person of interest during the investigation, when the videotape was played in court on Jan. 6. Dark heard Eugene Littlejohn and Pamela Moore recant their trial testimony, which implicated Smith in the crime. Dark said he vividly remembers Littlejohn’s testimony during the trial. He remembers a hung jury, and the judge issuing an Allen charge to encourage the jury to keep deliberating. Perhaps most significantly, Dark remembers the only piece of evidence the jury asked to see a second time was Littlejohn’s statement. And hours later, they returned with a guilty verdict. In some ways, Doughton’s decision was more painful than the jury’s verdict 11 years ago,

Dark said. Since themorning of Jan. 8, the Smith family has undoubtedly gone through theentire spectrum of emotions. LeGrand shared her anger and disgust atthe hearing’s outcome while speaking to members of the media minutesafter Doughton’s ruling. “There is no justice in the state of Winston- Salem, North Carolina,”LeGrand said. “My son was wrongfully convicted. From the judge, the DA,the officers involved — all of them — they are straight cesspool. Weneed to get them out of office. This is Darryl Hunt all over again.It’s time to take it to another court. I’m fed up!” Kalvin MichaelSmith’s case is symbolic of a corrupt system, and the actions of thepolice and prosecutors do not reflect the will of Forsyth County’scitizens, Dark said. “I can’t understand why people fight so hardagainst the truth,” he said. “They’ll take a situation like this anddestroy everything that people have worked for in this community,everybody across the board — black and white. The hopes and dreams ofliving in a community where there’s some fairness and some justice, andthere’s a group of conspirators that seems like they want to continueto destroy this thing.”

Call for justice

GusDark does not stand alone in his call to change what he believes to bea corrupt criminal justice system. That fact was clearly in evidenceafter Doughton’s ruling. Larry Little, a political science professor atWinston-Salem State University,said Doughton’s ruling was not the end for Kalvin Michael Smith, butmerely the beginning. Little announced that Smith’s defense team wouldtake their case before the NC Court of Appeals. “Hopefully, wewill get justice there, but the people have to continue to bevigilant,” Little said. “It took us nineteen years with Darryl Hunt.Kalvin has been down for over twelve years…. How much longer will wehave to endure this kind of nonsense and this injustice?” In 2003,Darryl Hunt was exonerated of raping and murdering Deborah Sykes afterbeing wrongfully imprisoned for nearly 19 years. On Jan. 8, Hunt alsospoke to reporters and echoed Little’s sentiments. “Sitting inthere and listen to police officer lie, just blatantly lie and a judgeto sit up there and allow them to get away with it is disgraceful,”Hunt said. “I’ve dealt with the law for twentysome years now and it’salways been the same: They will protect their own. But it’s about timefor the state bar to start calling these judges and these prosecutorsto task about their license, because they’re not representing theirclients and they’re not representing the public. They’re doingan injustice to everybody when they’re doing an injustice to one personand they have done an injustice to Kalvin today.” For some inthe Winston-Salem community, Kalvin Michael Smith’s case has become arallying cry for those who protest against the tactics of theWinston-Salem PD and the Forsyth County District Attorney’s Office. OnJan. 9, approximately 35 people gathered in front of the Forsyth CountyHall of Justice during a candlelight vigil in Smith’s honor. Duringthe vigil, the Rev. Carlton AG Eversley, pastor of the DellabrookPresbyterian Church in Winston-Salem, drew parallels between Smith’scase and the Darryl Hunt case.

“Thisis the situation we find ourselves in now — that Kalvin Michael Smithand Mrs. Jill Marker are bound together by tragedy,” Eversley said. “Solet us unite our hearts for both, but particularly now for Mrs. Markerthat she seek justice, that she receive healing and reconciliation forwe know that one cannot come to one without coming to the other.” Duringthe candlelight vigil, Hunt said as long as Smith remains behind bars,the wounds inflicted on the Winston-Salem community by the police andthe DA’s office will never heal. The Smith family will never find peaceand neither will the Marker family. The Darryl Hunt Project iscurrently pursuing a civil suit against Donald R. Williams forviolating Smith’s civil rights. “Jill Marker was victimizedand beaten, but the real perpetrator is out here on the street, and shecan’t have peace,” Hunt said. “We want to make sure she gets justice.That’s what this is about. This is not just about Kalvin. It’s aboutjustice for her, too. The person who committed the crime needs to payfor it, but an innocent person doesn’t have to suffer.”

Unexpected outcome

WhenDoughton’s ruling came down on Jan. 8, Smith’s defense team — attorneyDavid Pishko and Duke law professor Theresa Newman — appeared stunned.Pishko spent four days making what seemed to be a solid case for hisclient to receive a new trial. On Day 1 of the hearing, Pishko put onwitnesses and evidence to prove his claim of ineffective assistance ofcounsel. He called Speaks to the stand and asked him why he did notlook at surveillance video taken at Toys ‘R’ Us on the night of theattack. Pishko said the video could have proven Smith was not at theSilk Plant Forest at the time of the assault. Speaks admittedhe never viewed the video and relied solely on the police report thatstated the surveillance tape had no evidentiary value. During histestimony, Speaks also answered questions about a 1996 videotapedinterview with Jill Marker conducted by Donald R. Williams. Speaks saidhe doesn’t recall seeing Marker looking at photos during the interview.But the video, which was played in court on Day 2 of the hearing,clearly shows Williams presenting a photo lineup to Marker. Speaksconfirmed that he didn’t request a copy of the photos that Williamspresented to Marker during the interview. Speaks also testifed that hedidn’t realize Smith’s photo was in one of those lineups and Marker hadfailed to identify him. Speaks said he didn’t play the video in courtbecause he believed every minute Marker was in the courtroom hurtSmith’s chances of acquittal. Speaks also testified that he didn’t puton any evidence in defense of Smith for fear the state would introduceSmith’s statement he gave to the police when he was arrested in January1997. More importantly to establishing that the police and theprosecution withheld exculpatory evidence, Speaks pointed out thatWilliams’ transcript of the interview stopped before the line-up tookplace. Speaks said that to this day, he has never seen the photosMarker was shown during Williams’ 1996 interview. Then Pishko called Joe Cheshire, a Raleigh attorney and chairman of the Indigent Defense

ExpandedHours During Peak Season Open Monday – Saturday Services Commission, tothe stand. Cheshire said he believed Speaks fell below the standard ofreasonableness for a criminal defense attorney. Cheshire cited the factthat Speaks did not request the lineup photos Marker was shown asevidence of his ineffectiveness.

“Nothaving done that is not just inexcusable, but led to mistakes thatultimately got Smith convicted,” Cheshire said. Armed with theknowledge that Marker could not identify Smith as her attacker in the1996 interview, Speaks could have “destroyed” her in-courtidentification of Smith, Cheshire said. “If you destroy theidentification it goes a long way toward the jury questioning Marker’sability to identify her attacker,” Cheshire said. Cheshire also saidSpeaks could’ve destroyed Littlejohn’s testimony by putting on the Toys‘R’ Us surveillance videotape. “Not to destroy that person’stestimony and not request the videotape that police told you has noevidentiary value falls below the standard of care,” he said. Pishkothen called Eugene Littlejohn to the stand. Littlejohn recanted histrial testimony that he and Smith went to the Silk Plant Forest inDecember 1995, and he saw Smith put his hands on Marker. Littlejohnsaid Williams threatened him with going to prison for 42 years unlesshe falsely testified against Smith. “I was scared. I’m beinghonest. I was scared of being locked up for something I didn’t knownothing about,” Littlejohn said. Littlejohn also claimed that ForsythCounty Assistant District Attorney Eric Saunders offered him $500 tofalsely testify against Smith. Pishko then called Jennifer Bryant, asenior crime scene technician for the Winston- Salem Police Department,to the stand. Bryant said she recreated the lineups that Williams hadrequested before he conducted his 1996 interview of Marker. Bryantconfirmed those lineups included Kalvin Michael Smith and KennethLamoureux. Pamela Moore was Pishko’s next witness. Moorerecanted her trial testimony that she heard Smith say he had to “beat abitch down” to get out of a store. Moore said she was coerced intomaking a false statement by police investigators. Moore also saidForsyth County Assistant District Attorney Eric Saunders promised herthe charges would be dropped if she falsely testified against Smith incourt. The second day of Smith’s hearing began with theplaying of the Oct. 31, 1996 videotaped interview of Jill Marker andDonald R. Williams taking the stand. Pishko pointed out a part of thevideo where Williams presents Marker with a second photo lineup and sheappears to indicate the number three. “You didn’t interpret that as indicating the third person in the lineup?” Pishko asked. “No, I did not,” Williams responded. Duringquestioning by Pishko, Williams acknowledged he did not documentshowing the photo lineups to Marker in his written report nor did hedocument Marker’s responses to the lineup. He only documented thequestions and responses leading up to the photo lineups. “That’sa mistake on my part. I’m human. I thought it would be redundantbecause you’ve got the video right there in front of you,” Williamssaid. “There was nowhere you identified the lineups in your report?”asked Pishko. “Correct,” said Williams. With respect to theToys ‘R’ Us surveillance video, Williams said he first looked at thetape the day after the assault — before Smith was a person of interest— and the tape had no evidentiary value. But then he appeared toundermine his own statement when he acknowledged that heviewed the tape a second time after Smith became a suspect. Williamsconfirmed he returned the videotape to Toys ‘R’ Us and did not give itto the district attorney’s office to share with Smith’s defense team.Pishko then asked Williams about his second trip to Ohio to interview Marker in 1997. During Williams’ second interview, Marker allegedly identified Smith as her attacker.

WhenPishko asked Williams why he didn’t take a video camera the second timehe visited Marker, he said he wasn’t planning to ask her a lot ofquestions. On the second day of the hearing, Kalvin MichaelSmith got a chance to tell his story in open court for the first time.Smith said he first learned he was a suspect in the Marker case was onJuly 22, 1996. Smith was arrested by US Marshals on a probationviolation and was questioned by Williams about the Silk Plant Forestassault. Williams asked Smith to take a polygraph. Smith said formerdetective Lonnie Maines administered the test. He denied involvementand was told he was being truthful and then went to jail for fourmonths on a probation violation. Smith said he met a woman,Beverly Watson, while incarcerated at the Forsyth County Jail. Theybegan a relationship after his release, and some time later, there wasan altercation between Watson and Smith’s girlfriend, Valerie Williams. On Jan. 24, 1997, Smith said he and Valerie Williamsvoluntarily went to the police station after Detective Williams askedhim to do so. Smith said the detective informed him that Valerie signeda statement that said he was at the Silk Plant Forest on the night inquestion. Smith denied the accusation, but Williams threatened to haveValerie locked up for lying to police. Smith said Williams told him ifhe wrote a statement, he would be allowed to go home. “He’s telling meexactly what to write,” Smith said. “Then he asks, ‘Who was with you?’”Smith said he made up a name, James Burroughs, and Williams keptbadgering him to write more false information. Smith claimedthat, at one point, Williams assaulted him. Smith said after hefinished giving a false statement, he was arrested for the assault onJill Marker. On the third day, Elder put retired detectiveRandy Weavil on the stand. Weavil said he was present during Williams’interrogation of Smith. On cross-examination, Pishko asked why Smith’sinterview wasn’t recorded, and Weavil responded that Winston-Salempolice procedure is to start the tape recorder at the end of theinterview. He said he didn’t turn on the tape recorder with Smithbecause he asked for a lawyer. Weavil also acknowledged thathe was present for Williams interview with Eugene Littlejohn. Pishkoasked why the entire interview with Littlejohn wasn’t recorded. “Youdidn’t want a record of what was going on in that room, did you?”Pishko asked. “No, I mean yeah,” said Weavil. Elder then called formerdetective and polygraph expert Lonnie Maines to the stand. Mainesadmitted that Littlejohn took two polygraph tests during theinvestigation where he stated that neither he nor Kalvin Michael Smithhad any involvement in the assault. In both cases, Maines saidhe determined that Littlejohn was being truthful. On day four of thehearing, Pishko and Elder delivered their closing arguments. Pishkosaid he believed the defense had clearly proven the state withheldexculpatory evidence — specifically the names of the suspects in thephoto lineup shown to Marker in 1996. “Why are we in this position? Whywould Detective Williams, after showing Ms. Marker the photos, whywouldn’t he document it?” Pishko asked. “We had to put on atechnician to assess through blow-ups who the people in the lineupwere.” Pishko pointed out that Assistant District Attorney Mary JeanBehan agreed that evidence should’ve been turned over to the defense.He then pointed to Speaks’ testimony that the videotape stopped whereWilliams transcript stopped; he pointed out that Behan said she had norecollection of watching the video with Speaks. “If Speaks sawthe entire video, if Behan saw the entire photo lineup sequence, whywould she not disclose the photos to the defense? That’s a Bradyviolation in any event,” Pishko said. “You could conclude Mr. Speakswasn’t shown the entire video.” Pishko referred to Speaks’strategy of not allowing the video into the court record and hisdecision not to even look at the Toys ‘R’ Us surveillance video asevidence of his ineffectiveness. “Speaks obligation was tolook at the Toys ‘R’ Us video, not to go on the police’s word,” Pishkosaid. Pishko added that police never found any physical evidencelinking Smith to the crime, and at the center of their case wasidentification by a disabled witness. All of the facts presentedrevealed serious errors by the police, the DA’s office and Smith’sattorney, said Pishko. “We’ve got a criminal justice systemwe’re proud of because we have rules based on constitutional dueprocess, and effective use of counsel,” he said. “We’re the guardiansof this criminal justice system but it’s only worthy of our confidencewhen we follow the rules.” In her closing argument, Elder saidthe only way the court could grant Smith’s motion for appropriaterelief would be to believe that every person who took the stand exceptfor Smith was lying. Elder contended that if you took away statementsby Littlejohn, Moore, and Wilson, you would still have enough toconvict Smith. “There’s nothing that’s been brought to youtoday that undermines confidence in the outcome of the trial,” Eldersaid. Shortly thereafter, Doughton delivered his ruling. Now, Smith’sattorneys will have to wait on Doughton to issue his official writtenorder before they submit their client’s case to the NC Court of Appealsfor review.

Committee’s investigation continues

Regardlessof the outcome of Smith’s hearing for a new trial, the Silk PlantForest Citizen Review Committee will continue its independentinvestigation into the procedures used by the Winston-Salem police inthe case, committee chairman Guy Blynn said. “We’ll have a report tosubmit to the [Winston-Salem] City Council by mid-March,” Blynn said. “We still have interviews to conduct.” Formedin March 2008, the ninemember committee was charged by the city councilto look into how the police department conducted its investigation ofthe Silk Plant Forest assault case. Kalvin Michael Smith, KennethLamoureux and Donald R. Williams are at the top of the list ofindividuals the committee would like to interview. Blynn saidhe expects the committee will have to work closely with Pishko andprison officials to set up the interview with Smith. Winston-Salempolice identified Lamoureux as a person of interest early in itsinvestigation. Williams refused to speak with Lt. Joe

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Ferrelliand Sgt. Chuck Byrum of the Winston-Salem Police Department, who havebeen assisting the committee since last spring. In December, Williamsignored a subpoena from the city council, prompting the city to pursuea court order to compel Williams to testify before the council. Twodays after Judge Doughton’s decision to deny Smith a new trial, GusDark walked over to the refrigerator in his kitchen and pointed out thedozens of photos of family members attached to the refrigerator door.Dark said 90 percent of the people in those photos have never laid eyeson his son — their father, their uncle, their nephew, their brother. “It’slike a wall there to remind me,” Dark said. He returned to his livingroom where a single candle burned on the coffee table. “Everytime I light a candle, I send my spirit to him and he sends his spiritto me,” he said. Then Dark spoke with passion and great solemnity, likea loving father who carries a great emotional weight in his heart. “Eventually the truth is going to come to light,” he said. “They think it’s going away. It’s not going away.”

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