Winston-Salem City Council grapples with assault case

by Amy Kingsley

The crime scene was an enigma.

Winston-Salem police officers received a call from the Silas Creek shopping center on Dec. 9, 1995. Two customers had entered the Silk Plant Forest store 10 minutes before closing, heard moaning and found employee Jill Marker in a large puddle of her own blood – pregnant, beaten and clinging to life. Police combed and catalogued the scene, but never found a weapon or any physical evidence.

They conducted interviews. After their initial leads petered out, investigators fixed on Kalvin Michael Smith, a young black man betrayed by a former girlfriend.

Thirteen months after the attack, Smith confessed. Marker, nearly blind and permanently disabled, testified at his trial. She answered questions with a shake of her head.

Prosecutors won a conviction: assault with a deadly weapon with intent to kill. Smith received the maximum sentence, almost 29 years, and was imprisoned in Raleigh’s Central Prison.

Case closed.

Except that it wasn’t.

This particular case caught the attention of law professor James Coleman at Duke University and the editors at The Winston-Salem Journal. Darryl Hunt, a black man from Winston-Salem wrongly convicted of murder more than a decade before Smith, had met him in prison, heard his claims of innocence and believed him.

Smith’s attorney was concerned that investigators had dismissed the possible involvement of Kenneth Lamoureux, a white man with a history of spousal abuse who matched the description of a person spotted inside the store before the attack. Marker had met Lamoureux at the daycare center where she used to work.

Coleman and others have argued that the evidence against Smith was flimsy and his confession – which he later recanted – coerced. The Innocence Project at Duke University School of Law is working on his case.

Now Smith’s supporters and members of the Winston-Salem City Council are wrestling with how to handle another possible case of wrongful conviction, one that came on the heels of Hunt’s exoneration. At a meeting of the public safety committee on Feb. 11, members of Mothers For Justice, a group supporting a review of Smith’s case, tied red sashes across their chests.

“Because of the hour of this meeting,” said Lyn Warmath-Boyd, “this is a very small representation of our organization.”

More than a dozen women sported the signature sash. Warmath-Boyd lobbied for the formation of a citizens review board to investigate the Winston-Salem Police Department, to find out whether investigators adhered to their own policies and procedures.

The committee weighed these options: Empanel the citizens board that was already in the works, recommend the case to the NC Innocence Inquiry Commission or do both.

The commission was established in 2006 by an act of the NC General Assembly. Its role is to evaluate claims of actual innocence, the kind of claims that can’t be considered by appellate courts confined to the consideration of procedural infractions like prosecutorial misconduct.

The commission’s rulings carry judicial weight. If a three-judge panel rules unanimously that a petitioner is innocent, the charges are dismissed. The commission, in other words, could set Smith free.

But to do so would require Smith’s consent and his surrender of certain procedural safeguards. Petitioners can be forced to testify, and so can their spouses and clergy.

There’s also a waiting list. The commission has rejected 90 cases, and is reviewing another 149. It is investigating three cases and hearing another.

If police – like in Smith’s case – refer a case, then Executive Director Kendra Montgomery-Blinn would shepherd it through the system instead of farming it out to an Innocence Project at one of North Carolina’s colleges.

It’s hard to say how long the average case takes to investigate, Montgomery-Blinn said.

“It really is a case-by-case basis,” she said. “Some cases may be pretty straightforward and only take six months, and other, more complicated cases may take up to two years.”

Mark Rabil, a capital defender for Forsyth County and attorney for Hunt, said Smith’s attorneys would probably try their luck in the regular court system before submitting their case to the Innocence Inquiry Commission. During Hunt’s appeals, his lawyers entered 12 post-conviction motions to obtain documents from the Winston-Salem Police Department. They never received all the documents they requested.

After Hunt’s exoneration, the city empanelled a group of citizens to investigate the police department. The Sykes Administrative Review Committee, named after Deborah Sykes, the victim of the murder for which Hunt was wrongly accused, returned a 107-page document that catalogued the various missteps that led to Hunt’s arrest and incarceration and allowed the real killer, Willard Brown, to remain free.

“If you check around,” he said, “probably every police officer has documents in their basement. That’s why we really need people – like in the Sykes committee – to get to the bottom of it.”

That’s the kind of panel Smith’s supporters would like to see the city organize. Unlike the Innocence Inquiry Commission, a citizens’ panel would not have subpoena power, which might stymie their efforts to interview retired investigators. The city council, which does have subpoena power, would have to function as a proxy to interview former employees, said City Attorney Angela Carmon. The citizens’ panel would have no authority to rule on Smith’s actual innocence, but they could evaluate the actions of individual officers and the police department.

The city council leaned toward the two-pronged approach, recommending the case to the Innocence Inquiry Commission and organizing a citizens’ review board.

“The logical way to go would be to have two tracks going at once,” said Councilor Molly Leight, who represents the South Ward.

Joycelyn Johnson, who represents the East Ward, agreed.

“We have a chance to travel two paths and still work together,” she said. “We could work with the innocence commission and create a committee of some sort at the same time.”

The city vowed to moved forward with its review, despite opposition from Forsyth County District Attorney Tom Keith, who is conducting his own investigation. But the council tabled a motion to appoint seven members to the commission pending further discussion about the scope of its inquiry. They directed police Chief Patricia Norris to recommend the Smith case to the Innocence Inquiry Commission.

Jet Hollander, a member of the Sykes Review Commission, submitted his recommendations for the Silk Plant Forest Committee, which would examine the investigation into the assault on Jill Marker.

“We never asked and are not asking for this to be a judicial committee,” he said.

What the supporters, including Warmath-Boyd, wanted was an independent committee.

“The city council should establish an independent committee to look into the Silk Plant Forest case,” Warmath-Boyd said. “We expect this committee to present reports independent of the city and district attorney’s office.”

Warmath-Boyd had been one of the first board members for the Darryl Hunt Project for Freedom and Justice.

“I’d been involved with Darryl [Hunt] just following his release,” she said. “And I’d always had a passion for the justice aspect.”

Now she represents the group of local women who organized as Mothers for Justice in late January, a week before City manager Lee Garrity held the first public meetings on the search for a new police chief. She’d seen Smith’s mother, Shelia Legrande, arguing her son’s case on local television.

“I have a twenty-one year old son,” Warmath-Boyd said. “And I realized that what had happened to Kalvin Michael Smith would probably never happen to him because my son is not African-American.”

She reached out to Legrande, and Legrande responded. The two mothers contacted Jennifer Cannino, a rape victim who had misidentified her attacker, and Regina Lane, who was raped by Brown six months after he murdered Sykes.

Both responded and joined Mothers For Justice’s core committee. The group debuted at the police chief hearings with the red sashes they’d adopted as signifiers.

“What has really been a blessing in all of this is that I thought we as mothers, collectively, should be able to stand for something, do something,” she said. “And that is what we’re doing.”

Warmath-Boyd’s husband and several other members of the clergy had become fixtures at city hall, lobbying on behalf of Hunt and then Smith.

“They’ve become kind of the usual suspects in discussing things that have to do with equal justice,” she said. “But when the members of the city council has to look a woman or a mother in the eye, it puts a whole different spin on it.”

Call it the common maternal denominator, she said. The victim in the Silk Plant Forest case, Jill Marker, is a mother. Her son was born months after the attack, while she was still unconscious.

Warmath-Boyd hasn’t forgotten that. The group has talked a lot about Deborah Sykes and her mother, Warmath-Boyd said. They want to create a coalition between victims and justice advocates. After all, both groups have a common goal: the prosecution and imprisonment of the actual perpetrators of violent acts.

Members of Mothers For Justice’s core committee recruited several members from their circles of female friends. At each event, they compose and print a statement that they distribute to all their relevant parties.

They are collaborating with Vigils for Healing, a local group that organizes interfaith prayer vigils at murder sites. Mothers for Justice plans to have a visible presence at the upcoming vigil for slain Winston-Salem police Sgt. Howard Plouff, who was killed last year outside the Red Rooster.

All the members of Mothers For Justice have to be comfortable being a physical presence at meetings, she said. Not all the members need to speak publicly, but all need to be willing to don the red sash.

“Our mission is to collectively and in an organized way get the city to listen to us and our concerns,” Warmath-Boyd said.

So far, she said, they’ve achieved that goal.

“Each person can identify with the maternal force in one way or another,” Warmath-Boyd said.

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