Winston-Salem Police Department report: Silk Plant Forest case should remain closed

by Keith Barber

Despite concerns about documentation of investigative activities and the handling of evidence, an internal review committee of the Winston-Salem Police Department has concluded that the 1995 Jill Marker-Silk Plant Forest case should remain closed.

The committee, composed of Police Chief Scott Cunningham, Public Safety Attorney Lori Sykes, Capt. David Clayton, Capt. Alonzo Thompson, and Lt. David Kiger, reviewed the report issued by the Silk Plant Forest Citizens’ Review Committee and responded to the citizen committee’s recommendations in the 68-page report, which it published on the city’s website on Nov. 5.

“The Committee does find that, had better documentation of investigative activities occurred, many of the questions existing today would not be an issue and would have been answered,” the report states.

The citizens’ committee report, issued in July 2009, offered a blunt assessment of the Winston-Salem Police Department’s investigation of the Silk Plant Forest case.

“After reviewing the Silk Plant Forest investigation at length, the committee has concluded that at critical stages in the investigation the investigators failed to follow procedures which, if followed, would have enhanced the reliability and completeness of the information that was provided to the prosecutors and ultimately to the court,” the citizens’ committee report states. “For this reason the committee does not have confidence in the investigation, the information in question, or the result of the investigation. In some instances the investigators violated expressly stated departmental policy. In other instances they failed to take desirable steps that were authorized by departmental policy but were not clearly required. In still other instances they engaged in conduct that departmental policy simply did not address adequately.”

The internal police department report addresses the vote of no confidence expressed in the citizens committee report.

“The WSPD has made several policy, procedure, training, supervision and equipment changes and enhancements over the years to deal with these concerns and issues,” the internal report states. “The WSPD continues to make enhancements and remains a leader in many of these relevant areas.”

The citizens’ review committee took it one step further as a majority of committee members adopted a resolution that the group could find no credible evidence that Kalvin Michael Smith — the man convicted of brutally assaulting Jill Marker while robbing the Silk Plant Forest shop in December 1995 —was at the Silk Plant Forest shop at the time the crime was committed.

The internal police department report also addresses a key piece of evidence — a surveillance videotape from the Toys-R- Us store — that went missing at some point during former Detective Donald R. Williams’ investigation of the case. The internal review committee concluded that the tape should have been kept as evidence, “even if it had no value at that time.”

The internal police report states that Detective Mike Barker was originally assigned the case. During the preliminary investigation, Barker obtained a videotape from Toys-R-Us from the time period of 4 to 10 p.m. on Dec. 9, 1995 — the night Marker was assaulted.

“The videotape was reviewed by Detectives MN Barker and DR Williams,” the report states. “According to Detective Barker’s report, the videotape was not found to have any evidentiary value. The disposition of the videotape is unknown as it was not recorded in Detective Barker’s report.”

Guy Blynn, the chair of the citizens’ review committee, commented on the Toys-R-Us videotape in his notes on Donald R. Williams’ deposition before members of the Winston-Salem City Council.

“Williams insists that Barker obtained the tape from [Toys-R-Us], they watched it, and then, Barker gave the tape back to the store,” Blynn states. “It wasn’t useful because you couldn’t make out faces and, in any event, it focused on the cash registers….

Then, Williams says thatthe tape went back to thestore and never entered thecase file.”In his deposition,Williams stated that hewas looking for Smith andEugene Littlejohn — awitness for the prosecutionduring Smith’s 1997 trial— on the videotape, Blynnnoted. But Smith did notfirst become a suspect untilsix months after the JillMarker assault. “How could he haveknown to look for thesepeople until the case hadbeen open for months?”Blynn writes in his notes. “And, it makesno sense to me that [Toys-R-Us] wouldhave been able to produce a tape for thenight of the crime several months later. So,it seems to me that the tape must have beenobtained relatively shortly after the crimeoccurred and kept in the file for some time.This would be consistent with Barker’s testimony.Or, it was seized and kept outsidethe file for some time. Or, it was seized and,when it did not prove useful in corroboratingwhat Williams wanted it to corroborate— Littlejohn’s story about he and Kalvinrobbing Silk Plant Forest that night, hepitched the tape.” Despite the findings of the citizens reviewcommittee, the internal police report concludesthat “the WSPD diligently followedup viable investigative leads for the SilkPlant Forest case in a timely manner andfollowed each lead to a logical conclusion.”However, Cunningham announced inMarch that some evidence collected in theSilk Plant Forest investigation was neversent out for testing. The evidence, comprisedof Jill Marker’s clothes and a pieceof cardboard with blood and hair on it, wasnever admitted at Smith’s 1997 trial. Theitems are listed on inventory sheets of physicalevidence seized by police investigatorsin 1995, which were provided to both thedistrict attorney’s office and Smith’s defenselawyer William Speaks. “Apparently, no one ever asked that it betested,” Cunningham said at the time.On July 21, after two rounds of “touch”DNA testing, Marker’s clothes did notreveal any male DNA. “It is unknown if DNAwas present on the clothingat the time of the attackand had deteriorated overthe years,” Cunninghamsaid in a statement. “It isalso unknown if DNA wasever present on the clothing.These results do notprove or disprove the guiltor innocence of any personassociated with this crime.” Cunningham said DNAprofiles found on Marker’sclothing were compared toMarker and Smith’s DNAprofiles, as well as DNAprofiles from a “subject ofinterest.” Separate tests by the State Bureauof Investigation crime lab and LabCorpyielded the same result — no presence ofmale DNA. “Some may still question the convictionand give different weights to different itemsor information,” the 68-page internal reportstates. “This report is not intended to changeminds or viewpoints. It is intended to presenta detailed overview of the investigationand provide a comprehensive reviewand analysis of the facts, evidence, issuesand investigation while responding to therecommendations of the [Silk Plant ForestCitizens’ Review Committee].” In summary, the committee unanimouslyagreed that “there are no further viableavenues of investigation and the Silk PlantForest case should remain closed.” Smith is currently serving a 23- to29-year prison sentence for the assault ofJill Marker during an armed robbery of theSilk Plant Forest shop. Smith has steadfastlymaintained his innocence. In January,Smith’s attorney, Duke law professorJames Coleman, filed a petition for a writof habeas corpus in the US District Courtfor the Middle District of North Carolina.Coleman cited the finding of Silk PlantForest Citizens’ Review Committee thatthere was “no credible evidence that KalvinMichael Smith was at the location of theSilk Plant Forest store in Winston-Salem,North Carolina, on December 9, 1995, at orabout the time that the crime for which hewas charged was committed,” as grounds forSmith to receive another day in court.