NC: Dubious conviction of Kalvin Smith

Crucial evidence suppressed by police

For 12 years, Kalvin Smith has maintained that he didn't beat Jill Marker, a pregnant store clerk, inside the Silk Plant Forest in 1995. On Monday, he has his best chance since his conviction to persuade a judge that he might be telling the truth -- that some combination of false testimony, withheld evidence or incompetence by his trial attorney merits a new trial.

Smith's case is the most prominent allegation of wrongful conviction in Winston-Salem since Darryl Hunt, who was freed in 2003 after serving nearly 19 years in prison for the rape and murder of Deborah Sykes. Hunt was exonerated after a DNA test linked another man to Sykes' murder.

The Innocence Project at Duke University has been working on Smith's claims of innocence since 2003. In addition, a five-part series published by the Winston-Salem Journal in 2004 pointed to major problems with the police investigation of the case, as well as a questions about the ability of Marker, who was struck on the head about 20 times, to identify or even recall the attack.

Smith's hearing this week before Judge Richard Doughton is expected to last several days and include testimony from Eugene Littlejohn and Pamela Moore, two of the three witnesses who during Smith's trial in 1997 testified that he had talked about the crime. Smith's attorney, David Pishko, also has subpoenaed Don Williams, the lead detective in the case. Williams recently ignored a separate subpoena from Winston-Salem's City Council to talk about the case. Though the city council has to ask a judge to enforce its subpoena, the one that Pishko issued for a court hearing could carry immediate consequences if it is ignored.

Both Littlejohn and Moore now say they lied during the trial and were coerced by threats from police and prosecutors, according to Smith's motion for a new trial. Littlejohn testified at trial that he was outside the store and saw Smith go in and grab Marker by the counter. Jurors asked to see his testimony after about two days of deliberation, and convicted Smith soon after reading it.

The evidence for Smith's conviction included Jill Marker's apparent identification of Smith at trial, Littlejohn's testimony that he saw Smith approach Marker and grab her, and two witnesses -- Moore and Andra Wilson -- who said that Smith talked about the beating.

At a hearing in September, Doughton allowed five of 11 claims made by Smith in his motion for appropriate relief to go forward. The N.C. Attorney General's Office has argued that Smith's claims are either barred because he raised them in a 1999 motion for a new trial, or they don't meet the standards for a new trial. Most claims have to do with evidence that could be used to discredit or impeach witnesses but do not point to Smith's innocence, Danielle Marquis Elder, the special deputy attorney general handling the case, argued in the hearing in September. Elder argued that Littlejohn and Moore's current assertion that Smith wasn't involved is not new evidence. They gave early statements to police saying the same thing, and jurors heard about those statements when they testified, Elder had said. "There is no reasonable probability of a different result to this case," Elder said. These are the five claims that the attorneys will argue:

* That prosecutors relied on false testimony to convict Smith. Smith alleges that Moore and Littlejohn have recanted. Littlejohn is the only witness other than Marker to put him at the crime scene. Inconsistencies in the statements of Moore and Littlejohn show that the recantations are the truth, Smith's attorneys have argued.

* That prosecutors withheld the second part of a videotaped interview with Marker in October 1996 before Smith had been arrested. In that second part of the interview, Marker was shown three photo lineups. In one, she did not identify Smith, in another she picked out another suspect, and in the third she indicated that a man who was not a suspect had been her attacker.

* That prosecutors withheld evidence that a witness who said that Smith confessed had actually said that Smith admitted to pushing a woman at a liquor store, not at the Silk Plant Forest.

* Two claims that Smith's trial attorney, William Speaks, was ineffective.

Both claims involving Speaks have to do with whether he requested information from prosecutors that would have helped Smith's defense. The first claim is that if Speaks saw the 1996 videotaped interview, he should have requested the photos that were shown to Marker. He would then have learned that Smith was in a lineup and that Marker did not identify him as her attacker. That could be used to challenge Marker's identification of Smith at trial.

In 2005, Speaks learned that there were two parts to the videotaped interview and that the second part included lineups. He told Duke's Innocence Project that he was never shown that part of the tape, and repeated the claim in an affidavit filed with Smith's motion for a new trial. Speaks has since changed his mind and said in a separate affidavit that he's not sure that he didn't see the videotape. He is expected to testify this week.

Smith is being brought to the hearing from Albemarle Correctional Institution in Stanly County, where he is serving a sentence of 23 to 29 years. Marker lives under 24-hour care with her parents in Ohio.

Original report here



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