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 the
morning of Jan. 8, the Smith family has undoubtedly gone through the
entire spectrum of emotions. LeGrand shared her anger and disgust at
the hearing’s outcome while speaking to members of the media minutes
after 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. We
need 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 Michael
Smith’s case is symbolic of a corrupt system, and the actions of the
police and prosecutors do not reflect the will of Forsyth County’s
citizens, Dark said. “I can’t understand why people fight so hard
against the truth,” he said. “They’ll take a situation like this and
destroy everything that people have worked for in this community,
everybody across the board — black and white. The hopes and dreams of
living in a community where there’s some fairness and some justice, and
there’s a group of conspirators that seems like they want to continue
to destroy this thing.”
Call for justice
Gus
Dark does not stand alone in his call to change what he believes to be
a corrupt criminal justice system. That fact was clearly in evidence
after Doughton’s ruling. Larry Little, a political science professor at
Winston-Salem State University,
said Doughton’s ruling was not the end for Kalvin Michael Smith, but
merely the beginning. Little announced that Smith’s defense team would
take their case before the NC Court of Appeals.
“Hopefully, we
will get justice there, but the people have to continue to be
vigilant,” Little said. “It took us nineteen years with Darryl Hunt.
Kalvin has been down for over twelve years…. How much longer will we
have to endure this kind of nonsense and this injustice?” In 2003,
Darryl Hunt was exonerated of raping and murdering Deborah Sykes after
being wrongfully imprisoned for nearly 19 years. On Jan. 8, Hunt also
spoke to reporters and echoed Little’s sentiments.
“Sitting in
there and listen to police officer lie, just blatantly lie and a judge
to 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’s
always been the same: They will protect their own. But it’s about time
for the state bar to start calling these judges and these prosecutors
to task about their license, because they’re not representing their
clients and they’re not representing the public.
They’re doing
an injustice to everybody when they’re doing an injustice to one person
and they have done an injustice to Kalvin today.”
For some in
the Winston-Salem community, Kalvin Michael Smith’s case has become a
rallying cry for those who protest against the tactics of the
Winston-Salem PD and the Forsyth County District Attorney’s Office.
On
Jan. 9, approximately 35 people gathered in front of the Forsyth County
Hall of Justice during a candlelight vigil in Smith’s honor.
During
the vigil, the Rev. Carlton AG Eversley, pastor of the Dellabrook
Presbyterian Church in Winston-Salem, drew parallels between Smith’s
case and the Darryl Hunt case.
“This
is the situation we find ourselves in now — that Kalvin Michael Smith
and Mrs. Jill Marker are bound together by tragedy,” Eversley said. “So
let us unite our hearts for both, but particularly now for Mrs. Marker
that she seek justice, that she receive healing and reconciliation for
we know that one cannot come to one without coming to the other.”
During
the candlelight vigil, Hunt said as long as Smith remains behind bars,
the wounds inflicted on the Winston-Salem community by the police and
the DA’s office will never heal. The Smith family will never find peace
and neither will the Marker family. The Darryl Hunt Project is
currently pursuing a civil suit against Donald R. Williams for
violating Smith’s civil rights.
“Jill Marker was victimized
and beaten, but the real perpetrator is out here on the street, and she
can’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 about
justice for her, too. The person who committed the crime needs to pay
for it, but an innocent person doesn’t have to suffer.”
Unexpected outcome
When
Doughton’s ruling came down on Jan. 8, Smith’s defense team — attorney
David Pishko and Duke law professor Theresa Newman — appeared stunned.
Pishko spent four days making what seemed to be a solid case for his
client to receive a new trial. On Day 1 of the hearing, Pishko put on
witnesses and evidence to prove his claim of ineffective assistance of
counsel. He called Speaks to the stand and asked him why he did not
look at surveillance video taken at Toys ‘R’ Us on the night of the
attack. Pishko said the video could have proven Smith was not at the
Silk Plant Forest at the time of the assault.
Speaks admitted
he never viewed the video and relied solely on the police report that
stated the surveillance tape had no evidentiary value. During his
testimony, Speaks also answered questions about a 1996 videotaped
interview with Jill Marker conducted by Donald R. Williams. Speaks said
he 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.
Speaks
confirmed that he didn’t request a copy of the photos that Williams
presented to Marker during the interview. Speaks also testifed that he
didn’t realize Smith’s photo was in one of those lineups and Marker had
failed to identify him. Speaks said he didn’t play the video in court
because he believed every minute Marker was in the courtroom hurt
Smith’s chances of acquittal. Speaks also testified that he didn’t put
on any evidence in defense of Smith for fear the state would introduce
Smith’s statement he gave to the police when he was arrested in January
1997. More importantly to establishing that the police and the
prosecution withheld exculpatory evidence, Speaks pointed out that
Williams’ transcript of the interview stopped before the line-up took
place. Speaks said that to this day, he has never seen the photos
Marker was shown during Williams’ 1996 interview.
Then Pishko called Joe Cheshire, a Raleigh attorney and chairman of the Indigent Defense
Expanded Hours During Peak Season Open Monday - Saturday Services Commission, to the stand. Cheshire said he believed Speaks fell below the standard of reasonableness for a criminal defense attorney. Cheshire cited the fact that Speaks did not request the lineup photos Marker was shown as evidence of his ineffectiveness.
“Not having done that is not just inexcusable, but led to mistakes that ultimately got Smith convicted,” Cheshire said. Armed with the knowledge that Marker could not identify Smith as her attacker in the 1996 interview, Speaks could have “destroyed” her in-court identification of Smith, Cheshire said. “If you destroy the identification it goes a long way toward the jury questioning Marker’s ability to identify her attacker,” Cheshire said. Cheshire also said Speaks could’ve destroyed Littlejohn’s testimony by putting on the Toys ‘R’ Us surveillance videotape.“Not to destroy that person’s testimony and not request the videotape that police told you has no evidentiary value falls below the standard of care,” he said. Pishko then called Eugene Littlejohn to the stand. Littlejohn recanted his trial testimony that he and Smith went to the Silk Plant Forest in December 1995, and he saw Smith put his hands on Marker. Littlejohn said Williams threatened him with going to prison for 42 years unless he falsely testified against Smith.
“I was scared. I’m being honest. I was scared of being locked up for something I didn’t know nothing about,” Littlejohn said. Littlejohn also claimed that Forsyth County Assistant District Attorney Eric Saunders offered him $500 to falsely testify against Smith. Pishko then called Jennifer Bryant, a senior crime scene technician for the Winston- Salem Police Department, to the stand. Bryant said she recreated the lineups that Williams had requested before he conducted his 1996 interview of Marker. Bryant confirmed those lineups included Kalvin Michael Smith and Kenneth Lamoureux.
Pamela Moore was Pishko’s next witness. Moore recanted her trial testimony that she heard Smith say he had to “beat a bitch down” to get out of a store. Moore said she was coerced into making a false statement by police investigators. Moore also said Forsyth County Assistant District Attorney Eric Saunders promised her the charges would be dropped if she falsely testified against Smith in court.
The second day of Smith’s hearing began with the playing of the Oct. 31, 1996 videotaped interview of Jill Marker and Donald R. Williams taking the stand. Pishko pointed out a part of the video where Williams presents Marker with a second photo lineup and she appears 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.
During questioning by Pishko, Williams acknowledged he did not document showing the photo lineups to Marker in his written report nor did he document Marker’s responses to the lineup. He only documented the questions and responses leading up to the photo lineups.
“That’s a mistake on my part. I’m human. I thought it would be redundant because you’ve got the video right there in front of you,” Williams said. “There was nowhere you identified the lineups in your report?” asked Pishko.
“Correct,” said Williams. With respect to the Toys ‘R’ Us surveillance video, Williams said he first looked at the tape the day after the assault — before Smith was a person of interest — and the tape had no evidentiary value. But then he appeared to undermine his own statement when he acknowledged that he viewed the tape a second time after Smith became a suspect. Williams confirmed he returned the videotape to Toys ‘R’ Us and did not give it to 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.
When
Pishko asked Williams why he didn’t take a video camera the second time
he visited Marker, he said he wasn’t planning to ask her a lot of
questions.
On the second day of the hearing, Kalvin Michael
Smith 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 on
July 22, 1996. Smith was arrested by US Marshals on a probation
violation and was questioned by Williams about the Silk Plant Forest
assault. Williams asked Smith to take a polygraph. Smith said former
detective Lonnie Maines administered the test. He denied involvement
and was told he was being truthful and then went to jail for four
months on a probation violation.
Smith said he met a woman,
Beverly Watson, while incarcerated at the Forsyth County Jail. They
began a relationship after his release, and some time later, there was
an altercation between Watson and Smith’s girlfriend, Valerie Williams.
On Jan. 24, 1997, Smith said he and Valerie Williams
voluntarily went to the police station after Detective Williams asked
him to do so. Smith said the detective informed him that Valerie signed
a statement that said he was at the Silk Plant Forest on the night in
question. Smith denied the accusation, but Williams threatened to have
Valerie locked up for lying to police. Smith said Williams told him if
he wrote a statement, he would be allowed to go home. “He’s telling me
exactly what to write,” Smith said. “Then he asks, ‘Who was with you?’”
Smith said he made up a name, James Burroughs, and Williams kept
badgering him to write more false information.
Smith claimed
that, at one point, Williams assaulted him. Smith said after he
finished giving a false statement, he was arrested for the assault on
Jill Marker.
On the third day, Elder put retired detective
Randy Weavil on the stand. Weavil said he was present during Williams’
interrogation of Smith. On cross-examination, Pishko asked why Smith’s
interview wasn’t recorded, and Weavil responded that Winston-Salem
police procedure is to start the tape recorder at the end of the
interview. He said he didn’t turn on the tape recorder with Smith
because he asked for a lawyer.
Weavil also acknowledged that
he was present for Williams interview with Eugene Littlejohn. Pishko
asked why the entire interview with Littlejohn wasn’t recorded.
“You
didn’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 former
detective and polygraph expert Lonnie Maines to the stand. Maines
admitted that Littlejohn took two polygraph tests during the
investigation where he stated that neither he nor Kalvin Michael Smith
had any involvement in the assault.
In both cases, Maines said
he determined that Littlejohn was being truthful. On day four of the
hearing, Pishko and Elder delivered their closing arguments. Pishko
said he believed the defense had clearly proven the state withheld
exculpatory evidence — specifically the names of the suspects in the
photo lineup shown to Marker in 1996. “Why are we in this position? Why
would Detective Williams, after showing Ms. Marker the photos, why
wouldn’t he document it?” Pishko asked.
“We had to put on a
technician to assess through blow-ups who the people in the lineup
were.” Pishko pointed out that Assistant District Attorney Mary Jean
Behan agreed that evidence should’ve been turned over to the defense.
He then pointed to Speaks’ testimony that the videotape stopped where
Williams transcript stopped; he pointed out that Behan said she had no
recollection of watching the video with Speaks.
“If Speaks saw
the entire video, if Behan saw the entire photo lineup sequence, why
would she not disclose the photos to the defense? That’s a Brady
violation in any event,” Pishko said. “You could conclude Mr. Speaks
wasn’t shown the entire video.”
Pishko referred to Speaks’
strategy of not allowing the video into the court record and his
decision not to even look at the Toys ‘R’ Us surveillance video as
evidence of his ineffectiveness.
“Speaks obligation was to
look at the Toys ‘R’ Us video, not to go on the police’s word,” Pishko
said. Pishko added that police never found any physical evidence
linking Smith to the crime, and at the center of their case was
identification by a disabled witness. All of the facts presented
revealed serious errors by the police, the DA’s office and Smith’s
attorney, said Pishko.
“We’ve got a criminal justice system
we’re proud of because we have rules based on constitutional due
process, and effective use of counsel,” he said. “We’re the guardians
of this criminal justice system but it’s only worthy of our confidence
when we follow the rules.”
In her closing argument, Elder said
the only way the court could grant Smith’s motion for appropriate
relief would be to believe that every person who took the stand except
for Smith was lying. Elder contended that if you took away statements
by Littlejohn, Moore, and Wilson, you would still have enough to
convict Smith.
“There’s nothing that’s been brought to you
today that undermines confidence in the outcome of the trial,” Elder
said. Shortly thereafter, Doughton delivered his ruling. Now, Smith’s
attorneys will have to wait on Doughton to issue his official written
order before they submit their client’s case to the NC Court of Appeals
for review.
Committee’s investigation continues
Regardless
of the outcome of Smith’s hearing for a new trial, the Silk Plant
Forest Citizen Review Committee will continue its independent
investigation into the procedures used by the Winston-Salem police in
the case, committee chairman Guy Blynn said. “We’ll have a report to
submit to the [Winston-Salem] City Council by mid-March,” Blynn said. “We still have interviews to conduct.”
Formed
in March 2008, the ninemember committee was charged by the city council
to look into how the police department conducted its investigation of
the Silk Plant Forest assault case. Kalvin Michael Smith, Kenneth
Lamoureux and Donald R. Williams are at the top of the list of
individuals the committee would like to interview.
Blynn said
he expects the committee will have to work closely with Pishko and
prison officials to set up the interview with Smith. Winston-Salem
police identified Lamoureux as a person of interest early in its
investigation.
Williams refused to speak with Lt. Joe
Find us on Facebook
Ferrelli
and Sgt. Chuck Byrum of the Winston-Salem Police Department, who have
been assisting the committee since last spring. In December, Williams
ignored a subpoena from the city council, prompting the city to pursue
a court order to compel Williams to testify before the council.
Two
days after Judge Doughton’s decision to deny Smith a new trial, Gus
Dark walked over to the refrigerator in his kitchen and pointed out the
dozens of photos of family members attached to the refrigerator door.
Dark said 90 percent of the people in those photos have never laid eyes
on his son — their father, their uncle, their nephew, their brother.
“It’s
like a wall there to remind me,” Dark said. He returned to his living
room where a single candle burned on the coffee table.
“Every
time I light a candle, I send my spirit to him and he sends his spirit
to me,” he said. Then Dark spoke with passion and great solemnity, like
a 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.”
