The Silk Plant Forest Citizen Review Committee faces an existential dilemma. On Thursday, the ninemember committee charged with looking into Winston-Salem police procedure in the 1995 Silk Plant Forest-Jill Marker assault case is scheduled to vote on a motion put forth by member James Ferree at its last meeting. Ferree’s motion goes to the heart of why the committee was formed in the first place.
During the last meeting, Ferree strongly urged his fellow committee members to include a recommendation in its final report to Winston-Salem City Council that the city should pursue all legal avenues to have Kalvin Michael Smith freed from prison. A Forsyth County jury convicted Smith of brutally assaulting Marker during an armed robbery of the Silk Plant Forest shop in December 1995. He is currently serving a sentence of 23 to 28 years at Albemarle Correctional Institute in New London.
“After we have reviewed all the information, the interviews, there’s no credible evidence to put Mr. Smith at the scene of the crime — the Silk Plant Forest —on Dec. 9, 1995,” Ferree said. “I think that we were asked to come forth with information and the truth, and even though the council did give some limitations, but sometimes you have to go beyond particularly when you discover what is just and right.”
The limitations of which Ferree spoke were clearly outlined by City Attorney Angela Carmon after he put forth his motion. Carmon explained the city council clearly defined the committee’s mission — to review the case and make recommendations to improve Winston-Salem police procedure.
Carmon said Ferree’s motion goes beyond the committee’s scope and asking the city council to get involved in the criminal justice system goes beyond its powers.
“The city council created this committee to perform a comprehensive, fact-finding review,” Ferree said in response to Carmon’s comments. “We are charged as persons to do justice. This truth has come out. This is the truth; this is the bottom line and you have to accept facts. What we have discovered is beyond what they have charged us to do.” Winston-Salem City Councilman Dan Besse sided with Carmon’s interpretation of the committee’s charge.
“It’s really far beyond the area of investigation we asked the citizen committee to undertake,” Besse said. “The truth is, whether we like it or not, asking the city council to overturn a criminal conviction, is like asking the county sheriff to assume the role of the Coast Guard.”
A. Fleming Bell, professor of Public Law and Government at UNC School of Government, said city councils in North Carolina have no authority to reopen a criminal case. “Such matters are within the jurisdiction of the judicial system,” Bell said. “Any person may ask the appropriate judicial official such as a district attorney to reexamine a case, although in most cases the official need not make any particular response. It seems to me that a city council could make a similar request, but the council would have no greater standing than anyone else in so doing.”
Winston-Salem Mayor Allen Joines said the council has promised to turn over to the defense any information that comes out of the committee’s investigation. It’s possible the city council could encourage the City Manager Lee Garrity to ask Police Chief Scott Cunningham to reopen the Silk Plant Forest assault case, Joines said. “But there was just a hearing. I would want to see the compelling argument from the committee to reopen the case,” Joines said. The hearing of which Joines spoke was a plea hearing held in January in Forsyth County Superior Court where Smith asked for a new trial.
Superior Court Judge Richard L. Doughton denied Smith’s plea, saying his defense team failed to prove their claims. Jeff Welty, a professor at the UNC School of Government, agreed with Joines, stating that only two parties that have the ability to reopen a criminal case, the state or the defendant.
“I don’t think the city council has the authority to nose into the judicial system. The city council is not a party to the criminal case and don’t have the authority to enter court documents,” Welty said. “Even if the city council is the boss of the city manager, and the city manager is the boss of the police chief, but when you go down that chain, the prosecutor’s office is a state office.”
The case of Darryl Hunt
Darryl Hunt strongly believes if a citizen review committee had reviewed his case while he was imprisoned for nearly 19 years for a crime he didn’t commit, it might have sped up the day of his exoneration. Hunt said by adopting Ferree’s resolution, the committee would remain true to its intended purpose — to uncover the facts.
As founder and president of the Darryl Hunt Project for Freedom and Justice, Hunt said his group is planning on petitioning the city council to encourage Garrity, Chief Cunningham, and District Attorney Tom Keith to reopen the Kalvin Michael Smith case.
Mark Rabil, Hunt’s
attorney for 20 years, pointed out that it took Hunt’s case to provide
the impetus for the Sykes Administrative Review Committee. And it was
the Sykes Committee that led to the formation of the Silk Plant Forest
Citizen Review Committee. Rabil also pointed out that in 1985, former
city manager Bryce Stuart
issued a report on the Winston- Salem police’s handling of the Deborah
Sykes murder investigation, which ultimately led to the wrongful
conviction of Hunt. It was the Winston-Salem
City Council that asked Stuart to look into the matter, Rabil said.
“That’s the unique thing about Winston- Salem,” he said. “We have a
city council that is open and courageous enough to say let’s look at
the facts. It pits the city fathers on the council against the police
department, but you cannot trust the system to run on its own. You have
to have checks and balances. The court system has not proven effective
in checking the power of the police department or the district
attorney.”
Rabil said Stuart’s investigation revealed
information “we didn’t have but should have had through the court
system or the DA’s office.” The Silk Plant Forest Citizen Review
Committee is serving a similar function, he argued. Rabil said the
committee has access to police documents and has two Winston- Salem
police officers assisting with its investigation. “Unless you have the
cooperation of people inside the police department it doesn’t do any
good,” Rabil said. “That’s what’s going to free Kalvin ultimately, is
the information that is hidden in these files. What was disclosed in
the court hearing is only the tip of the iceberg.”
Jet
Hollander, an advocate for Smith and a member of the Sykes Committee,
agreed with Rabil. Hollander said if the committee had existed before
Hunt was exonerated it would have revealed essential truths, including
the fact that Willard Brown, who ultimately confessed to the crime, had
been a key suspect in the case. “Had Mark Rabil known either of those
secrets that police and prosecution successfully hid from him, he would
have had Willard Brown’s DNA tested and Darryl Hunt would have been
freed ten years earlier,” Hollander said. Ferree concurred with Rabil
and Hollander’s opinion, saying his review of juror interviews revealed
they were discouraged about the dearth of facts presented during
Smith’s 1997 trial.
Rabil said Ferree’s motion underscores a
universal axiom in the criminal justice system, and his recommendation
to the city council falls within the committee’s scope.
“The
truth has to be revealed through the court system and other means,” he
said. “(The committee) was told to go out and find the facts. I agree
with those members of the committee that they should render an opinion
on the innocence of Smith as a matter of fact and provide the facts and
the documents to back up that opinion.”
Why form the committee?
Committee members Cheryl Mouzon and Lois Mendezoff expressed their support for Ferree’s motion during the Feb. 23 meeting.
“Given
the limits of the city council given this suggestion, I think it’s
important that we make the statement in our final report that we found
no evidence to link Mr. Smith to the scene of the crime, that in all of
our review we found nothing to indicate his guilt,” Mendezoff said.
Ferree said he’s confident he can sway two more committee members to
support his resolution to achieve the majority necessary to include the
recommendation it in the committee’s final report.
Besse said he understands the frustration of Smith’s supporters, but he believes the city council has no business getting involved in the criminal justice system.
“What
we asked the citizen committee to do and what I hope they will
eventually get to us sooner rather than later are their recommendations
on what more we need to do to reduce the chances of miscarriages of
justice in future cases,” Besse said. In 2007, Hunt received a $1.65
million settlement and a formal apology from the city of Winston-Salem
for his wrongful conviction. Hunt said he understands the concerns of
the city council members who wish to limit the scope of the committee’s
final report.
“No one wants to be liable for a wrongful
conviction, but money shouldn’t trump a life,” he said. “A life is more
important and the longer it goes on, the more money it’s going to cost,
and the more victims we’re going to have. Kalvin is innocent but the
real person is out here so it should be a public safety emergency.”
Ultimately,
the question the members of the Silk Plant Forest Citizen Review
Committee must answer is why do they even exist, Ferree said. Is the
committee’s purpose to recommend reforms of police procedure or to
uncover the truth in the Smith case? “If we don’t come forth with
justice, who will?” Ferree asked. “If the committee doesn’t have the
power to find facts and report those facts to the city council, why
form the committee?”
Darryl Hunt, founder of the Darryl Hunt Project for Freedom and Justice, said if a committee like the Silk Plant Forest Citizen Review Committee had been formed during his incarceration, it would have forced the wheels of justice to turn a bit faster, and he would have been exonerated sooner.
