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 that the tape went back to the store and never entered the case file.” In his deposition, Williams stated that he was looking for Smith and Eugene Littlejohn — a witness for the prosecution during Smith’s 1997 trial — on the videotape, Blynn noted. But Smith did not first become a suspect until six months after the Jill Marker assault.“How could he have known to look for these people until the case had been open for months?” Blynn writes in his notes. “And, it makes no sense to me that [Toys-R-Us] would have been able to produce a tape for the night of the crime several months later. So, it seems to me that the tape must have been obtained relatively shortly after the crime occurred and kept in the file for some time. This would be consistent with Barker’s testimony. Or, it was seized and kept outside the file for some time. Or, it was seized and, when it did not prove useful in corroborating what Williams wanted it to corroborate — Littlejohn’s story about he and Kalvin robbing Silk Plant Forest that night, he pitched the tape.”
Despite the findings of the citizens review committee, the internal police report concludes that “the WSPD diligently followed up viable investigative leads for the Silk Plant Forest case in a timely manner and followed each lead to a logical conclusion.” However, Cunningham announced in March that some evidence collected in the Silk Plant Forest investigation was never sent out for testing. The evidence, comprised of Jill Marker’s clothes and a piece of cardboard with blood and hair on it, was never admitted at Smith’s 1997 trial. The items are listed on inventory sheets of physical evidence seized by police investigators in 1995, which were provided to both the district attorney’s office and Smith’s defense lawyer William Speaks.
“Apparently, no one ever asked that it be tested,” Cunningham said at the time. On July 21, after two rounds of “touch” DNA testing, Marker’s clothes did not reveal any male DNA.
“It is unknown if DNA was present on the clothing at the time of the attack and had deteriorated over the years,” Cunningham said in a statement. “It is also unknown if DNA was ever present on the clothing. These results do not prove or disprove the guilt or innocence of any person associated with this crime.”
Cunningham said DNA profiles found on Marker’s clothing were compared to Marker and Smith’s DNA profiles, as well as DNA profiles from a “subject of interest.” Separate tests by the State Bureau of Investigation crime lab and LabCorp yielded the same result — no presence of male DNA.
“Some may still question the conviction and give different weights to different items or information,” the 68-page internal report states. “This report is not intended to change minds or viewpoints. It is intended to present a detailed overview of the investigation and provide a comprehensive review and analysis of the facts, evidence, issues and investigation while responding to the recommendations of the [Silk Plant Forest Citizens’ Review Committee].”
In summary, the committee unanimously agreed that “there are no further viable avenues of investigation and the Silk Plant Forest case should remain closed.”
Smith is currently serving a 23- to 29-year prison sentence for the assault of Jill Marker during an armed robbery of the Silk Plant Forest shop. Smith has steadfastly maintained his innocence. In January, Smith’s attorney, Duke law professor James Coleman, filed a petition for a writ of habeas corpus in the US District Court for the Middle District of North Carolina. Coleman cited the finding of Silk Plant Forest Citizens’ Review Committee that there was “no credible evidence that Kalvin Michael Smith was at the location of the Silk Plant Forest store in Winston-Salem, North Carolina, on December 9, 1995, at or about the time that the crime for which he was charged was committed,” as grounds for Smith to receive another day in court.
