Release could bolster appeal by Kalvin Michael Smith
Forsyth County Superior Court Judge Richard W. Stone has ordered that a portion of the final report of the Silk Plant Forest Citizens Review Committee, which includes testimony given by former Winston-Salem police Detective Donald R. Williams before the Winston- Salem City Council, be made public.
The lawyer for Kalvin Michael Smith, the man convicted of brutally assaulting Jill Marker during an armed robbery of the Silk Plant Forest shop in December 1995, said Williams’ testimony could help bolster Smith’s petition for a writ of habeas corpus in federal court. Jim Coleman, director of the Duke Innocence Project and Smith’s lawyer, said he plans to file a habeas petition by the end of the year. If the petition is heard, Coleman will argue that the state of North Carolina has no legal basis for detaining his client.
Coleman said the writ of habeas corpus plea will make many of the same arguments that David Pishko, one of Smith’s attorneys, made during a plea hearing for a new trial in Forsyth Superior Court last January. Judge Richard L. Doughton denied Smith’s appeal, ruling the defense team failed to prove their claims. Coleman said he believes Williams’ testimony to the city council in June directly contradicts the testimony he gave during the January plea hearing.
“I think [Williams] knows he conducted a bad investigation,” Coleman said. “I think we were spot on about his misconduct in this case. His testimony will reveal that.”
Coleman is not the first person to point out inconsistencies in Williams’ testimony regarding his investigation of the Silk Plant Forest case.
Guy Blynn, chair of the Silk Plant Forest Citizens Review Committee, composed a memo, which is included in the committee’s summary report, regarding his impressions of Williams’ testimony before the city council on June 11. Referring to the former detective’s statements regarding his hand-written changes to a typed supplemental report in November 1996, Blynn characterized Williams’ revisions as “a fictionalization of what really happened.”
Blynn also pointed out a number of inconsistencies in Williams’ testimony, including the former detective’s reasoning for dropping Kenneth Lamoureux as a suspect in the case. Blynn said Williams testified he ruled out Lamoureux after Marker told him she was attacked by a black man. When the committee’s investigators, Lt. Joseph Ferrelli and Sgt. Chuck Byrom, pointed out that Williams’ case notes reveal he didn’t speak to Marker until six months after he dropped Lamoureux as a suspect, Williams refused to alter his story. Blynn wrote that Williams “is prone to invent self-serving stories and unwilling to budge from these stories even when he is made to look foolish.”
Blynn was one of seven committee members who signed a statement that they could find “no credible evidence” to link Smith to the assault on Marker.
Blynn appeared at the Dec. 17 court hearing when Judge Stone handed down his ruling. He said the public has a right to know all the facts that were turned up by the committee’s investigation into the Silk Plant Forest case.
“They ought to have a complete record, not a partial record,” Blynn said.
The public release includes a number of items from the appendices of the citizen review committee’s final report related to Williams’ investigation of the 1995 Silk Plant Forest-Jill Marker assault case. The items to be released by the city attorney’s office include closed session minutes of the committee related to Williams’ investigation, e-mails by committee members, a transcript of Williams’ June 11 testimony and a number of reference documents.
Assistant City Attorney Al Andrews said the documents, which are included in the voluminous appendices of the committee report, will likely be publicly released this week. Andrews said Williams’ testimony would have to be “scrubbed” to remove all references to the eight current and former Winston-Salem police officers that have filed a motion in court opposing the release of the full report.
The petition brought by Michael McGuinness, the lawyer representing current and former Winston-Salem police officers Michael N. Barker, Richard E. “Ted” Best, Robert G. Cozart, John Grismer, Bryan L. Macy, Michael C. Rowe, Michael L. Sharpe, Michael Poe, Randy Patterson, Randy Weavil, Lonnie Maines and Mary McNaught, will be heard on Jan. 15.
The case was originally scheduled for Dec. 14, but Judge Stone decided to treat Williams’ case separately from that of the eight other current and former officers. Williams did not appear in court and did not have a lawyer represent him when his case was heard on Dec. 15 at the Forsyth County Hall of Justice.
Andrews argued that Williams’ testimony before the city council is “the subject of intense public interest” with numerous requests for its release by the media and private citizens.
Upon hearing of Judge Stone’s ruling, Coleman immediately requested a copy of the transcript of Williams’ testimony. In his e-mail reply, Andrews characterized the city’s release of the transcript and other information as “imminent rather than immediate.”
“The city must be careful to comply with the commandments and spirit of the judge’s order,” Andrews wrote. “That will involve scrubbing the Williams transcript and other committee materials to ensure that any material to be excluded is redacted. That is easier to be done with written materials than the associated audio or visual material. City Attorney Angela Carmon made clear that in order to accomplish this significant task we would need approximately [one] week, which takes us up to Christmas Eve, but before year’s end.”
Andrews said the city must first send Williams a copy of a Dec. 17 order in advance of the release to prevent claims of no notice. In a postorder bench conference, Judge Stone acknowledged that Williams would have the opportunity to seek a stay of the order after notification, Andrews stated.
“We will not provide Williams information regarding this option as such knowledge is his responsibility,” said Andrews.
Williams filed a letter with the Clerk of Superior Court on Dec. 4, stating that he opposed the release of any personal information or records of his criminal investigations. The former detective could not be reached for comment.
The decision on whether to release the remainder of the report’s appendices, or those related to the eight former Winston-Salem police officers, is likely to be decided during the Jan. 15 court hearing, Andrews stated.
Best, one of the current officers represented by McGuinness, was one of the detectives that conducted an internal administrative review of police procedure in the Marker assault case in 2007. City Manager Lee Garrity subsequently threw out the police department’s internal investigation after it was learned that Best had served as Williams’ supervisor.
In his filing, McGuinness argued that the full release of the report would violate the rights of the officers under both the state constitution and the US Constitution.
Winston-Salem police Chief Scott Cunningham said he fully supports the city’s actions to have all the materials collected by the Silk Plant Forest Citizens Review Committee released publicly. Cunningham also noted that everyone, including officers, are free to exercise their rights and “should not be criticized for that.” Garrity said he also strongly supports the city’s action to get the full report released.
“The release of this information is essential to maintaining public confidence in the police department,” Garrity said.
Coleman echoed the sentiments of Cunningham and Garrity.
“There is no basis to withhold information about their conduct in this investigation,” Coleman said. “When they talk about protecting personnel records, it’s the job they were hired to do. It’s not a personnel matter; it’s a public matter. They are trying to prevent the truth from coming out. They are trying to prevent the public from knowing.”
Blynn joined with Coleman, Cunningham and Garrity in calling upon Judge Stone to dismiss the officers’ attempt to block the full release of the committee’s report.
“These police officers are attempting to keep information non-public,” Blynn said. “Members of the public have come up to me and said, ‘What are they trying to hide?’ I don’t know what they’re trying to hide. I don’t know that they’re necessarily trying to hide anything, but it gives the entire department, every officer in that department a bad reputation because it looks like they’re not acting in the public interest.”
In the midst of legal wrangling over the full release of the report, what shouldn’t be forgotten is that Smith is currently serving the 13th year of a 28-year prison sentence, Coleman said.
“The committee decided more than a year ago there was no credible evidence that Kalvin was at the scene of the crime,” he said. “We’ve been saying that for four years. Anyone who looks at the facts in this case knows it’s true.”
Former Winston-Salem police Detective Donald R. Williams testified during a plea hearing for Kalvin Michael Smith last January. Forsyth County Superior Court Judge Richard W. Stone has ordered that Williams’ testimony given before the Winston-Salem City Council on June 11 be made public. (file photo courtesy of Winston-Salem Journal)
