Retired FBI agent: Kalvin Michael Smith deserves new trial

YES! Weekly | June 19, 2012
The latest chapter in the ongoing saga surrounding the brutal 1995 beating of Silk Plant Forest store clerk Jill Marker has culminated with a respected retired FBI assistant director calling for a new trial for Kalvin Michael Smith, the man convicted of the crime almost 15 years ago.

Former FBI Assistant Director Christopher Swecker said in his legal review for the Silk Plant Forest Truth Committee that the original investigation by Detective Don Williams “was seriously flawed and woefully incomplete, thus calling into question whether the original trial jury rendered their verdict based on all the relevant and accurate facts of the case.” He said he fully agreed with the findings of the Silk Plant Forest Citizen’s Review Committee, which stated in 2009 that “there is no credible evidence that Kalvin Michael Smith was at the scene” of the crime on the night of the attack, and that they had “no confidence in the investigation.”

Smith is currently incarcerated at Caswell Correctional Center near Yanceyville, and has a habeas corpus appeal filed in US District Court on the grounds that the prosecution failed to disclose favorable evidence, the conviction was tainted by false evidence, Marker’s trial testimony was inappropriate and the defense counsel was ineffective. Standing with members of the Silk Plant Forest Truth Committee at a press conference in front of City Hall after the release of the report, Bishop Todd Fulton of Mount Moriah Outreach Center called on NC Attorney General Roy Cooper to file a motion to overturn Smith’s conviction. 

Fulton pointed out that Cooper hired Swecker to review the procedures of the State Bureau of Investigation Crime Lab. Mark Rabil, a local lawyer who helped free Darryl Hunt, built on that theme during an earlier press conference at Wake Forest University Law School. 

“With Mr. Swecker’s law-enforcement background and the work he’s done for the attorney general, this would be useful for [Cooper] to review,” Rabil said. “He could say, ‘I reviewed the document, and I think this calls for a new trial.’”

“The first step is to overturn the conviction,” said James Coleman, advisor to the Duke University Law School Innocence Project, on the steps of City Hall. “Then, if they think there’s enough evidence, they can have a new trial. My guess is that they’ll come to the same conclusions that the Silk Plant Forest Citizens Committee came to: that there’s no credible evidence that Kalvin Michael Smith is the one who perpetrated this crime.” 

Coleman and others called on Winston-Salem City Council to pass a resolution requesting a new trial. City Manager Lee Garrity was observed the press conference. 

“Mr. Garrity, do this,” Coleman said. “Get this done.” 

Garrity said after the press conference that he plans to bring the matter to the city council’s public-safety committee in July. 

“I don’t expect major disagreements with Mr. Swecker’s report,” Garrity said. He added, “We all agree it was a far-from-perfect investigation.” 

East Ward Councilman Derwin Montgomery, who serves on the public safety committee, said he has long held the position that Smith deserves a new trial, adding that he would be willing to raise a discussion about the possibility of council passing a resolution advocating that the attorney general petition the federal court to overturn the conviction. 

Mayor Allen Joines said he was open to any recommendation in Swecker’s report and said City Attorney Angela Carmon is researching whether it would be appropriate for council to pass a resolution calling for Smith’s conviction to be overturned. 

Noelle Talley, spokeswoman for the NC Attorney General’s office said on Monday: “We’ve just been declining to comment at this point.”

Swecker savaged the original investigation during a press conference at Wake Forest University Law School on May 29, remarking, “I frankly believe this detective was in over his head. Probably the most puzzling aspect of this is why this investigator was assigned to this case.” 

Swecker’s report notes that Williams was a robbery detective, and referenced earlier research indicating that the police department “in 1995 was laboring under a heavy caseload of unsolved homicides and robberies and was plagued by violent gang activities.” 

The former FBI agent said he reviewed a videotaped interview with Marker, who was severely brain damaged during the assault, that showed her nodding after Detective Williams asked her if Smith was the one who attacked her. 

“I simply do not agree with Detective Williams’ statement in the supplemental report that she was clear and coherent,” Swecker said. 

“I would have stopped that interview five minutes into it,” Swecker added, “and said, ‘This is not appropriate.’” 

Swecker also assailed the credibility of Eugene Littlejohn whose testimony that Smith grabbed Marker in the store was critical to conviction. Swecker said Littlejohn’s version of events changed with each interview and that Williams provided him with no less than 20 details about the crime. 

“Eugene Littlejohn would say whatever he thought the interviewer wanted him to say,” Swecker said. 

Swecker noted that a vital piece of evidence was either lost or destroyed. Swecker reported that Williams insisted he reviewed surveillance tape from the adjacent Toys R Us store after Littlejohn told him that he and Smith went in the store after the attack. That evidence, which could have proved or disproved Littlejohn’s account of events, was never logged or presented in court. 

In other instances, Williams used selective documentation based on his stated beliefs about what was relevant to the case. 

“What was ‘relevant’ in Detective Williams’ vernacular,” Swecker said, “was what pointed to Kalvin Michael Smith’s guilt.” 

Many leads were not developed, Swecker wrote in his report, including a phone call received from Marker by Jeana Schopfer shortly before the attack that implicated another suspect: Kenneth Lamoureaux. 

“So we have all these witnesses and all this evidence — circumstantial evidence — that Kenneth Lamoureaux was in the store that night, and that he had an interest in Jill and that he was not happy at her rejection,” Swecker said during his press conference. “We have no physical evidence whatsoever — no physical evidence — that links Kalvin Michael Smith to this case, to the attack or anyone else for that matter. Physical evidence played no role in this investigation, except for the fact that there’s a lot of physical evidence that is not with us today. 

“There is a lot of investigation that needed to take place on Kenneth Lamoureaux,” Swecker continued. “Now, when he was approached by Detective Williams he initially lied about even knowing Jill Marker, which is a pretty fantastic story since he was in the store and he was also in the daycare place, and it’s pretty well documented that he knew Jill Marker. Two, that he wasn’t there that evening. It’s pretty well documented, I think, from these witnesses that he was there that evening. Now, he later recanted and went back on his initial statement.” 

Swecker said other reasons Lamoureaux, although no longer alive, should be considered the prime suspect is that he had a domestic-violence restraining order against him, had been recently released from a psychiatric ward and had beaten his wife in a similar fashion to how Marker had been attacked. 

Swecker concluded in his report that “due to the flawed nature of the original investigation only a new trial that considers the full record and evidence not available, misrepresented or omitted in the original trail will provide the full measure of justice the community of Winston-Salem and every accused defendant deserves.” 

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