In the News

July 22, 2012
Winston-Salem Journal

Liability may be at center of city's silence on Kalvin Smith case

By: Michael Hewlett

Several members of the Winston-Salem City Council have acknowledged they think that the city's police department botched the investigation that led to the 1997 conviction of Kalvin Michael Smith in the Silk Plant Forest case.

Council Member Molly Leight said: "I think it was flawed, and that's the crux of the matter: What does that mean?" And Council Member D.D. Adams said, "Did the investigation have flaws? Yes. There were noncompliance issues. There were some questionable issues, as well."

Even so, most council members wouldn't say to what extent they're willing to support Smith's effort to get a new trial. Last week, they met behind closed doors to discuss the matter, then scheduled another closed meeting for Aug. 6. Their silence may be tied up with the issue of liability should Smith ever file a civil lawsuit against the city, legal experts said.

"That's one very powerful reason not to do it. I don't know if I would necessarily want to lay that out. You're putting him in a position to prevail. It would enhance the chance of the plaintiff," said Rob Warden, the executive director for the Center on Wrongful Convictions at Northwestern University School of Law.

Smith was sentenced to as many as 29 years in prison. He has maintained his innocence in the severe beating in 1995 of Jill Marker, an assistant manager at the former Silk Plank Forest store off Silas Creek Parkway. Marker, who was pregnant, nearly died after the attack. She gave birth to her son while in a coma and now lives in Ohio, where she requires 24-hour care.

After exhausting appeals in state court, Smith filed an appeal in federal court in 2010 — and a local group describing itself as the Silk Plant Forest Truth Committee has recently urged the city to support the appeal. One option would be to file a document known as an amicus brief in federal court saying that the city supports a new trial because it has sound reason to believe that the investigation impeded Smith's right to due process.

An amicus brief from the city would be a "persuasive" tool in Smith's effort for a new trial, Warden said. Similarly, David Pishko, Smith's attorney, said a brief from the city could have a significant impact.

"I think the key thing is … the city can tell the court that problems with the investigation are material to the administration of criminal justice in this community," he said.

Asked why the council members might be hesitant to file an amicus brief, Warden said that they are probably weighing the city's liability exposure should Smith be exonerated and file a civil lawsuit against the city.

By advocating through federal court that Smith should get a new trial because the police department's botched investigation impeded his chance of getting a fair trial, the city would deepen its liability exposure because the amicus brief is considered an admission of fact.

Jim Coleman, the co-director of the Wrongful Convictions Clinic at Duke University School of Law, also said: "If they enter an amicus and ask that the court grant a new trial because of the incompetence of the investigation, and that their belief is that the investigation denied Kalvin Smith a fair trial, then any affirmative statements that they make about the investigation are admissions of fact. They won't be able to challenge that in court."

Still, the city could put itself in a better position against any possible civil claim by filing the brief, regardless of its possible impact on liability, Warden and Coleman said.

"It would be best to get out in front of this and get on the side of being open," Coleman said. "Not taking action increases liability. In the case that he gets exonerated and takes action against the city, the city puts itself in a bad position because of inaction."

A jury considering punitive damages would take into consideration the effort the city made to try to get him out of prison, Coleman said. If the council members continue to defend the investigation, a jury might hold that against them.

"Keeping him in prison and not trying to make an effort to get his conviction overturned would be held against them," he said.

Council views

Smith's appeal is focused on specific legal issues, Pishko said, such as ineffective assistance by counsel and allegations that evidence favorable to Smith was not documented and not turned over to the defense.

In May, former FBI agent Chris Swecker had this to say in a report about the police investigation: "It is clear that the Silk Plant Forest investigation 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."

Swecker said in his report that police detectives provided inaccurate court testimony, failed to document evidence that might have been favorable to Smith and did not thoroughly pursue one suspect who had a long criminal record and another who had a history of domestic violence. Swecker called for a new trial.

Based on the Swecker report, the Truth Committee asked the council to file an amicus brief in support of Smith's effort to get a new trial. But the council could also show support by passing a resolution to that effect, a measure the Truth Committee says would be a weaker show of support.

The council members differ on how flawed the investigation was and what should be done.

Council Member Robert Clark said the police investigation was incomplete but declined to say whether it was flawed.

He said he is reading all the relevant information about the case, including a 2009 report from the Silk Plant Forest Citizens Review Committee, which was set up by the council to review the police investigation, and a 2010 report from the Winston-Salem Police Department.

The citizens committee concluded that it had no confidence in the police investigation. The Winston-Salem Journal raised questions about the police investigation in a 2004 series about the case, and the Innocence Project at Duke University School of Law has also criticized the investigation. The police department internal review concluded that the investigation should not be reopened.

Making a decision on whether to weigh in on a judicial matter is complicated, Clark said. He wants to not only make sure he understands the process but also talk to Forsyth County District Attorney Jim O'Neill on his view of the case.

"I think we're all trying to get our heads around something we don't deal with every day," he said. "It's a very serious situation, and I'm trying to take it very serious."

For his part, Council Member James Taylor, who served on the citizens review committee, said it is obvious that the police investigation was flawed and he would go as far as voting to file an amicus brief.

"I just feel like we should leave no stone unturned," he said. "If an innocent man is possibly sitting in prison, the city council should do everything it can to rectify that."

Taylor, however, declined to discuss legal liabilities that the council has talked about in closed session.

Council Member Dan Besse declined to say whether he believed the investigation was flawed.

"I'm not prepared to discuss that issue at this point," he said. "The council is still in consultation with the city attorney."

City Attorney Angela Carmon declined to comment, saying it would be inappropriate to do so while she is giving legal advice to council members.

Coleman, the Duke professor, said the council is in a unique position.

In 2007, the city paid Darryl Hunt $1.65 million in restitution for the city police work that helped wrongfully convict him in the 1984 murder of Deborah Sykes, a Winston-Salem newspaper editor. Hunt was pardoned in 2004 after DNA evidence revealed that another man, Willard Brown, had raped Sykes. Brown later confessed to the murder.

"This is not like the Darryl Hunt case," Coleman said. "They're in a position to do something."