A Botched Investigation

Investigation AnalysisA Better Suspect

Winston-Salem Police Department Investigation of the Silk Plant Forest Robbery and Assault of Jill Marker

Analysis by former FBI Director Christopher Swecker

The Silk Plant Forest Truth Committee engaged Director Swecker to do an independent review of the original Silk Plant Forest investigation. (See Tab: Primary Sources, Swecker SPF Legal Analysis for Swecker’s credentials). He was not asked to advocate in any way. And, he was not asked to render an opinion on whether Kalvin Michael Smith was innocent or guilty. Rather, Director Swecker was asked only to do an independent review of the case and, if he chose, to announce that opinion in whatever way he chose, to whomever he chose, at any time he chose. Before concluding his report and issuing it publicly, Director Swecker elected to review his findings on May 3, 2012 with then-Winston-Salem Police Chief Scott Cunningham.

In his Analysis, Swecker notes that, when Jill Marker survived the attack, “the case was inexplicably assigned” to WSPD Detective Donald R. Williams, a robbery investigator working his first robbery case, “despite the fact that the WSPD Procedures Manual at the time mandated that the case assignment be based on the most serious charge. The most serious charge under the circumstances would have been Assault with A Deadly Weapon with Intent to Kill Inflicting Serious Bodily Injury.“ (Swecker, 8, 9 n.10)

Director Swecker, after his 16-month review of the original investigation concluded, “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, 16-17)

In his Appendix (pp. 17-37), Swecker enumerates 12 categories of “actions and inactions that serve to undermine the credibility of the SPF investigation.” Those categories are named here with brief examples of Swecker’s data, analysis and characterization for each category; the sources for the material referred to in Swecker’s legal review are noted in parentheses:

  1. Selective documentation, lack of documentation or mischaracterization of investigation (Swecker, 16-18)

    Det. Williams reportedly told the Winston-Salem Journal he didn’t document everything, partly because the defense could use it to “take it off Kalvin” Zerwick, 4, 2004; Swecker, 10); among the things not documented: several photo line ups, including ones shown to Marker and the ToysRUs video that confirmed or impeached Littlejohn’s testimony.

  2. Questionable Witness Interview Techniques (Swecker, 18-21)

    In Swecker’s opinion, Det. Williams “essentially fed (Eugene Littlejohn) a detailed script”; Williams established “no clearly defined method” (p.22) to communicate with Jill Marker (who could not speak) during a key interview; he repeated questions until he got what he interpreted as the answers he wanted, and recorded neither all the questions, nor the answers.

  3. Violations of Brady Rule (Swecker, 21-22)

    Williams did not document in his written reports Marker’s failure to identify Smith from a 10/31/1996 photo line up; the possible identification of Lamoureux by Marker was not documented and unknown to the defense.

  4. Inadequate Investigation of [Kenneth] Lamoureux (Swecker, 22-25)

    Credible witnesses put Lamoureux at the SPF store close to the time of Marker’s assault; Lamoureux was dropped when he moved from Winston-Salem; none of his family, friends or associates were questioned; Lamoureux’s estranged wife provided police information about his violent outbursts, with repeated blows to her face and head; there was no follow up with Jeana Shopfer who called to say that Marker told her by phone just before her assault that Lamoureux was in the store, asked her to dinner and got angry when she turned him down.

  5. Inadequate Investigation of [Michael] Fuller (Swecker 25-27)

    Fuller drove a Mustang seen near SPF near the time of the attack; it left at a high rate of speed; he had a long criminal record; Fuller’s photo was never shown to any witnesses, including Marker.

  6. Incomplete Investigation of [Shane] Fletcher and his relationship with Lamoureux (Swecker, 27-28)

    Fletcher confessed to the crime, giving details of the crime not known to the public; WSPD investigators never determined how he knew those details; Det. Williams did not pursue possible contact between Fletcher and Lamoureux, who occupied rooms across the hall from one another in the Forsyth Hospital psych ward.

  7. Missing Evidence (Swecker, 28)

    ToysRUs surveillance video; cash register tape from Silk Plant Forest; results of 7/22/1996 polygraph test that Kavlin Smith passed.

  8. Significantly Delayed Reports (Swecker, 28)

    Reports were routinely written months after the included events took place.

  9. Lack of Candor in an Affidavit, Testimony, and Reports (Swecker, 28-31)

    Former Det. Williams testified under oath: that he never took notes (testimony before Winston-Salem City Council 2008); that he did take notes (pre-trial hearing, 1997); that “my notes will speak for themselves” (SPFCRC interview, 2008). Williams testified under oath (MAR, January 2009) that he viewed the ToysRUs video only once after Smith became a suspect (January 1997), contrary to the supplemental report (dated 12/28/1996) by Det. Barker that he and Williams reviewed the tape before that date. Det. Williams testified under oath (Evidence Suppression Hearing, 1997) that Smith passed a polygraph test on July 22, 1996 and Smith did not pass the polygraph (City Council testimony 2008). Det. Weavil testified under oath (pre-trial hearing,1997) that he wrote Smith’s statement, but a handwriting expert determined that Smith wrote it, as Smith had always claimed. Det. Williams testified under oath (City Council, 2008) that he dropped Lamoureux as a suspect in April of 1996 because Marker identified her attacker as a black male, but Williams did not interview Marker until October 1996.

  10. Failure to Follow Leads and Develop Relevant Evidence (Swecker, 34)

    Det. Williams did not follow up on Jeana Schopfer’s phone call informing him that Marker had called her just before the attack, advising Schopfer that Lamoureux was in the SPF uninvited and had asked her to dinner. Det. Williams failed to locate and process Lamoureux’s white work van, interview his employer, or secure his home phone records.

  11. Inadequate Supervision of the SPF Investigation (Swecker 32)

    A supervisor can lose objectivity in an investigation by participating in it, as Sgt. Randy Weavil did with Williams’ interview of Smith and Valerie Williams.

  12. The “enhanced memory” of Ivadine Hester (Swecker, 32-34)

    Hester’s memory was enhanced by an investigator so that she “remembered” that a car she saw near SPF the night of the attack had out-of-state plates and several specific digits, although she could not recall that information shortly after the attack.

Click here to read Swecker’s full Report.

Lamoureux

According to Director Swecker, Kenneth Lamoureux was, “for very good reasons, the prime suspect almost from the outset of the SPF investigation.” (Swecker, 12) Lamoureux was 46, with thinning hair and a bad heart. There exists no reason to rule him out today. (Swecker, 1)

Stalking, Domestic Violence & Mental Illness

“Lamoureux’s past history including military record, complete history of domestic assaults, his past stalking of a nurse at Forsyth Hospital and his prior contacts with Jill Marker were not fully investigated, or if such investigation took place, it was not documented.” (Swecker, 24)

“Lamoureux was sending flowers and cards and frequently calling a nurse, Wanda Schofield, who worked with his wife at the Forsyth Hospital. The inappropriate phone calls and cards were neither solicited nor wanted by Schofield and could be described as stalking behavior.” Swecker, 27)

“Consistent with prior “stalking” behavior Jeana Schopfer provided information that Marker called her on the evening she was attacked to tell her that Lamoureux had been in the store, had asked her to dinner and that he was angry that she turned him down.” (Swecker, 25)

Schopfer also said that Melanie Beth McCollum, another teacher at Today’s Child day care center, had told her that Lamoureux had been coming by the Silk Plant Forest store attempting to talk with Jill. McCullom reports of Mrs. Marker, “She just thought it was strange that he would keep coming in and not buying stuff,” McCollum told the lead detective in a taped interview. “She said she was friendly, but she didn’t think she was that friendly for him to keep coming back.” McCollum also told Det. Williams that she had seen Lamoureux near the Silk Plant Forest on the afternoon of December 8, 1995.

Two other women, Cynthia Cloud and Stella Goode, put Lamoureux at the Silk Plant Forest Store within an hour of the attack on Mrs. Marker. Having called Crime Stoppers three days after the assault, they said that they had seen a suspicious looking, middle-aged white man in the Silk Plant Forest store an hour before the attack on Mrs. Marker. When they entered the store, he came from the rear. Swecker reports that they “independently stated that he followed them around the store, in a loud voice asked a question about their clothing and muttering something they could not understand retired to the general location in the back of the SPF store where Mrs. Marker was later attacked.” Both identified Lamoureux from photo lineups, with small qualifications. (Swecker, 13n. 19)

A third woman, Paula Glover, came into the store that night and asked Jill if Glover’s son could use the restroom. Mrs. Marker said no, saying that the back of the store was “too dangerous.” According to her later affidavit (see Hewlett, WSJ, 5/2/10), as she was leaving the store around 8:45 p.m., Glover said that she heard Mrs. Marker talking on the phone in a low, serious tone about the store customers, corroborating Schopfer’s account of Mrs. Marker’s call to her around the same time. (Swecker, 13) According to Swecker, Det. Williams never obtained this information from Glover, who described the detective as “disheveled” and uninterested in the information that she volunteered. (Swecker, 26. n. 33.)

Swecker observes,

“Lamoureux was under a domestic violence restraining order for battering his wife on several occasions and had just been released from an involuntary commitment to the psychiatric wing of Forsyth Hospital. According to Schopfer, shortly before the attack occurred Marker informed her in a phone call that Lamoureux had appeared at the SPF store and had asked the married Jill Marker to go to dinner with him. Marker mentioned to Schopfer that Lamoureux was upset that she had refused him and had been hanging out in the store. “(Swecker, 3)

“Lamoureux had recently lost custody of his children due to his repeated acts of domestic violence and was subject to a restraining order to prevent further violence against his wife. This violence reportedly involved repeated blows to his wife’s head. He had been involuntarily committed for this violent and bizarre behavior and was released the day before the attack on Marker. He was taking medication as part of his treatment and had filled a prescription at the Drug Emporium adjacent to the SPF store the day before the attack.” (Swecker, 13)

Within fifteen minutes of her call to Schopfer, Mrs. Marker lay in the back of the store in a pool of blood. When questioned in the following weeks, Lamoureux could not remember where he was that night, “showed significant deception to a polygraph question as to whether he attacked a woman at the SPF” (Swecker, 13). Lamoureux acted in ways that Swecker characterized as suspicious throughout Det. William’s contact with him:

Lamoureux initially lied to investigators about knowing Marker, knowing the location of the SPF store and whether he had ever been in or near the store. He later admitted he may have been in the store but didn’t attack Marker. He also advised Detectives that he attended church for the first time in his life the day after the attack, possibly an indication of remorse, and drove to Charlotte. Detective Williams documented that Lamoureux repeatedly contacted him to inquire about the results of DNA tests on evidence lifted from the crime scene (even though he said he never had physical contact with Marker) and he showed significant deception to a polygraph question as to whether he attacked a woman at the SPF. Finally, he left the Winston-Salem area for good after being asked by Detective Williams to submit to further questions. (Swecker, 13)

Despite ample evidence of motive, past behavior, and opportunity, Det. Williams, by his own account ( Williams testimony before W-S City Council, 70-76; Swecker, 34) dropped Lamoureux as a suspect once he left town. Of the investigation Lamourweux as a suspect, Swecker concludes:

Inexplicably, numerous leads regarding Lamoureux were never pursued, such as obtaining his work records, his credit card records, full phone records and especially examining his work vehicle, a white van he may have driven on the day of the attack. This van generally matched the description of a white van seen outside the SPF near the time of the attack driven by a man who matched the general age and physical description of Lamoureux. It is unexplained why the work vehicle was never located or processed for evidence. Additionally, although Detectives searched his residence, they failed to seize or test the clothing Lamoureux told them he was wearing the day and evening Jill Marker was attacked or a heavy flashlight he later told a reporter he had used to club people when he was a paramedic. No effort was documented to retrieve video tape from the Best Buy store where he made purchases on the afternoon of December 9, 1995, to see what clothing he may have been wearing on that day and to document his movements and timeline his activities. There is no rational explanation for not pursuing him further as a suspect other than that it became more difficult after Lamoureux “lawyered up” and departed the area. (Swecker, 13-14)