A Faulty Trial Record

Faulty TestimonyImpeached TestimonyKalvin's StatementSwecker on Trial Record

According to F.B.I. Director Christopher Swecker, in his legal review (2012), “There is general consensus from the various reviews that there were many deviations from policy and procedure in the SPF investigation. There is not agreement as to the materiality of those violations and whether they negatively impacted the outcome of the prosecution. Close review of the extensive record of this case reveals, however, that the mistakes, procedural violations, lost evidence, unsound practices and possibly untrue testimony in multiple legal proceedings cast doubt on crucial evidence that ultimately formed the basis for the trial jury’s conviction of Smith and, at minimum, inhibited a vigorous defense and challenge to the prosecution’s case. Detective Williams was not up to the complex assignment he was given as lead investigator and was not adequately supported or supervised, which had the effect of enabling the shoddy investigative techniques and errors described herein.” (Swecker, 8)

“The most compelling examples of this include two of the most important items of evidence presented in the trial of Smith: the testimony of Eugene Littlejohn and the in court identification by Jill Marker of Smith as her attacker. Unfortunately these are two areas that were significantly impacted by the procedural violations.“ (Swecker, 8)

The following table summarizes the testimony of Littlejohn and Mrs. Marker at trial and quotes or paraphrases of Swecker’s analysis of these two pieces of evidence, critical for Smith’s conviction. Material from other sources will be noted in parentheses.

Testimony of Eugene Littlejohn

Testimony at Trial Swecker’s Analysis
Eugene Littlejohn testified that he was briefly present in the SPF with KMS on 12/9/1995 when Smith grabbed Marker and demanded money (Swecker, 10); also said both he and Smith entered the Toys-R-Us store after leaving the SPF; he saw no weapon, blood or money on Smith when they met in the car they came in; he admitted he had given 4-5 different statements and they couldn’t all be true; he admitted that he told a private investigator, “I’ve never been in Silk Plant Forest. I know nothing about this.” Littlejohn also testified that Detective Williams threatened him with a 42-year sentence, if he didn’t “cooperate” (State v. Smith Trial Transcript, 329-352)

Notes:

The jury asked to review Littlejohn’s testimony; Judge McHugh granted the request and provided a transcript. (Zerwick, 4)

Littlejohn recanted this testimony in the 2009 Motion for Appropriate Relief Hearing (See Transcript of Hearing on Second Motion for Appropriate Relief, Vol. I, 186, 157)

“Scant evidence exists to corroborate Littlejohn’s testimony, but there is plenty of evidence that he was coached by the lead investigator as to important details.”

“Littlejohn’s trial testimony was the seventh version of events and each differed in some meaningful detail.”

“Littlejohn did not reveal accurate information about the date, time, and details of the attack, including a description of the person attacked.”

“Over the course of interviews with Littlejohn, Det. Williams provided Littlejohn with 20 pertinent details.”

“A vital piece of evidence—a Toys R US surveillance video—that could have confirmed or impeached Littlejohn’s testimony was never logged into evidence or preserved.”

“Although after he signed a pre-trial statement that he was present with Smith at SPF when Marker was robbed, he scored as truthful when he stated, that same day, that he was not present when she was robbed. Freddie Reyes, present according to Littlejohn when Smith allegedly made a self-incriminating statement, stated that Smith denied any involvement. Reyes was either not interviewed until a week before trial or his earlier interview was not documented.”

“Though Littlejohn admitted a role not much different of that he claimed for Smith, he was never charged with even being an accessory.” (Swecker, 10-11)

In-court identification of Smith by Jill Marker

In-Court “Equivocal” Identification of Smith Swecker’s Analysis
Marker, having suffered serious brain damage from the assault, was confined to a wheelchair and could not speak, see well, or respond by speech. When asked if Smith was the person who attacked her, she made head motions, that had to be interpreted by the members of the court, including the jury. She was wheeled within 6 feet of KMS and made a motion her father interpreted as her wanting to write something. On the laptop whiteboard provided, she wrote something the prosecutor could not understand; her father interpreted it to mean “I was.” Subsequently, the prosecutor asked, again, if Smith she saw in the courtroom was the person who attacked her, she shook her head up and down. (State v. Smith Trial Transcript, 353-357)

Notes:

Twenty minutes into their deliberations, the jury asked to see a video of JM’s identification again; Judge McHugh refused this request (Zerwick, 4)

In a later interview, the trial judge, Peter McHugh characterized her court identification as “equivocal.” (Swecker, 21)

“As a severely handicapped and sympathetic victim [Jill Marker’s] testimony carried great weight and was essentially unchallenged….Such a cross examination would have been further complicated by her inability to speak and her writing proved to be undecipherable. The manner in which her pretrial interviews were handled when examined in their entirety raises serious doubts as to whether her unchallenged in court identification was the result of independent recollection or conscious or unconscious manipulation in two pretrial interview sessions, and multiple photo lineups displayed to her that were never documented, not to mention the media reports, undocumented contacts and “updates” Williams provided the family in which he provided details of the investigation and suspects.” (Swecker, 9)

Pre-Trial Interviews:

October 31, 1996

Swecker notes that this interview was videotaped because of Marker’s “inability to talk and express herself, except by head movements….” (Swecker, 10) Disagreeing with Det. Williams’ Supplemental Report stating that Marker was “very responsive to questions asked”, Swecker observed that “Marker could not speak, appeared to have poor vision and her responses, in the form of head movements were usually ambiguous because her head was in constant motion up and down and side to side.” In his view, “Detective Williams repeated questions until he perceived the head movement he was seeking and recorded the answer accordingly.” (Swecker, 9) In addition, Swecker notes that Williams violated WSPD policy by showing photo lineups without documenting them [in written reports]. Finally, the Silk Plant Forest Citizens Review Committee determined that “photos of Kalvin Michael Smith were displayed and Jill Marker did not identify him as her attacker, a crucial fact that was not documented. A close review of the interview videotape also revealed that Jill Marker may have identified Kenneth Lamoureux as a person who was present in the store the night Marker was attacked, another important piece of evidence that was not documented.” (Swecker, 10)

September 4, 1997

A second interview with Mrs. Marker by Dets. Willliams and Lonnie Maines was not videotaped “despite the fact that Marker still could not talk and reportedly still communicated primarily by head movements and hand gestures.”

Detective Williams reported that Marker reacted strongly to a photo of Smith in a first showing of a lineup including an enlarged picture of Kalvin Michael Smith, “but unlike the first interview of Marker there is no videotape to evaluate, refute or corroborate this statement.” Swecker observes, The failure to video record this interview (if indeed it was never video recorded) is inconsistent with the rationale used for the first interview to be videotaped i.e. that Marker could not speak and could only provide nonverbal responses.” (Swecker, 10)

Swecker concludes that the fact that Williams attempted (unsuccessfully) to have Marker identify Smith a second time that day, indicates “that Williams considered the results of the first lineup ambiguous.” (Swecker, 10)

Note: The Silk Plant Forest Citizens Review Committee concluded that Marker never identified Smith in either of the pre-trial interviews. (SPFCRC, 29-30; 32)

Trial Identification

“By the date of the trial, Jill Marker had been exposed to no less than three photos of Smith…. Repeated photo lineups containing the same photos sends a clear non-verbal signal to a witness that the suspect’s photo is indeed contained in that lineup and that the witness is expected to make an identification of someone in that particular lineup…It is unknown whether Marker viewed newspaper photos of Smith before the second photo lineup session and after he was arrested because this question was either never asked or it was asked but not documented. Williams would later brag to a reporter that there were many aspects of the SPF investigation that he did not document in order to deny the defense an opportunity to ‘take it off Kalvin.’”
(Swecker, 10; Zerwick, Part 3; See the SPFCRC, 34, notes that Williams has either denied that he said this or that Zerwick took it out of context. )

Andra Wilson, Pamela Moore and Eugene Littlejohn claimed that Smith Admitted Assaulting Ms. Marker

Testimony at Trial Swecker’s Analysis
Three witnesses (Andra Wilson, Pamela Moore, Eugene Littlejohn) claimed to have heard KMS admit to “beating” Jill Marker (Freddie Reyes was also present but presents a different version of events: Reyes did not testify at trial) “Pamela Moore and Andra Wilson made statements that Smith said ‘I had to beat the bitch to get out of the store.’ This statement does not square with the facts as Marker was attacked in the back of the store making it highly unlikely that she was trying to prevent her attacker from leaving the store. Moreover it makes no sense that Marker would attempt to prevent an aggressive male attacker/robber with a weapon from leaving the store.” (Swecker, 12, n. 18)

Freddie Reyes, present in the apartment when Smith allegedly made the admission, signed a statement that contradicted Wilson, Moore and Littlejohn stating that Smith, in fact, denied any involvement. Swecker observes, “The failure to interview Reyes is notable. If this exculpatory witness, Reyes, was not interviewed during the same time period as other trial witnesses Littlejohn, Pamela Moore and Valerie Williams who were supposedly present for the same incriminating conversation, it would have to have been either a grossly negligent oversight or concealment of potentially exculpatory evidence that directly contradicted the State’s key witnesses.” (Swecker, 11) [Note: Reyes’ statement was not taken until Nov. 26, 1997; it was not turned over to the defense until 9:56 am December 1, 1997, four minutes before the trial began; Reyes was not called to testify at trial and his statement was never admitted into evidence. (See “Statement of Freddie Reyes” CR # 508102)

Moore and Littlejohn recanted their testimony in the 2009 Motion for Appropriate Relief Hearing (See Transcript of Hearing on Second Motion for Appropriate Relief, Vol. I, 186, 157)

Swecker asserts, “Wilson’s reliability as a witness had to be dubious to Detective Williams after Smith passed a polygraph following Detective Williams’ arrest of Smith (June 22, 1996), and after Jill Marker failed to pick Smith out of a line-up (October 31, 1996.) Jealous of Smith’s attention to Valerie Williams, Wilson had called Crime Stoppers June 1996 implicating Smith in the assault.” (Swecker, 13-14)

Kalvin Michael Smith provided a statement, not a confession, that Smith has always claimed was the result of threats of prosecution, that contains elements incredible to any reasonable person, and that was not introduced at trial.

Director Swecker on the Context of the Statement

Detective Williams apparently eliminated Smith as a suspect earlier in the investigation after Smith passed a polygraph test (on July 22, 1996). There was no further investigation of Smith except for Smith’s inclusion in four photo-lineups shown to victim Jill Marker on October 31, 1996. Although Jill Marker did not identify Smith at that time, nothing about any attempt to make identification or the construction of photo-lineups was documented….”

When Smith learned that Detective Williams was looking for him in January, 1997 he immediately and voluntarily presented himself at the police station, along with his disgruntled girlfriend, Valerie Williams, to ascertain why he was being sought again in a case in which he thought he had been cleared. Valerie Williams would later state that she was upset that Smith had cheated on her with an employee of the Sheriff’s department whom he had met in the County jail…. By her own admission at the time, Valerie Williams contacted the WSPD in order to get even with Smith, an idea she said she got from Smith who told her that another girlfriend (Andra Wilson) had successfully employed the same tactic against him months earlier.” (Swecker, 14)

Smith’s Motivation for Writing the Statement

Swecker observes,

“Unlike Lamoureux and Fuller, Smith did not ‘lawyer up’ and submitted to a stationhouse interrogation by Williams and his supervisor Randy Weavil that ultimately culminated in his arrest. Smith, who dropped out of high school, lacked the education to defend himself and the means to hire a lawyer, has maintained to this day that Williams informed him that if he would just admit he was present at the SPF store when Marker was attacked that he would be released.” (Swecker, 15)

Smith testified at the 2009 M.A.R. Hearing that he wrote the statement, because Detective D.R. Williams informed him that, if he admitted to being present–not to assaulting Marker–he and his girlfriend, Valerie Williams, would be released immediately.; however, if he did not write the statement, both he and Valerie would be arrested–he for the assault of Mrs. Marker, she for obstruction of justice.

Williams and Weavil testified in a pre-trial hearing that no threats or promises were made to Smith and the judge ruled that the statement was admissible, though it was not entered into evidence at the 1997 trial. However, Phoebe Zerwick reports that Williams admitted to her in 2004, “You don’t threaten them, but you have to use tactics. ‘You’re going to be in trouble. There may be enough to indict you if you don’t give me information.’ I told her, ‘You and Kalvin need to come down to the police department. It’s for your own benefit.’” Williams added, “They came down the next day. That was a bad mistake for them.” (Zerwick, 3)

Who Wrote the Statement?

Swecker writes,

“…Detective Sergeant Randy Weavil swore in a pretrial hearing and again more than ten years later in an evidentiary hearing on Smith’s Second MAR that he personally hand wrote Smith’s interrogation statement dated January 24, 1997. A handwriting expert hired by the SPF Citizen’s Review Committee proved during the SPF Citizens Review Committee investigation that Smith [as he has always claimed] had penned the statement, not Weavil despite his detailed testimony to the contrary.” (Swecker, 3; See the Silk Plant Forest Citizens Review Committee Report, 2009, 36)

The Content of the Statement

KMS StatementOn January 24, 1997, Kalvin Michael Smith wrote and signed a statement saying he walked from Waughtown Street to Silas Creek Crossing; he met a James Burrows and smoked a joint; Burrows went to SPF for change; Smith said he was inside the store, and ran out when Burrows swung at Marker at the cash register and hit her; Smith walked to Maxway, stayed for 5 minutes, then walked to 3F Skyline Village (Andra Wilson’s apartment);

Several minutes later Det. Williams returned and had Smith write an addendum saying that he saw Burrows chase Marker to the back of the store (Note: Smith’s first statement got a key detail wrong; Marker was found at the back of the store not at the front—the location of the cash register.)

Problems With the Statement

  • Even on its face, the statement is not a confession by Smith that he robbed and assaulted Marker, only that he was present as “James Burrows” entered the store with an intent to rob it. At Smith’s trial, this is exactly what Eugene Littlejohn testified that Littlejohn did that night. Det. Williams also characterized Littlejohn’s statement a “confession.” (See Swecker, 19, n. 27) Evidently the District Attorney did not. Littlejohn was never indicted for the role he testified to at trial.
    Smith said that he wrote down what Williams told him to say, adding elements of his own that made the statement sound incredible–and incredible they seem:

    • Smith walked from Waughtown Street, to Silas Creek Crossing (c. 6.4 miles), and, then, afterwards to Maxway (c. 9.2 miles) where he stayed for 5 minutes; then, he walked to 3F Skyline Village (6.2 miles) to the apartment of Andra Wilson (a total of 21.8 miles; See below for map of purported route). Wilson has repeatedly said he could not have walked to her apartment, because she didn’t even meet Smith until three weeks after Marker’s assault. (Zerwick, 3).
    • Smith met a “James Burrows” and went with him to the SPF store. The WSPD never identified this person; Smith testified that he created the initials J.B. when Williams demanded a name for the person he told Smith to write that he met. J.B. stood for James Brown, a song of whose Smith heard on his Walkman on the way to the police department. When Williams said he couldn’t write James Brown, he wrote James Burrows.
  • Officials of the Winston-Salem Police Department, the NC Attorney General’s Office, and even as recently as 2013, a federal judge have called this statement as a “confession”a characterization that, when repeated by the media can be misconstrued by the public as an admission by Smith that he robbed and assaulted Marker. He never has made such an admission.
  • Ironically, these representatives of the state have adopted the terminology apparently regularly used by Det. Williams. Swecker writes, “According to Assistant District Attorney Vince Rabil, Detective Williams had a reputation of being prone to overstating the results of interrogations. Rabil stated that Williams was known to create supplemental reports that characterized statements as “confessions” when in fact such a characterization was not supported by the actual transcripts. According to Rabil among the Assistant District Attorneys such circumstances were known as ‘D.R. Williams confessions’”. (Swecker, 19; See also SPFCRC, 35)
  • Though ruled admissible, the statement was not introduced at trial and Det. D.R. Williams, who took the statement, was not called to testify. Since his attorney chose not to call defense witnesses, Smith also did not testify at the 1997 trial. Representatives of the attorney general’s office have argued in appeals and federal court that, even if other evidence was questionable, this “confession” constitutes additional inculpatory evidence that could have been introduced at the original trial to support Smith’s conviction. One could, however, conclude that the introduction of the statement and Det. Williams as a witness at trial would have caused more problems for the state than for the defense.
  • The Silk Plant Forest Citizens Review Committee, 40, concluded that there was “no credible evidence” that Smith was at the SPF store on the night of Marker’s assault, thus dismissing this statement as credible.

…only a new trial that considers the full record and evidence not available, misrepresented or omitted in the original trial will provide the full measure of justice the Community of Winston-Salem and every accused defendant deserves.

Swecker concludes his legal review of the Silk Plant Forest investigation and judicial process by saying, “The sum total of the record paints a very disturbing picture. This review found that relevant and material facts were not known at the time of the original investigation and trial conducted over 15 years ago, while other important information was undocumented or inadequately reported. 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, 15)

Further, Swecker states, “…nothing in this report should be interpreted as critical of the original jury, their verdict or the court system. The jury discharged their duty faithfully and rendered a decision based on the evidence that was presented to them. Unfortunately, the very limited and flawed record created by that trial has provided the framework for subsequent legal proceedings.” In addition, Swecker observes, “There is a significant amount of information, however, that the trial jury and trial judge did not see and unfortunately some of the original record is based on inaccurate or incomplete information. The full record tells a more complete story of the Silk Plant Forest investigation. Some of this evidence/information was not developed by the original investigation and hence was not known during the original trial.” (Swecker, 2-3)

“With its checks, balances, separation of powers and constitutional guarantees the United States Criminal Justice System is the best in the world. Even so, there is no guarantee of a perfect result. The effective operation of this complex ecosystem depends on each component: the police, the prosecutor, the defense bar and the courts, discharging their responsibilities to the utmost. If any component of the system breaks down a miscarriage of justice can result. The ultimate goal of the Justice system is to seek the truth. Under our legal system however tremendous discretion is invested in law enforcement agencies and the individual investigator in this search for the truth.

Prosecutors, as officers of the court, are important parts of the checks and balances built into the system. In North Carolina the District Attorneys and their staffs play a unique role in an investigation as they are ultimately responsible for making prosecution decisions and presenting the evidence gathered by investigators. While the best practice is for law enforcement officers to consult prosecutors at crucial stages of the investigation such as the conduct of lineups, arrests, and the issuance of search warrants, this did not often occur in the SPF investigation. In the SPF case the District Attorney’s Office was essentially presented with a completed investigation, with many key actions and omissions taking place after Smith’s arrest. The District Attorney’s Office was uninvolved with the decision to arrest Smith. This analysis concludes that in the SPF investigation there were many instances where techniques or practices were utilized that were procedurally unsound, not appropriate for the circumstances and/or served to effectively obscure the quest for credible evidence as to who actually committed the assault on Jill Marker. The Prosecutor(s) had few opportunities to serve as an objective third party to review these techniques and when the case was presented for prosecution missed those opportunities to do so despite certain “red flags” that were raised concerning the lead Detective’s reports and characterization of evidence.” (Swecker, 5-6)

Finally, Director Swecker declares “It is the opinion of this reviewer 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 trial will provide the full measure of justice the Community of Winston-Salem and every accused defendant deserves.” (Swecker, 17)