Former Winston-Salem police officer disavows disputed affidavit

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FILE PHOTO: Joshua Mack, 21, holds a life-size poster of Kalvin Michael Smith during a rally in Raleigh. (Journal photo by Bertrand M Gutierrez.)

WINSTON-SALEM, N.C. — A former Winston-Salem police officer has disavowed a 2008 affidavit in which she said that Jill Marker told her a black man attacked her at the Silk Plant Forest store on Dec. 9, 1995, even though the officer wrote in her incident report that Marker was incoherent and unable to describe her assailant.

Attorneys for Kalvin Michael Smith, who is black and was convicted in Marker’s attack, have alleged that Forsyth County prosecutors used the sworn affidavit by Arnita Miles, one of the first officers to talk to Marker the night of the attack, to undercut Smith’s claims of innocence.

The affidavit is significant because Winston-Salem detectives initially focused on Kenneth Lamoureux, a white man with a history of violence who witnesses say was at the store that night.

Miles’ disavowal of her 2008 affidavit comes out of a Sept. 26, 2012, interview she had with James Coleman and Jamie Lau of Duke University Law School’s Wrongful Convictions Clinic. The interview raises this question: If Miles says that Marker couldn’t identify her attacker and that her written report indicates the same thing, then why does a sworn affidavit that Miles signed say something completely different?

Forsyth County District Attorney Jim O’Neill declined to comment Wednesday because Smith is taking his case to the U.S. Court of Appeals for the Fourth Circuit after losing an appeal in U.S. District Court in July.

Forsyth County prosecutors declared a conflict of interest in 2008 as Smith was appealing his case in Forsyth Superior Court. The N.C. Attorney General’s Office is now defending Smith’s conviction and has denied allegations that Forsyth County prosecutors improperly obtained the affidavit. State prosecutors have also argued that the affidavit was never presented as evidence in any court proceeding.

According to a transcript of the interview that was filed in Forsyth Superior Court this month, Miles says several things:

Marker was unable to describe her attacker.

In January 2008, Assistant District Attorney David Hall called Miles twice to ask about the case and during one of the conversations, asked her about a black male.

“He asked me that question about the black male because when I talked to him, I told him that she couldn’t identify the person that attacked her and he said, ‘Well, would you go with what’s written in your report, or would you go with what’s in your memory?’” Miles told Coleman and Lau.

“‘I would go — honestly, I would go with what’s written in the report,’” Miles said.

Hall later sent her a draft of the affidavit and Miles said she likely signed the affidavit, thinking that what was in the affidavit reflected what she wrote in her report.

Hall, who is now a Forsyth Superior Court judge, said Wednesday the rules of judicial conduct prevent him from commenting on a pending legal matter.

Despite what’s written in her affidavit, Miles insisted during the interview that Marker, who was pregnant when she was attacked, never asked Miles to write a letter to her husband, Aaron Marker. Miles said she wrote the letter on her own that night and later gave it to the lead detective, Don Williams. The letter, however, is dated April 30, 1996, and congratulates Aaron Marker on the birth of his son. Jill Marker had given birth while in a coma.

Miles said she was surprised at the date on the letter and said she was sure she wrote the letter the night of Marker’s attack because she wanted to remember everything that Marker had told her about her husband and her then-unborn child.

Miles has given conflicting statements. In an interview with Scott Williams, an agent with the State Bureau of Investigation, she said she was “100 percent” sure that Marker had identified her assailant as a black male and was surprised when Williams told her that her written report didn’t indicate that. Miles said she would have put that in her report had Marker said that.

When she talked to a detective assisting the Silk Plant Forest Citizens Review Committee, she said her memory might not be correct and that committee members should rely on her written reports.

When reached by phone Wednesday, Miles said she didn’t want to comment on her interview or about the case.

Affidavit used to obstruct justice?

Miles’ 2008 affidavit is at the center of allegations from Smith’s attorneys that Forsyth County prosecutors have tried to undermine Smith’s claims of innocence outside of court, even though they declared a conflict of interest in the case.

The affidavit was obtained in March 2008, two months after Miles contacted Theresa Newman, the co-director of Duke’s Wrongful Convictions Clinic and one of Smith’s attorneys. She told Newman in a Jan. 22, 2008, email that Marker had identified her attacker as a black male, that the case had haunted her and that Marker had asked her to write a letter to her husband, Aaron Marker.

Newman contacted Hall, who vouched for Miles’ reliability in an email the next day. On March 4, 2008, Hall wrote David Pishko, also Smith’s attorney, and said that Jill Marker had consistently described her attacker as a black male and accused the Duke Innocence Project, which had been investigating the case, of not being interested in interviewing Miles.

If Miles’ report is accurate, then the earliest that Marker seemed to identify her assailant as a black male would have been Oct. 31, 1996, though Smith’s attorneys have questioned whether Marker would have been able to make any kind of positive identification of her attacker because of her brain injuries.

In December 2008, then-Forsyth County District Attorney Tom Keith wrote Guy Blynn, the chairman of the Silk Plant Forest Citizens Review Committee, which was reviewing the police investigation of Marker’s attack, and mistakenly asked why the committee had not interviewed Miles. (The committee had interviewed Miles.) Keith said that while rules of professional conduct prevented him from saying why Miles’ information was important, the two detectives assisting the committee did know the “significance of her observations.”

Finally, in July 2012, O’Neill referenced the affidavit in an email to Mark Rabil, director of Wake Forest Law School’s Innocence and Justice Clinic, and Chris Swecker, a former FBI assistant director. Swecker had just released a report criticizing the police investigation of Marker’s attack and concluding that Smith should have a new trial.

He said he is holding a sworn affidavit by Miles and accused the Duke Innocence Project of not being interested in what Miles had to say after Miles had contacted Duke.

“Despite this evidence, the Duke Innocent (sic) Project continued to parade the name of Kenneth Lamoreaux (sic) as the person who likely committed this crime, knowing full well that Jill Marker said her attacker was a black man,” O’Neill said in the email, according to a motion filed by Smith’s attorneys.

Prosecutors say claims ‘baseless’

O’Neill declined to comment last week about what Miles said in the transcript.

“Unfortunately, while I would welcome the opportunity to share my thoughts on this case, the Rules of Professional Conduct and Responsibility prohibit me from commenting publicly,” he said Wednesday in an email.

But in court documents, state prosecutors for the N.C. Attorney General’s Office have denied any misconduct by the Forsyth County District Attorney’s Office, though they haven’t directly dealt with whether the affidavit is false.

“Defendant further maintains that the State’s election not to use the affidavit in its post conviction response to Defendant’s meritless contentions somehow evidences acknowledgement that the affidavit is false,” state prosecutors Danielle Marquis Elder and Mary Carla Hollis write in court papers. “This is a baseless claim, but not one which the Court needs to resolve. The Court does not need to resolve any issue regarding the veracity of the statements contained in Arnita Miles’ unfiled affidavit.”

They also argue that his appeal in Forsyth Superior Court was denied based on alleged statements that Smith made admitting involvement, not on Marker’s identification of her assailant.

Smith made a statement to police that he was at the store but that he did not beat Marker. He said that a man he knew named James Barrows beat Marker. Smith has since said he made up the name and that police coerced him into making the statement.

Miles said in September 2012 that if she were presented with the affidavit today, she wouldn’t sign it because it doesn’t reflect what Marker told her the night of the attack.

“Oh goodness. You know… there’s no way in the world that any statements that I would make … I would never want them to convict somebody that, you know, didn’t do the crime or whatever,” she said.

By Michael Hewlett/Winston-Salem Journal

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