Prosecutors ask judge to dismiss motion in Smith case

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

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

WINSTON-SALEM, N.C. — Prosecutors in the N.C. Attorney General’s Office want a judge to dismiss a motion alleging that Forsyth County prosecutors used a 2008 affidavit by a former Winston-Salem police officer to undermine Kalvin Michael Smith’s claim of innocence.

Smith, 42, is serving 23 to 29 years in prison on charges that he assaulted Jill Marker, a manager of the Silk Plant Forest store, on Dec. 9, 1995, leaving Marker with severe brain injuries.

The motion has been pending in Forsyth Superior Court for more than a year, and Smith’s attorneys last month asked Judge William Z. Wood of Forsyth Superior Court for a preliminary hearing to discuss the motion and a proposed schedule to exchange evidence. Prosecutors argued in court documents filed Wednesday that because the U.S. Court of Appeals for the 4 th Circuit in Richmond, Va., denied Smith’s appeal in February, the motion becomes a moot point.

“Other than speculation, Defendant has produced nothing to justify the fishing expedition which he asks this court in compelling discovery,” Danielle Marquis Elder, special deputy attorney general, wrote in court papers.

Theresa Newman and David Pishko, Smith’s attorneys, disagree, according to court documents they filed April 8.

“The State has made clear that it does not consider the procurement and use of a materially false affidavit to undermine Mr. Smith’s claim of innocence to be a big deal,” they argue in court documents. “The District Attorney (Jim O’Neill) was dismissive of the challenge to the use of the affidavit by his Office and by himself, calling Mr. Smith’s concerns ‘silly’ and ‘trying to make a mountain out of a mole hill.’ That attitude is extraordinary; even without this motion, one would expect the state to treat procurement and use of a false affidavit as serious matters, calling into question the integrity of those responsible.”

In a letter sent Wednesday to Wood, James Coleman, who also represents Smith and is head of Duke University Law School’s Innocence Project, said Smith’s attorneys plan to file a petition asking the U.S. Supreme Court to review the case.

O’Neill has said that the rules of professional responsibility prevent him from commenting on pending litigation.

The motion in question centers on a 2008 affidavit signed by former Winston-Salem police officer Arnita Miles. In the affidavit, Miles, one of the first officers to talk with Marker the night of the attack, says that Marker identified her attacker as a black male. But in her incident report, Miles said that Marker was incoherent and unable to give a description of her attacker. She disavowed the 2008 affidavit in an interview in 2012 with Coleman and Jamie Lau of Duke University Law School’s Wrongful Convictions Clinic.

Smith is black and Winston-Salem police detectives initially focused their investigation on Kenneth Lamoureux, a white man with a history of violence who witnesses say was in the store the night of the attack. The affidavit was never used in a court proceeding involving Smith, and Lamoureux died in March 2011.

Smith’s case has become the most prominent allegation of wrongful conviction in Winston-Salem since the Darryl Hunt case. Hunt was freed in 2003 and then exonerated the next year in the 1984 murder of Deborah Sykes, a copy editor for The Sentinel, an afternoon newspaper that closed in 1985. A DNA test led law enforcement to another man, who confessed to the crime.

Smith’s attorneys filed a motion in February 2013 in Forsyth Superior Court asking that a 2009 decision by Judge Richard Doughton to deny Smith’s appeal in Forsyth Superior Court based on Miles’ 2008 affidavit be vacated because the affidavit is false.

The motion included emails and correspondence from O’Neill; former Assistant District Attorney David Hall, now a Forsyth Superior Court judge; and Tom Keith, a former Forsyth County district attorney. Pishko and Newman argue that the correspondence and emails show prosecutors used the affidavit as a way to bolster their argument that Smith was guilty and that Marker had always identified her attacker as a black male.

Marker’s identification of Smith as her assailant has been one of the central disputes in the case. Smith’s attorneys have questioned whether Marker identified Smith, given her severe brain injuries.

In one of the emails, O’Neill accuses the Duke Innocence Project, which has investigated the case, of withholding Miles’ affidavit and parading the name of Lamoureux as the person who likely assaulted Marker, “knowing full well that Jill Marker said her attacker was a black man,” according to the motion.

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