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Attorneys for man convicted in beating file petition with Supreme Court

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WINSTON-SALEM, N.C. — Attorneys for Kalvin Michael Smith, convicted in the 1995 beating of a manager at the former Silk Plant Forest store, filed a petition asking the U.S. Supreme Court to review his case.

The Winston-Salem Journal reported that the petition was filed Thursday by James Coleman, one of Smith’s attorneys and the head of the Duke Innocence Project. The Duke Innocence Project has been investigating Smith’s claims of innocence for several years.

Smith, 42, is serving up to 29 years in prison for the beating of Jill Marker on Dec. 9, 1995. The assault left Marker with traumatic brain injuries. She now lives in Ohio under 24-hour care.

Smith has maintained his innocence, and his 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. The Winston-Salem Journal published a series of stories in 2004 raising questions about the police investigation and the prosecution.

The petition to the U.S. Supreme Court comes several months after the 4th Circuit of the U.S. Court of Appeals upheld a decision by U.S. District Judge Catherine Eagles, who denied Smith’s federal appeal. Eagles ruled that Smith had failed to comply with the one-year deadline required for prisoners who want to appeal their convictions in federal court.

Smith’s attorneys have argued in court papers that prosecutors failed to turn over favorable evidence that could have made a difference at Smith’s trial. That includes part of a videotaped interview in which Don Williams, who was lead detective in the case, showed Marker photo lineups.

The video is important, according to Smith’s attorneys, because Marker did not identify Smith during that interview. Marker identified Smith in a second interview that was not videotaped. A critical issue in the case is the reliability of Marker’s identification of Smith given her brain injuries at the time.

Also at issue is a video from the Toys“R”Us store next to Silk Plant Forest. Smith’s attorneys argue that the video did not become relevant until after the testimony of Eugene Littlejohn, who testified that he went to the Toys“R”Us store and that Smith came into the store as Littlejohn was leaving. Littlejohn had also testified at trial that he saw Smith grab Marker, a different version from what he initially told police.

The U.S. Supreme Court will have to decide whether to accept the petition to review the case.