Attorneys for Kalvin Michael Smith are accusing Forsyth County prosecutors of using what they say was a false 2008 affidavit by a former Winston-Salem police officer to undercut Smith’s claims of innocence.
In a motion filed Friday, David Pishko, Smith’s attorney, and Theresa Newman, co-director of the Wrongful Conviction Clinic at Duke University School of Law, say the affidavit by Arnita Miles is “plainly and demonstra-bly false.”
Miles, one of the first police officers to talk to Jill Marker on the night of her 1995 attack at the Silk Plant Forest store, says that Marker identified her attacker as a black male. But Miles never mentions that in her incident report, instead describing Marker as incoherent and unable to give a description of her attacker.
The affidavit is significant because 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 on the night of the attack on Dec. 9, 1995. The affidavit was never used in any court proceeding involving Smith, and Lamoureux died in March 2011.
Smith was convicted in 1997 in connection with Marker’s assault and is serving 23 to 29 years in prison. The at-tack left Marker with severe brain injuries and needing 24-hour care. She was pregnant at the time of the attack and delivered a son while in a coma.
Miles, who could not be reached for comment Monday, told an SBI agent that she was “100 percent” certain that Marker had identified her assailant as a black male. When she talked with a detective assisting the Silk Plant Forest Citizens Review Committee, she said that her memory might not be correct and that committee members should rely on her written police reports. She said she could not explain why she did not include Marker’s descrip-tion of her assailant in her police reports. She said if Marker had told her that the assailant was a black male, she would have included that in her written reports.
Pishko and Newman argue in the motion that Forsyth County prosecutors obtained the affidavit as they were preparing to fight Smith’s appeal in Forsyth Superior Court and continued to intervene in the Smith case even after they had declared a conflict of interest and had the N.C. Attorney General’s Office handle Smith’s appeal.
Smith’s attorneys are not only asking for an evidentiary hearing but are also seeking discovery, including tele-phone records from the Forsyth County District Attorney’s Office and email correspondence between local prose-cutors and the N.C. Attorney General’s Office.
The motion filed Friday includes emails from former Assistant District Attorney David Hall, who is now a For-syth Superior Court judge, Tom Keith, former Forsyth County district attorney, and O’Neill. The emails all show, Pishko and Newman argue, that prosecutors used the affidavit as a way to bolster their argument that Smith was guilty and that Marker had identified her attacker consistently as a black male.
In a 2012 email to Mark Rabil, director of Wake Forest Law School’s Innocence and Justice Clinic, and Chris Swecker, a former FBI assistant director, O’Neill accuses the Duke Innocence Project of withholding Miles’ affi-davit. Swecker had recently released a report that concluded the police investigation into Marker’s beating was botched and that Smith deserved a new trial.
“Despite this evidence, the Duke Innocence Project continued to parade the name of Kenneth Lamoureux as the person who likely committed this crime, knowing full well that Jill Marker said her attacker was a black man,” O’Neill says in the email, according to the motion.
O’Neill said Monday that the rules of professional responsibility prevent him from commenting on pending liti-gation. But he has said in the past that his office did nothing wrong and that it would be nefarious to suggest oth-erwise. Hall could not be reached for comment. Keith said that he had not read the motion but noted that the Attor-ney General’s Office never used the affidavit in Smith’s appeal. He said he does not see how the affidavit is rele-vant.
The motion also cites a 2008 email that Hall sent to Pishko, vouching for Miles and saying that the record clearly demonstrated that “Jill Marker has consistently identified her assailant as a black male.”
The motion also cites a letter that Keith, who retired as district attorney in 2009, sent to Guy Blynn, the chair-man of the Silk Plant Forest Citizens Review Committee, which eventually concluded that it had no confidence in the police investigation.
“While the strictures of Ethical Rules 3.6 and 3.8 prohibit me from disclosing the import of her information in this letter, both Lt. (Joseph) Ferrelli and Sgt. (Chuck) Byrom know the significance of her observations,” he said in the letter.