FEBRUARY 6, 2016 7:46 PM
NC State Bar dismisses complaints against prosecutors in racially divisive case
Duke law professor says prosecutors used ‘false’ affidavit to discredit his client
Records show victim in Winston-Salem case never identified assailant as a black male
Prosecutors, including candidate for attorney general, are silent
BY JOSEPH NEFF
For most of 2015, the North Carolina State Bar vigorously and publicly pressed ethics charges against two anti-death penalty lawyers for what were eventually judged to be unimportant inaccuracies in two sworn affidavits.
During the same time, the bar privately dismissed complaints that three prominent prosecutors – one running for attorney general, another now a Superior Court judge – used a false affidavit in a racially divisive case that has roiled Winston-Salem for more than a decade.
Former Forsyth County assistant district attorney David Hall, now a Superior Court judge. Kalvin Michael Smith listens to testimony in January 2009, in the hearing for his request for a retrial of his 1997 conviction in the beating of Jill Marker at the Silk Plant Forest in 1995. Former Forsyth County District Attorney Tom Keith. Forsyth County District Attorney Jim O’Neill in Forsyth Superior Court in 2010. Former Forsyth County assistant district attorney David Hall, now a Superior Court judge. Kalvin Michael Smith listens to testimony in January 2009, in the hearing for his request for a retrial of his 1997 conviction in the beating of Jill Marker at the Silk Plant Forest in 1995.
A city-funded investigation concluded that it had no confidence in the verdict in what is known as the Silk Plant Forest case. So did a veteran FBI agent, who called it the sloppiest investigation he had ever seen, and called the affidavit “ludicrous.”
The State Bar is silent on this case, saying the law prevents them from even acknowledging a complaint was filed.
Duke law professor James Coleman, who filed the complaints, was silent as the bar prosecuted Cassandra Stubbs of the ACLU and Gretchen Engel of the Center for Death Penalty Litigation. But now Coleman is talking about the complaints he filed against the prosecutors. He provided The News & Observer with his correspondence with the state bar, giving a rare glimpse into a closed world.
Coleman said the three Forsyth County prosecutors – former District Attorney Tom Keith, current District Attorney Jim O’Neill, now a candidate for attorney general, and Assistant District Attorney David Hall, now a Superior Court judge – used the affidavits to discredit his client, Kalvin Michael Smith, and impugn Coleman’s integrity and that of his colleagues at the Duke Wrongful Convictions Clinic.
“The decisions are indefensible,” Coleman wrote to the state bar’s Grievance Committee after it dismissed the complaints. “A criminal justice system in which prosecutors are free to procure and secretly use false evidence for any purpose is unlikely to be one in which justice prevails.”
The grievance committee works in secret, much like a grand jury. The public can see the cases where the bar elects to pursue charges but has no insight into the cases that the committee declines to pursue.
“I can’t even confirm that Mr. Coleman filed a grievance,” said Katherine Jean, chief counsel for the State Bar.
The three prosecutors declined to be interviewed. David Freedman, a Winston-Salem defense attorney who defended them before the bar committee, said Coleman’s assertions were wrong.
“The baseless claims of Mr. James Coleman … have been reviewed by and determined to be without merit by two experienced and respected Superior Court Judges, The North Carolina Court of Appeals, a Federal Judge in the Middle District of North Carolina, The Fourth Circuit Court of Appeals and The North Carolina State Bar,” Freedman said in a statement.
Coleman said those judges, courts and State Bar never forced the prosecutors to answer the basic question: How did they use the affidavit?
A divisive case
In December 1995, Jill Marker was five months pregnant and working at Silk Plant Forest, a store that sold artificial plants, when at the close of business an assailant beat her severely, nearly killing her. Marker gave birth months later while still in a coma. Today she is blind, brain-damaged, physically disabled and requires 24-hour care.
For months, Winston-Salem police focused on Kenneth Lamoureux, a white man with a history of domestic violence. Marker had told a friend that Lamoureux became angry when she refused to go on a date with him. Witnesses saw him in the store the night of the attack.
After Lamoureux moved from Winston-Salem, the case detective dropped him as a suspect; he died in 2011. Police finally charged Smith, who was convicted in 1997 and sentenced to 29 years in prison.
Doubts about the case soon spread. The Duke Wrongful Convictions Clinic took up Smith’s case in 2003. In 2004, The Winston-Salem Journal ran a five-part series questioning the handling of the case.
In 2009, the Silk Plant Forest Citizens Review Committee, an investigative body set up by the Winston-Salem City Council, concluded that it had no confidence in the police investigation. In 2012, retired FBI agent Chris Swecker concluded after a 15-month investigation that the police investigation was so flawed and incomplete that Smith deserved a new trial.
“It was the sloppiest investigation I have ever seen,” Swecker said in a recent email.
‘It was false’
The path to Coleman’s complaint began in January 2008, 11 years after Smith’s conviction and as Smith’s lawyers were arguing for a hearing to examine evidence not heard at trial. Duke law professor Theresa Newman, who directs the Duke Wrongful Convictions Clinic along with Coleman, received an email from Arnita Miles, who identified herself as a former Winston-Salem police officer.
Miles said she was the first officer to interview Jill Marker at the store after the assault. According to Miles, Marker said her attacker was a black male. She also said Marker dictated a letter that night, as a last message to her husband, and asked Miles to give it to him. Miles said she passed it on that night to the lead detective.
Newman was surprised. She knew the court and police files contained no references to Marker identifying her attacker as a black male or to a letter dictated that night. She immediately wrote to two of the prosecutors – Keith and Hall – saying that Miles’ claims were odd, even unbelievable.
“There is nothing in the file that indicates that Jill said that,” Newman wrote. “If Jill did say that, it is particularly hard (actually impossible) to understand why the investigation pursued white male suspects for some time before turning to blacks.”
Hall replied the next day, saying he knew Arnita Miles as “a straight shooter” who would make a “VERY reliable witness.”
Because of the push for a new hearing, the SBI assigned an agent to assist prosecutors. Following the emails between Newman and Hall, the agent interviewed Miles. The agent turned up problems which he shared in a report to the prosecutors.
Miles did file a report following the attack. In it, she wrote that she was not the first officer at the scene. She wrote that Marker was incoherent and did not describe her attacker. Miles told the SBI she could not explain the discrepancy between what she wrote in 1995 hours after the assault and her 2008 claims.
The SBI agent also obtained the letter from Miles to Marker’s husband. Miles said she wrote it the night of the attack, but the letter was dated five months later and congratulated Mr. Marker on the birth of his son. It does not mention any details about the assailant.
Hall, the assistant district attorney, used parts of the SBI agent’s report as the foundation for an affidavit to be signed by Miles. The draft affidavit said Marker had identified a black assailant minutes after the attack, but did not mention that the SBI had noted that this contradicted Miles’ 1995 reports. Hall attached the letter to Marker’s husband as an exhibit.
In March 2008, Hall sent Smith’s lawyers an unsigned draft of that affidavit.
Coleman said he ignored the document, knowing the prosecutors could never use it in court: “We had already told Hall it was false.”
They never received a signed and sworn affidavit. Coleman and Newman said they forgot about Arnita Miles for the next four years.
But the affidavit was still in play, as they would find out later.
A prosecutor’s push
In December 2008, a Winston-Salem police detective assigned to the Silk Plant Forest Citizens Review Committee interviewed Miles and confronted her with the contradictions between her 2008 statements and her own records from 1995.
Miles conceded that after all these years, her memory might not be correct. She told the detective they should go by what she wrote in her original report, which said there was no description of the suspect. If Marker had mentioned a black assailant, Miles said she would have put it in the report.
District Attorney Tom Keith apparently didn’t know about that interview, because three days later he wrote to the chairmain of the Silk Plant Forest Citizens Review Committee complaining that “no effort has been made … to interview former Detective Arnita Miles.” Keith wrote that ethical rules prevented him from revealing details but her observations were significant.
The Duke lawyers learned of the signed and sworn affidavit in June 2012, following a meeting between District Attorney Jim O’Neill and Swecker, the retired FBI agent with experience auditing criminal investigations, including a critical 2010 audit of the SBI crime lab.
Swecker came to the same conclusion as the Silk Plant Forest Citizens Review Committee: The investigation was deeply flawed and incomplete. Swecker did not conclude that Smith was innocent, but said he deserved a new trial.
At the meeting with Swecker and in a followup email, O’Neill cited the Miles affidavit as proof that Marker had identified her attacker as a black male.
“I am holding in my hand a sworn affidavit by Arnita Miles, who was one of the first officers at the scene and the person who spoke with Jill while she lay on the floor of Silk Plant Forest,” O’Neill wrote. “Despite this evidence, the Duke Innocence Project continued to parade the name of Kenneth Lamoureaux as the person who likely committed this crime, knowing full well that Jill Marker said her attacker was a black man.”
Swecker was shocked.
“I was taken aback that he attached any credibility to that affidavit,” Swecker said in a recent interview. “The affidavit was not even remotely credible to anyone who looked at the evidence in the case.”
Freedman, the lawyer for the prosecutors, said Swecker’s response is immaterial to the case.
“Different people are shocked by different things,” Freedman said.
The prosecutors never used the affidavit in court or introduced it into evidence, so there was no misconduct, Freedman said.
Legal misconduct can occur inside and outside of court, Coleman said.
“I can think of no situation where it is ethical for a lawyer to obtain a sworn affidavit that is false and use it for any purpose,” he said.
At the State Bar, Coleman’s complaint was assigned to Patrick Murphy, a retired career prosecutor with the Attorney General’s office. Murphy made his recommendation to the Grievance Committee: no rule violations occurred and the complaint should be dismissed.
John Silverstein, the chair of the Grievance Committee, said he relied on the recommendation of staff lawyers. When they recommended dismissals, which occur about 100 times a month, he said his policy was to review the letter and sign off.
Joseph Neff: 919-829-4516, @josephcneff