Clinic client Smith asks Fourth Circuit for rehearing

February 4, 2014Duke Law News

Students, faculty, and alumni in Duke’s Wrongful Convictions Clinic are asking the U.S. Court of Appeals for the Fourth Circuit to grant a rehearing to client Kalvin Michael Smith after the court denied his application to appeal in January.

Smith was convicted in 1997 of the beating of Jill Marker, a young, pregnant store clerk in Winston-Salem; the brutal assault left her permanently disabled. The clinic took Smith on as a client in 2003 after student volunteers with Duke’s Innocence Project vetted his persistent claim of innocence.  His Duke legal team, which includes Winston-Salem attorney David Pishko ’77 acting pro bono, found numerous flaws in the investigation and prosecution of Smith, including problems with the testimony of three key witnesses. Two of those witnesses have since admitted in affidavits that their testimony against Smith was false. 

At the root of Smith’s appeal to the Fourth Circuit is a claim that the state withheld evidence favorable from him prior to trial.  “What is particularly discouraging is that the [Fourth Circuit] panel did not explain its decision,” said James Coleman, the John S. Bradway Professor of Law who co-directs the Wrongful Convictions Clinic. “The effect is that the federal courts in this case have retroactively imposed a duty on Mr. Smith to have asked for evidence in 1997, without knowing then that it was favorable.”

Coleman said that absent a rehearing, the effect of the Fourth Circuit ruling is far reaching.  “It relieves the state of its constitutional obligation to disclose evidence that it alone knows is favorable, whether or not the defendant has requested it.  There was no way in 1997 for Kalvin to know that the evidence withheld from him was favorable if the State did not disclose that fact.  If the Fourth Circuit does not reconsider its decision, it will retroactively gut the State's obligation to disclose favorable evidence exclusively within its possession.”

Ultimately the case against Smith rested on the testimony of Eugene Littlejohn, an acquaintance who has since admitted his testimony was false, and the dramatic courtroom appearance of the victim who, unable to speak, and initially in a hospital bed, was wheeled into the courtroom where she identified Smith by shaking her head up and down when asked if he was the person who attacked her.  The trial judge and reporters who covered the trial have indicated that Marker’s identification was equivocal; on two of the four occasions on which she was asked if Smith was the assailant, she appeared to shake her head “no.”

The case is controversial  in Winston-Salem where, in the 17 years since Smith’s conviction, the Winston-Salem Journal published a series of articles raising questions about his conviction; a citizens review committee formed by the Winston-Salem City Council reviewed the case and concluded that it had no confidence in the police investigation; a different citizens’ group commissioned a separate investigation by former FBI Assistant Director Chris Swecker, who released a report criticizing the police investigation of Marker’s beating and recommending a new trial for Smith.

For Duke Law students working in the clinic, Smith’s case has provided a chance to develop crucial skills, and also to get an inside look at the criminal justice system.

“We have done a lot of investigative work, including tracking down and interviewing witnesses, trying to locate relevant video footage that had been lost, and interviewing the victim's family as well as the judge who presided over the case,” said Ndidi Menkiti ’14. “We have also done a lot of research and writing to assist in developing and crafting legal arguments in the case, which is a lot like the kind of work we might do as junior associates.”

Joy Tsai ’14 said her clinic experience has been valuable. “I am interested in litigation and I believe that I am getting early practice now by working with complex fact patterns, interviewing both cooperative and slightly-hostile witnesses, drafting memos and briefs, and analyzing opposing counsel's filings.”

Both students, who are working with Judea Davis ’14 on the case, said that seeing the real-life consequences of legal decisions was both inspiring and frustrating.

“I worked as a research assistant for the clinic during my 1L summer and became fascinated with our cases,” Tsai said. “The stories behind how Smith and our other clients have been convicted are simultaneously unbelievable, frustrating, and heartbreaking.  I also began to understand how the principles of what I learned in class worked in actual practice, and enrolled in the clinic to continue this lawyering experience.”

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