PUBLISHED:May 30, 2012

Report suggests new trial for Wrongful Conviction Clinic client

Kalvin Michael Smith, a client of Duke’s Wrongful Convictions Clinic challenging his 1997 conviction for assault with a deadly weapon and armed robbery, may have had his chance for a new trial bolstered by a report released May 30. Written by a former FBI official who conducted an independent investigation into the circumstances of Smith’s conviction, the report strongly condemned the police investigation that led to Smith’s arrest and conviction.

Christopher Swecker, a former FBI assistant director who conducted a widely acclaimed review of North Carolina’s State Bureau of Investigation in 2010, spent 16 months looking into the Smith case. In his report, Swecker called the police investigation "seriously flawed and woefully incomplete.”

“Maybe, given his stature and the role [Swecker] played in the SBI report, people will give this report the credibility it deserves,” said James Coleman, the John S. Bradway Professor of the Practice of Law, co-director of the Wrongful Convictions Clinic, and a faculty advisor to the Duke Innocence Project. Coleman has been involved in the case since 2003, when student Innocence Project volunteers first began investigating Smith’s claims of innocence. Dave Pishko '77, a Winston-Salem lawyer, with the help of the Wrongful Convictions Clinic, filed a habeas corpus petition on Smith’s behalf in federal court, and students continue to investigate his case, Coleman said.

Smith was arrested after the horrific beating of a young, pregnant store clerk in Winston-Salem in 1995. The clerk, Jill Marker, was permanently blinded and disabled by the attack; she delivered her child while in a coma.

The police focused on Smith after an ex-girlfriend reported him. After he passed a polygraph test, investigators focused their attention elsewhere, until another ex-girlfriend reported that Smith was involved in the beating. Ultimately the case against him rested on the testimony of Eugene Littlejohn, an acquaintance, and the dramatic courtroom appearance of the victim who, unable to speak, was wheeled into the courtroom where she pointed at Smith.

Swecker’s report, and the ongoing efforts of Pishko, Coleman and Clinical Professor Theresa Newman '88, who co-directs the Innocence Project and Wrongful Convictions Clinic, have pointed to serious flaws in both witnesses’ testimony.

Swecker questioned the accuracy of Marker’s recollection, given the extent to which she had been injured in the attack and her repeated pre-trial exposure to Smith’s photographs. He also pointed out the frequent changes in the testimony of Eugene Littlejohn, an acquaintance of Smith who eventually claimed he was with Smith the night of the attack. Littlejohn, along with a second acquaintance who testified against Smith, admitted in affidavits that their testimony was false.

“In fact Littlejohn was unable to supply any of the essential details of the crime during his recorded interviews,” Swecker wrote. “Conversely this writer counted over 20 pertinent details that were provided to Littlejohn by Detective Williams over the course of these interviews.”

Swecker presented his findings during a press conference in Winston-Salem on May 30. Later in the day, Coleman joined members of a citizens group in calling for a new trial for Smith. “The report calls for a new trial, which we’ve been doing since 2003,” he said. “I hope that N.C. Attorney General Roy Cooper and the Winston-Salem City Council and the District Attorney will all join us in petitioning for a new trial for Kalvin.”

Coleman said that when Smith learned the contents of the Swecker report he was “ecstatic, but he’s obviously frustrated that he’s still in prison.”

Read more on the Smith case from Duke Law Magazine.