The Innocence Project
By Gergely Kanyicska '05
Students investigate plausible claims of wrongful conviction
The Innocence Project was founded with the belief that no matter what people's views on crime may be, no one wants to see the innocent imprisoned.
- Associate Dean, Theresa Newman '88
Kalvin Smith was not a suspect early in the police investigation, according to the Innocence Project investigation. Another man, Shane Fletcher, had made a detailed telephone confession from a mental institution in Butner, NC in April 1996, but medical records later cleared him by showing that he was confined to psychiatric care at Forsyth Medical Center during the attack.
A reporter investigating the case for a series in The Winston-Salem Journal , Phoebe Zerwick, learned that an acquaintance of Marker's, Kenneth Lamoureux, was admitted to the same ward as Fletcher just a few days after the Silk Plant Forest attack, and before Fletcher made his confession. Two witnesses reported seeing Lamoureux talking with Marker an hour before the attack. Coward and other students working on Smith's case share Zerwick's belief that Fletcher could have learned about the attack from Lamoureux, which would explain his knowledge of the details.
Police dropped Lamoureux as a suspect when Marker, semi-conscious after 10 months in a coma, identified her assailant only as a black man.
According to the students' investigation, the police focus first turned on Smith in June 1996 when he was named in an anonymous tip to Crime Stoppers. The tipster turned out to be a jilted girlfriend bent on revenge. Although Smith was cleared by a polygraph test, he was named by another girlfriend seven months later; she later claimed she had simply wanted to punish him for his philandering, and had based her tip on the details he gave her about the earlier one.
Smith admitted to being under the influence of beer and marijuana when he met with the lead investigator, Don Williams, “to straighten things out” after he was called in for an interview regarding the second tip. Although this interview was not recorded, Coward notes that the police report indicates that 24-year-old Smith reacted emotionally to Williams's accusations and intense questioning, eventually succumbing to the detective's assertion that confessing to involvement would be in his best interest.
False confessions can be coerced even from unimpaired suspects through ordinary interrogation techniques, Newman points out.
"Well-trained interrogators limit suspects' perceived options until the suspect sees no alternative but to agree to one of the scenarios presented just to end the questioning. At times ‘proper' interrogation can even cause suspects to doubt their own memories."
Smith recanted his confession before trial, and it was not introduced, having been totally inconsistent with the evidence of the crime, Coward notes. But testimony against him was gathered in a similarly coercive fashion; for example, investigators apparently offered one prosecution witness the option between freedom for cooperation and a lengthy prison sentence.
"The evidence was flimsy and inconsistent," Coward says. "The testimony of the prosecution's witnesses did not so much fit the evidence as it fit the prosecution's theory about what happened. There were more likely suspects, but the defense did not effectively point out the glaring problems with the prosecution's case."
Although Marker identified Smith as her assailant at trial, she made the identification by pointing and nodding from her wheelchair. "Defense lawyers did not cross-examine her because she was
unable to speak, only gesture," Coward continues. "It was impossible for her to answer complex questions, and defense counsel did not want to 
appear to be attacking the victim."
"Looking back, Marker's identification was wholly unreliable," Coleman says.
"But it was a show for the jury, and it was very effective," adds Newman.
Coward, along with Joe Davis '07, flew to Ohio last fall to interview Marker and her family. "Her parents told us that she continues to be sure that she accurately identified her assailant," Coward says. "She has trouble communicating these days, so we were mostly just able to greet her–we weren't able to ask her any questions."
Eyewitnesses find it emotionally difficult to entertain the possibility that they may have made a mistake, observes Coward. "For the Marker family, Kalvin's conviction gave them closure, and it's very painful to revisit the subject of the attack."
The identification alone may not have secured the conviction. Post-trial interviews indicated that some jurors based their decision on the lack of a defense; convinced that the prosecution had failed to make a case against Smith, his lawyers did not present a case in rebuttal.
[The conviction] did not have to happen," Coward says. “Had Kalvin been better educated about his rights, had the people who testified against him been less easy to manipulate, or his defense attorney more effective, Kalvin never would have been convicted.
"I am committed to working on this case because I am increasingly convinced that Kalvin did not commit this crime," Coward goes on. "I am as certain as anyone can be that he is innocent. I'm very hopeful that all the parties involved will come to the same conclusion, and that Kalvin will ultimately be released."
Coward credits Zerwick's 2004 investigative series in The Winston-Salem Journal as having been enormously helpful in raising the profile of the case and putting pressure on the district attorney and Winston-Salem police to cooperate. "The district attorney signed a voluntary consent order granting us access to all their files largely due to Zerwick's articles. We have been in regular contact with the DA's office and the police since, and that access has been extremely useful in getting a sense of what went wrong."
In spite of a community-wide outcry over the mishandling of the case, public opinion alone is not enough to win Smith his freedom, notes Coward. She hopes that the publicity surrounding the 2003 exoneration of Darryl Hunt, who served 18 years in prison for a Forsyth County rape that he did not commit, will help gain some legal traction for Smith's claim of innocence.
"Many of the people I've interviewed for the case have said that Darryl Hunt has made them more aware that sometimes even innocent people are convicted of crimes."
Reflecting on what she has learned from her Innocence Project work, Coward says it has made her cognizant of the fallibility of the system.
"Even with the burden of proof and the unanimity requirement, juries aren't always going to ‘get it right.' And if something goes wrong, and an innocent person is convicted, it's extremely difficult to undo that conviction, especially if, as in this case, there is no DNA evidence."
The student volunteers have made progress, though. The State Bureau of Investigation is currently investigating possible police misconduct in withholding evidence in the Smith case; the outcome of that investigation might give Smith grounds for an appeal. And based on recommendations from the North Carolina Actual Innocence Commission, the Winston-Salem police have begun videotaping all interrogations in felony investigations.
Newman and Coleman hope the Innocence Project will eventually be able to employ a full-time investigator and post-graduate fellows to work case files. They also would like to recruit practitioners to assist students with the legal work involved in innocence cases, in order to maximize the learning experience and make progress in more cases.
"With more help from experienced practitioners, students will learn–at least in some cases–that justice can be done, even if it takes a very long time," says Coleman.
According to Coward, her Innocence Project work has already been rewarding.
"It has made me aware that there are problems in our criminal justice system. There is room for reform. The system can be much better."