No change of heart

Kalvin Michael Smith and North Carolina’s long struggle with wrongful convictions

A story of unfinished justice holds no tidy endings.

A torchbearer for the struggle loses his own battle against despair. A group of student activists graduate. A filmmaker screens an early draft of his work for a senior thesis. A powerful politician aspiring to higher office dodges moral responsibility. All the while, a wrongfully convicted man sits in prison, and his family carries the pain of his absence.

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Kalvin Michael Smith, a black man from Winston-Salem, has spent 19 years behind bars after being convicted of the brutal beating of retail worker Jill Marker, based on a police investigation that former FBI Assistant Director Christopher Swecker called “seriously flawed and woefully incomplete.” The movement to free Smith has faced at least two major setbacks.

Swecker’s independent review of the case went on to say that the flaws in the police investigation “question whether the original jury trial rendered their verdict based on all the relevant and accurate facts of the case.” He agreed with a finding by an official committee impaneled by the Winston-Salem City Council that “there is no credible evidence that Kalvin Michael Smith was at the scene of the crime,” and said he believes Smith deserves a new trial.

One of the major disappointments of the case was Forsyth County Superior Court Judge Richard Doughton’s decision in January 2009 to turn down Smith’s request for a new trial after four days of hearings.

Keith T. Barber was a reporter for Yes Weekly at the time (Disclosure: Triad City Beat Senior Editor Jordan Green and Editor-in-Chief Brian Clarey worked with Barber at the paper back then). Barber left the courtroom that day stunned by the outcome, while processing the blow through the hurt and determination expressed by several speakers outside the Forsyth County Hall of Justice. They included Darryl Hunt, a Winston-Salem man who had been wrongfully convicted of murder and then freed after 19 years in prison after being cleared through DNA evidence; Larry Little, a community leader and professor who had spent years fighting for Hunt’s release; and Sheila LeGrand, Kalvin Michael Smith’s mother.

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Barber, who screened an early version of his film Ordinary Injustice for his senior thesis in UNCG’s documentary filmmaking program at Hanesbrands Theatre on April 28, found himself walking from the courthouse to Krankies Coffee to make a blog post for Yes Weekly that January 2009 day.

“And as I was walking the two blocks from the Hall of Justice to the coffee shop I just got angrier and angrier and angrier,” he recalled during a Q&A session after the screening last week. “My perspective was someone who had no clue how the criminal justice system worked. I had no idea. And I was very naïve about that. And as you see, Kalvin Michael’s greatest sin was that he was naïve, too. As you heard in the film, he said, ‘I went down there [to the police department] because I thought I was going into the hands of people who were going to protect me, but I guess I was wrong.’ And I learned that day that justice does not always prevail. That’s how the original impetus of the story was born. That’s the emotion that’s kind of carried me through the last seven years.”

In 2013, another setback for Smith occurred when US District Court Judge Catherine Eagles turned down Smith’s habeas corpus appeal. Despite the damning report of its own committee, Winston-Salem City Council had declined requests by Smith’s supporters to file a friend-of-court brief underlining the shoddiness of the original investigation. And state Attorney General Roy Cooper, who inherited the case by virtue of the Forsyth County District Attorney’s office’s recusal, refused to file a motion to vacate the conviction, calling the Swecker report “irrelevant.”

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That might have been the end of the story, but Smith’s lawyers at the Duke University Innocence Project and a group of concerned citizens in Winston-Salem known as the Silk Plant Forest Truth Committee have never stopped fighting for Smith’s freedom.

Thanks to the efforts of truth committee co-chair Stephen Boyd, a religious studies professor at Wake Forest University, and Little, a political science professor at Winston-Salem State University, students at the two institutions have taken up the cause. Teach-ins at both universities and Salem College prompted students from all three institutions to join forces under the banner of NC Students Against Wrongful Convictions. Together with their elders in the truth committee, the student activists have waged a campaign to link Cooper’s bid for governor with his unwillingness as attorney general to use his prosecutorial discretion to intervene on Smith’s behalf. The Democratic primary, in which Cooper easily prevailed over an opponent who was more sympathetic to Smith’s case, came and went without the attorney general relenting, but Smith’s supporters have vowed to keep up the pressure. Meanwhile, the legal team at the Innocence Project has filed an appeal to the state Supreme Court in hopes of presenting new evidence if they can get a hearing.

In another development in the case, the Winston-Salem students traveled to Raleigh on March 24 as the North Carolina NAACP launched an initiative demanding that Cooper file motions to vacate the convictions of Smith, along with Dontae Sharpe, a black man from Greenville who was convicted of murder.

The cases are eerily similar. Sharpe was convicted in 1995, Smith in 1997. Since their convictions, key witnesses in both cases have recanted. In Sharpe’s case, the trial court judge refused to admit testimony from a woman who said her boyfriend, who committed suicide before the trial, admitted to the killing. And in Smith’s case, his lawyer failed to put on evidence that the police dropped a suspect who was known to have visited the store where Marker worked, had lost custody of his children the day before the assault and was subject to a domestic violence restraining order. Both Sharpe and Smith were turned down by state courts in their Motion for Appropriate Relief hearings, but in Sharpe’s case a federal district court found in his favor, only to have the ruling overturned by the Fourth Circuit Court of Appeals on the basis that the federal courts should have deferred to the state courts as finder of fact in the original trial.

For the Black Lives Matter generation steeped in an understanding of the disproportionate killing of black people by law enforcement and vigilantes and in possession of a firm grasp of the systemic forces driving mass incarceration, Kalvin Michael Smith’s railroading seems more like a feature of the criminal justice system than a glitch.

In contrast to Keith T. Barber’s rude awakening about the dynamics of lopsided justice in the Kalvin Michael Smith case five or six years earlier, many of the younger students came more intuitively to the cause after being exposed to information about the case.

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“After the Silk Plant Forest Truth Committee’s teach-in I was hooked from there,” said Shakera Keyser, a junior at Salem College with a double major in English and criminal studies.

“I know you remember Freddie Gray,” Keyser remarked, referring to the highly publicized death in custody that resulted in weeks of unrest. The Baltimore native added that distrust of law enforcement and the legal system is endemic in Charm City.

Virginia Parnell, a senior at Salem College majoring in English and minoring in criminal studies, learned about the case through a class taught by Kimya Dennis.

“I’ve always really cared about wrongful convictions,” she said. “I’m interested in working with the Innocence Project, so I thought this would be a good way to get my hands in it.”

Jaylon Herbin, a senior at Winston-Salem State University who is majoring in political science, has been steeped in activism throughout his college career, participating in a walkout to honor the life of Trayvon Martin, who was killed by an overzealous neighborhood watch volunteer in Florida, and taking part in the 2015 Million Man March.

Herbin, who was appointed chair of the political action committee at the university by the student body president, learned about the Kalvin Michael Smith case from a criminal justice class taught by Larry Little.

Hayden Abene, a senior at Wake Forest University majoring in religious studies, learned about the case in the spring of 2015 as a student in Stephen Boyd’s religion and public-engagement class. Abene was one of the handful of students who chose the Kalvin Michael Smith case as a project for the semester.

Bennett Heine, a senior at Wake Forest University majoring in anthropology, said he was pulled into the effort when he was called on to speak about the case in Abene’s place at a public event.

“Before I’d even reviewed the facts, over the past couple years people have recommended books focused on how the criminal justice system works,” he said. “A lot of people have come to the realization through Michelle Alexander’s book The New Jim Crow that there needs to be a certain level of skepticism towards the criminal justice system. I was predisposed to take the story of a poor, black man in the criminal justice system seriously.”

Boyd said in his three decades as a professor at Wake Forest University, this is the first time he’s aware that students at the three institutions have come together to work on a single campaign. Even before the formation of Concerned Students for Kalvin Michael Smith (the forerunner of NC Students Against Wrongful Convictions), Anne Donovan, a graduate student in the religious studies program at Wake Forest University, launched Facebook and Twitter pages for the Free Kalvin Michael Smith movement. Donovan is now a co-chair of the Silk Plant Forest Truth Committee.

“The way that happened on Wake Forest campus is Hayden became aware and Anne became aware, and they’ve remained essential to this effort,” Boyd said. “Hayden shared with his friends at Wake Forest about the campaign, and Hayden approached me and the Silk Plant Forest Truth Committee, and said, ‘We want to see how we can help with this.’”

The students and their elders in the Silk Plant Forest Truth Committee struggled over the question of whether to link the effort to free Kalvin Michael Smith to Attorney General Roy Cooper’s quest for the Governor’s Mansion. Abene described the process as “a lot of long, frustrating conversations among ourselves, Steve Boyd and Kelly Carpenter,” the latter of whom is the senior pastor of Green Street United Methodist Church and a co-chair of the Silk Plant Forest Truth Committee.

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“It’s not a get-out-the-vote campaign,” Abene said. “There was a realization that Cooper has not been responsive. He has not met with Chris Swecker. He suppressed the appeal. It’s a last resort because the only thing he’s going to respond to is a threat to his political career. That’s what it’s come down to.”

The students held a press conference at Emmanuel Baptist Church in Winston-Salem on Feb. 10 demanding that Cooper intervene on Smith’s behalf as the Democratic primary loomed a month away.

In response, the Attorney General’s office release a statement saying, “We understand the community’s concerns and we want to work with them on systemic issues in the criminal justice system but at this point in the legal process only a court of law can overturn Kalvin Smith’s conviction.”

The statement implied that Cooper was powerless to act, but the students were savvy enough to understand that while a judge will have the final say, a joint filing by the attorney general and the defense counsel expressing no confidence in the conviction would almost certainly cause a judge to take notice. So soon after, during a Feb. 18 rally to support Smith at Dillard Auditorium at Winston-Salem State University, the students rolled out a giant banner that read, “Free Kalvin Now: Move to Vacate.”

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They demonstrated that they understood full well the legal tools at Cooper’s disposal.

The attorney general did not respond to efforts to reach him for comment for this story.

After gathering more than 200 signatures on the banner, the students traveled to Raleigh on March 7 seeking a meeting with Cooper. The attorney general refused to meet with the students, and Herbin and Parnell wound up handing off the banner to a security guard.

Among those who spoke at the rally organized by Concerned Students for Kalvin Michael Smith was Darryl Hunt. Upon his release from prison after being cleared of wrongdoing by DNA evidence, a reporter had asked whether there were other Darryl Hunts — innocent men who had been wrongfully convicted — in the state prison system. “Yes,” Hunt had responded. “Kalvin Michael Smith.”

Shaking with emotion at the February rally, Hunt gave what would turn out to be his final public speech at Dillard Auditorium.

Hunt noted that he had spent exactly the same amount of time in prison that Smith has to date before he was released — 19 years. He also observed that if not for a single juror who objected to applying the death penalty, Hunt would have been dead long before DNA evidence cleared him.

“Justice did not come because they had a change of heart; justice came because God demanded it,” Hunt said. “God sent me through whatever it was for us to be here tonight and to fight for somebody else because freedom — Kalvin is freed in his heart because he knows he didn’t commit this crime — the justice system refuses to do what it is supposed to do.”

He paused for a moment.

“Let me change that,” he said. “The justice system is doing what it do: Nothing.

“Kalvin is an African-American that is in a prison system that’s designed to keep him, to destroy him, and destroy the fabric of our community,” Hunt continued. “You have to stand up. And I’m so proud to see young kids standing up and taking on this fight because don’t allow them to tell you what they’re gonna do. You tell them what you want done. Because you are the people.”

Less than a month later, Hunt would be found dead inside a pickup truck in a parking lot across the street from Lawrence Joel Veterans Memorial Coliseum. Police said he died from a self-inflicted gunshot wound.

Shortly after Hunt’s death, on March 24, the students returned to Raleigh, this time joining the North Carolina NAACP, as it launched an initiative to free Kalvin Michael Smith and Dontae Sharpe, the Greenville man convicted of murder in 1995. Hayden Abene, Bennett Heine and Virginia Parnell stood beside the Rev. William Barber II, president of the North Carolina NAACP, during a press conference at St. Paul AME Church in Raleigh. Smith’s parents, Gus Dark and Sheila LeGrand, sat with Sharpe’s mother, Sarah Blakely, in the front.

“Today is Maundy Thursday, when we remember as Christians the night that Jesus was wrongfully arrested, tried in a kangaroo court, sentenced and found guilty by execution through a corrupt system,” Barber said. “Pilate had a chance to overturn the wrongful conviction, but chose not to do so. In love and truth we call on Gov. McCrory and Attorney General Roy Cooper — while they may be competitors in a governor’s race — to put that aside. Come together, free Brother Smith, free Brother Sharpe, and do not become the modern-day Pilates.”

Later that day, the three parents lead a march to the Attorney General’s office and requested a meeting with Cooper. The request, somewhat surprisingly, was granted.

“During that hour or so I felt the man wanted to be legitimate about dealing with this problem,” Dark recounted during the Q&A after the screening of Barber’s documentary film last week. “One thing I realized is that my son went into prison in a political year, and now politics in North Carolina might get him out or keep him in there. What I’m afraid of is that now’s a bad time for people to think that Roy Cooper’s soft on crime.”

He paused and caught his breath.

“The only thing I told Mr. Cooper is that he has to do the right thing regardless of how he might feel,” Dark continued. “Because the people here in Forsyth County literally dumped this mess on him. And I suggested that he needed to carry it back to Forsyth County and dump it on them.”

Dark, who regularly corresponds by mail and talks on the phone with his son, has proven to be an anchor for many of Kalvin Michael Smith’s supporters.

“My friendship with Gus Dark was the thing that kept me involved,” Barber acknowledged during an interview before the screening of his film.

Four days earlier, the students had held a rally at Merschel Plaza in downtown Winston-Salem and march to the Forsyth County Hall of Justice. The activities included a vigil to remember Darryl Hunt and a renewed call on Cooper and McCrory to free Kalvin Michael Smith.

“Seeing [Kalvin’s] mother cry the night of the rally and hearing Gus Dark tell us we bring his family joy, it was bittersweet,” Jaylon Herbin recalled. “Seeing those who have the ability to do justice and don’t — it’s shameful.”

Many of the students are graduating this month, and each are assessing in different ways what the transition means for their commitment to Kalvin Michael Smith and the cause of actual innocence.

Bennett Heine, for one, will be returning to his hometown of Louisville, Ky.

“It feels like I’m walking away from it,” he said. “There’s an artificial finish line. I’ll be able to go home, and Kalvin will still be in that correctional unit.”

Virginia Parnell is still figuring out what comes next after graduation, but she said her relationship to the cause is unlikely to change.

“Wherever I land,” she said, “I’m never going to stop advocating for Kalvin and those who are wrongfully convicted.”

The injection of new energy from the students, in part, motivated Barber to screen an early draft of his film.

“What I see is an opportunity to add to the dialogue with the students at Salem College, Winston-Salem State University and Wake Forest University, and with Pat McCrory and Roy Cooper,” he said in an interview before the screening. “It’s not a comprehensive story. It humanizes Kalvin Michael Smith. You have objective observers like Phoebe Zerwick [the investigative reporter who broke the story about the case in the Winston-Salem Journal]. And it shows the loss experienced by three families.”

The case has certainly taken a toll on the Marker and Smith families, but less obviously, Barber noted that the family of Kenneth Lamoureux — an early suspect in the assault, who is white — has also suffered.

One of the most illuminating interviews in Barber’s film is Ellen Lamoureaux — Kenneth Lamoureaux’s  ex-wife — a nurse who suffered physical abuse from her husband and spent several years after the Marker assault on the run to keep her family safe from him.

“I was really very surprised it had shifted from the intensity of Ken Lamoureux to some black man from Crimestoppers,” Ellen Lamoureux says in Barber’s film.

She recounts a conversation with Detective Don Williams in another scene: “They were sure that’s who did it and I questioned Detective Williams because they had all this evidence pointing towards Ken Lamoureux. And I asked him what happened with that and he said, ‘What does it matter? We’re getting a black drug dealer off the street.’ Which frightened me ever more because Ken Lamoureux was still on the street.”

Compounding the egregiousness of Williams’ rationalization, there is no evidence that Smith ever sold drugs.

The requirements of Barber’s master’s thesis imposed a 40-minute limit on the early draft, and necessitated painful cuts. Future versions of the film will include more detail about the legal complexities of the case, and Barber said he plans to include a list of people who declined to grant him interviews, including Williams, Attorney General Roy Cooper, District Attorney Jim O’Neill and former police Chief Scott Cunningham.

Introducing Ordinary Injustice at HanesBrands Theatre, Barber said, “The film will not be done until the day Kalvin Michael Smith is released. The final scene will be a reunion with his family.”

Another person who has not granted an interview to Barber — at least to date — is Arnita Miles, who was the first police officer at the scene at the Silk Plant Forest store after the assault on Jill Marker in December 1995. During the Q&A after the screening of Barber’s film at HanesBrands Theatre in Winston-Salem last week, Miles rose from the back row to address Barber.

“Seeing your film, it broke my heart, especially being one of the last people to actually talk to Jill Marker before she went into the state she was in,” Miles said. “So my question to you is, Mr. Barber, what do you want to accomplish with this film?”

Barber’s answer was complicated and lengthy, but he concluded by saying, “My hope with this project is to hopefully give a human face to wrongful convictions, and allow Kalvin Smith to have a voice, which he didn’t have until 2009, until the [Motion for Appropriate Relief] hearing, and mostly to give his family a voice.”

Smith’s parents, Gus Dark and Sheila LeGrand, joined Barber at the podium for the Q&A, along with James Coleman and Theresa Newman from the Duke University Innocence Project, and Zerwick, the investigative reporter. Dark asked the student organizers to join him.

“These young people are amazing,” he said. And as Virginia Parnell took her place beside him as the student’s representative, Dark said, “Thank you so much.”

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Dark told the audience that the struggle to free his son calls for a broader strategy.

“There’s some things that really don’t even belong to us, and they came down from above,” he said. “That’s like love and peace and justice. If they fail to do the right thing for my son, Kalvin Michael Smith, we’ve got to start fighting for Dontae Sharpe or someone else who’s going through the same situation. This stuff have to stop. I don’t know about y’all; I’m tired of racism, tired of injustice. I’m ready for peace.”

One woman asked Dark how he and his son are able to maintain such positive attitudes. Dark responded that considering that their ancestors came through slavery, their situation is not as hopeless as it might seem.

“I think about a shipload of black slaves shackled in the bottom of a boat,” Dark said. “And one of those people, or maybe two was an ancestor of mine. If they could hang in there and endure — if they could do that — then I can stay on this for the rest of my life.”