During this week's hearing, Pishko alleged that the Forsyth County District Attorney's Office withheld exculpatory evidence that would have helped Smith's trial attorney, William Speaks. During cross-examination of Forsyth County Assistant District Attorney Mary Jean Behan on Wednesday, Pishko established that suspect photographs used in a lineup presented to Marker in a 1996 videotaped interview were not turned over to Speaks.
In his final argument, Pishko pointed out that Donald R. Williams, the lead detective in the case, admitted that his case notes of the videotaped interview did not include any mention of the photo lineups presented to Marker. In addition, Pishko pointed out that Williams' case notes did not mention the fact that Marker made an apparent identification of another suspect in the case, Kenneth Lamoureux, during the 1996 interview. "Why are we in this position?" Pishko asked. "Why would Detective Williams, after showing Ms. Marker the photos, why would he not document it?"
During his closing statement, Pishko offered more information regarding potential suppression of evidence by both the Winston-Salem Police Department and the District Attorney's Office. Pishko noted that two of the state's key witnesses, Eugene Littlejohn and Pamela Moore, had recanted their trial testimony, which implicated Smith in the assault on Marker. On Monday, Littlejohn admitted he lied when he testified at the 1997 trial that he entered the Silk Plant Forest with Smith in December 2005 and witnessed Smith putting his hands on Marker. Pamela Moore also recanted her trial testimony that she heard Smith say he had to "beat down" a woman to get out of a store. Moore stated that Detective Williams coerced her into a false statement with promises that two pending misdemeanor charges against her would be dropped provided she lied under oath. Williams denied the allegations that he coerced or threatened any of the state's witnesses.
During Wednesday's closing arguments, Pishko also made an ineffectiveness of counsel charge against Speaks and charged the state with putting on false evidence during Smith's trial. Elder said the basis for Doughton's ruling should come down to one simple question: "What this court is going to have to decide is who's telling the truth and who's not," Elder said. She argued that there was nothing in the record to show any material evidence was withheld from Speaks, and argued that even if Speaks had received the photo lineup Detective Williams presented to Marker in 1996, it would not have altered the outcome of the case.
At the conclusion of Wednesday's arguments, Doughton paused before making his ruling. "It is my conclusion that the defendant has failed to prove his claims. I'm going to rule in favor of the state," Doughton said as a hush fell over the courtroom. Smith wiped away tears and his mother, Sheila LaGrand, asked sheriff's deputies she could speak to her son before he was taken back to his holding cell. LaGrand's request was denied.
On the courthouse steps, Larry Little, a professor of political science at Winston-Salem State, said Smith's defense team would appeal Doughton's decision to the NC Court of Appeals. "Hopefully, we'll get justice there, but the people have to continue to be vigilant. It took us 19 years with Darryl Hunt," Little said. Hunt, who was exonerated after being wrongfully convicted of the rape and murder of newspaper editor Deborah Sykes in 1984, characterized Doughton's decision as "disgraceful" and called for a formal state inquiry into the Kalvin Michael Smith case.
"It's about time we got the state bar calling these judges and prosecutors to task about their license because they're not representing their clients and they're not representing the public. They're doing an injustice to everybody when they do an injustice to one person, and they have done an injustice to Kalvin today," Hunt said.
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