City leaders say they will release a statement on Friday that, as Mayor Allen Joines put it, “will lay out the specifics of the reasoning.”
Speculation has abounded that the council's decision to not intervene with the courts is based on concern that it might incur financial liability because a motion on Smith's behalf could be interpreted as an admission of wrongdoing. Joines declined to comment on that matter in an interview yesterday.
In a letter to city council on July 27, the co-chairs of the Silk Plant Forest Truth Committee wrote, "We would respectfully point out, however, that to the extent potential civil liability is a factor being weighed, the council's actions or inaction may impact matters for better or worse. Some attorneys have publicly suggested that embracing the truth and bringing it to the court's attention via an amicus curiae brief in the instant case may mitigate the city's potential liability."
The city's decision comes on the heels of an Aug. 3 filing by the NC Justice Department asking a federal court to deny a motion by the Silk Plant Forest Truth Committee to appear as a “friend of the court.” Boiled down from legalese, the committee’s motion essentially asked US District Court Judge Catherine Eagles to consider an opinion by consultant Chris Swecker that Smith deserves a new trial because all the jury did not hear all the evidence and some of the evidence presented was not accurate. The state argued that Swecker’s report “is simply irrelevant.”
The report contains the opinions of Mr. Swecker concerning the evidence and investigation in the case for which petitioner was convicted and sentenced. Particularly notable is Mr. Swecker’s opinion that justice dictates a new trial. Mr. Swecker is in essence and erroneously giving an opinion regarding a determination that is solely within this court’s province.The filing merely identifies Swecker as “an individual,” omitting to mention that he is a retired assistant FBI director with extensive experience in law enforcement. The omission of any reference to Swecker’s professional background and dismissal of his opinion is odd considering that Attorney General Roy Cooper commissioned Swecker and another retired FBI agent to audit the State Bureau of Investigation. (Swecker found that the bureau “withheld or distorted evidence in more than 200 cases at the expense of potentially innocent men and women,” the News & Observer reported.)
Noelle Talley, a spokeswoman, said the NC Justice Department would decline to comment due to the pending nature of the litigation.
Swecker said today that the NC Justice Department’s characterization of his involvement in the case as “erroneously” indicates a disagreement with his opinion itself rather than an objection to his expressing opinion.
“The jury didn’t see everything, and some of what it saw was not correct,” Swecker said. “If you weight it out, I think I came down on the side of he deserves a new trial so that the jury can hear all the evidence that’s relevant and hear the accurate evidence — get it all out there. By no means am I saying that Kalvin Michael Smith is guilty or innocent.”
The Winston-Salem City Council’s sudden disinterest in intervening in the Smith case is also odd, considering that a majority of members professed heartfelt concern for justice only last month.
Councilman James Taylor Jr., who represents the Southeast Ward, is the only member of council who has publicly dissented from the majority decision rendered on Monday.
“I personally believe that we should file an amicus brief, and I’ll be happy to do what I can personally to ensure that justice is served as a private citizen,” Taylor said this morning.
Councilman Derwin Montgomery, who represents the East Ward, has reportedly said he will issue an individual statement tomorrow, alongside the official statement representing the majority of council.
When the council first discussed the possibility of requesting that the federal court grant Smith a new trial in July, a majority of council members indicated they were supportive.
Taylor and Montgomery both said they thought the city should file an amicus brief. Councilwoman Molly Leight also indicated support.
“There comes a time when we must do what is just and right,” North Ward Councilwoman Denise D. Adams said at the time. “We have to use our political will to always right injustice.”
Mayor Pro Tem Vivian Burke said, “We want justice, that’s all. And want this community to move forward.”
Council members Wanda Merschel, Robert Clark and Dan Besse, who respectively represent the city’s northwest, west and southwest wards, appeared to be the least sympathetic to the idea of filing an amicus brief. Merschel merely said that the city needed closure and that the council looked forward to consulting with the city attorney. Clark said the council needed more information. And Besse was not heard from.
The mayor votes only in the event of a tie on the eight-member council. The decision of a majority of council members to not intervene in the case indicates a defection of at least one of the four members who initially expressed support for taking a stand for justice but who have not publicly stated their position since the decision was made on Monday.
I have calls in to Leight, Adams, Burke and Montgomery, but so far have not heard a response. Clark said on the advice of City Attorney Angela Carmon he would not comment on his personal position on the matter.
“I certainly provided them legal advice, and as they indicated they decided not to [file an amicus brief] based on my legal advice,” Carmon said.
The city attorney also said the city has not consulted with either the Forsyth County District Attorney or the NC Justice Department on the decision. Talley confirmed that the NC Justice Department has not advised the city on filing an amicus brief.
“It’s ultimately the city council’s decision based on the legal advice of their attorney,” Carmon said. “Their opinion as to what the city council should do is not germane to the decision that they have to make.”
The possible involvement of the district attorney's office was raiised as a concern in the letter from the Silk Plant Forest Truth Committee.
"As is well known, the FCDA's office is recused from the pending litigation because the petition alleges transgression by that office as well as by the WSPD," the letter reads. "Consequently, we would be troubled to see the city generate civil liability for itself if indeed it was consulting the FCDA's office regarding if, how, or to what degree the city accurately informs the federal court of what the city now knows in this matter."