Winston-Salem council members take official and dissenting stances on Kalvin Michael Smith

After city of officials disclosed that the city council would not file an amicus brief requesting a new trial for Kalvin Michael Smith on Monday, the city of Winston-Salem has released an official statement today outlining legal justifications for its inaction.

City Attorney Angela Carmon said in the statement that "the city council's opinion of the merits of Kalvin Michael Smith's petition for writ of habeas corpus would not be legally relevant to the federal court's review of the petition."

Explaining the basis of her judgment that the council's opinion was not "legally relevant," Carmon said in an interview: "The federal court's review is limited to the evidence that was presented in state court."

Hollander countered that the city's opinion of the integrity of the investigation is relevant because Smith's habeas corpus petition alleges that information was improperly concealed by the prosecution in the state court case, and that the federal courts have oversight of such omissions.

The statement also said that the "council recognizes that it is not within its jurisdiction to: (1) determine the guilt or innocence of Kalvin Michael Smith; (2) instruct the court system (state and federal) on how to conduct a review of any proceeding before it; or (3) instruct the attorney general of the state of North Carolina regarding the handling of any criminal matter."


Jet Hollander, a co-chair of the Silk Plant Forest Truth Committee, said of the city's statement: "It's an absolute legal distraction and complete baloney, and they know it. Anyone can go to court and say I or someone who is working for me gave me bad information and I need to get you the complete and accurate information."

He added that the majority of council was throwing up a smokescreen by pleading that it did not have the jurisdiction or authority to take a number of actions — that the citizens group had not asked them to take.

"No one's asking them to do anything but tell the court they now know the trial record is flawed because they contributed to it through a flawed investigation," he said.

Silk Plant Forest Truth Committee, which requested that the city file an amicus brief, had anticipated that argument.

Hollander told the city council's public safety committee last month: “There was a comment by the city manager as to whether the city council should weigh in on this matter. “I would respectfully suggest that the city of Winston-Salem has weighed in with the trial record that so many people say was faulty. In the words of former [FBI] Assistant Director [Chris] Swecker, it was ‘seriously flawed and woefully incomplete’ — that’s a quote. The trial record was produced by an agency of the city of Winston-Salem…. The question is whether you will tell — as Mr. Swecker stated, ‘The full record tells a more complete story of the Silk Plant Forest investigation.’ That’s the question — whether you are going to go to court and say, ‘What was told to you was not the complete truth.’” 

Carmon characterized Hollander's plea as "a non-legal argument," and said she couldn't consider it in her evaluation.
Councilman Dan Besse, who represents the Southwest Ward, defended the council's decision in an interview with YES! Weekly this morning, arguing that the council members don't hold sufficient expertise in criminal law to play a credible role in the court process.

"The city council is not a body that is legally charged with overseeing the conduct of court cases, and it doesn't have any authority of any kind over the criminal justice system," Besse said. "The concerned citizens in this case are in effect asking the city council to weigh in on the conduct of a criminal trial over which the council has no jurisdiction and no professional training to exercise judgment. What that means when it comes to the value of the city's attempt to file an amicus brief is just what the last sentence of the city attorney's statement says: The city council's opinion of Mr. Smith's petition for writ of habeas corpus is legally irrelevant to the federal court. I would expect if the city had attempted to file an amicus brief that the court would have said, 'No, you can't do it. We won't accept it. You have nothing that is legally relevant to our review to tell us.'"

Besse dismissed the notion that the council could have relied upon the considered opinion of Christopher Swecker, a former FBI Assistant Director with extensive law enforcement experience, who reviewed the case and expressed the opinion that Smith deserves a new trial.

"But the fact would remain that what the citizen group is asking us do is give our amateur opinion of the analysis offered by one professional law enforcement person," Besse said. "That goes against the analysis of other law enforcement persons. It still comes back to the city council doesn't have the training or the role to pass that judgment on his judgment, and the federal court which has Mr. Smith's writ for habeas corpus under its jurisdiction knows that."

Besse also said the conclusion of the Silk Plant Forest Citizens Review Committee, which was empaneled by the city council, that they had "no confidence in the Winston-Salem Police Department's investigation... or the result of the investigation and voted 7-2 finding no credible evidence that Kalvin Michael Smith was at the scene of the crime," did not give the city authority or expertise to weigh in with the federal courts.

"That's not what we asked them to do," he said. "We did not ask them for their judgment on the merits of the trial outcome.... We asked them to review the police investigation that were part of it and make recommendations to us on improvements that we ought to make in the procedures of our police department. They also went beyond their charge to offer their opinion on the outcome of the Silk Plant Forest case. That's not what we asked for. That wasn't their job. If you look at the makeup of the Silk Plant Forest Committee, I don't think you'll find experts on criminal process and law on that committee."

Following a press conference on the steps of City Hall at noon today, East Ward Councilman Derwin Montgomery issued a statement on the case. He noted that he was breaking tradition by publicly dissenting against the city's official position.

"Because this case is in the courts," Montgomery said in the statement, "some have stated that intervening is not the role of the city. I must beg to differ. This city, though the incompetent investigation lead by DR Williams and his questionable tactics, failed Jill Marker and Kalvin Smith in its investigation. I believe if this city has impeded justice, it must do everything it can to right such a wrong, no matter at what stage it intervenes, and it should not consider potential monetary liability."

Montgomery charged that the council "has failed its citizens by doing nothing because it sends a message that a person can be treated without regard by its police department, and the council, as the highest level of oversight, will not speak up."

Montgomery added that the "statement lacks council ownership, substance and only informs the public of what they already know... we have decided to do nothing. This statement also lacks any affirmation of the citizens review committee's 'vote of no confidence in the investigation.' Lastly, it further fans the flames of a lingering 'force of complacency' in this matter."

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