WS Chronicle

March 7, 2016 Concerned Students for Kalvin Micheal Smith Winston-Salem, NC 

Mr. Roy Cooper Attorney General of North Carolina 

9001 Mail Service Center Raleigh, NC 27699

Dear Attorney General Cooper:

We have worked tirelessly in recent months to bring together students from Wake Forest University, Winston-Salem State University and Salem College to do what you have actively refused to do for the past eight years:  to publicly declare our outrage at the failure of our criminal justice system in keeping Kalvin Michael Smith wrongfully incarcerated for the past 19 years. Today, we are delivering the banner, originally presented at the February 18 WSSU rally, which has now been signed by over 200 college students. Through the rally, through this banner, through social media, and ultimately through their votes, hundreds of students are calling on you, Mr. Cooper, to join Kalvin Michael Smith’s defense counsel in petitioning the Superior Court to vacate Kalvin’s 1997 wrongful conviction.

For too long you have been silent about the injusice facing Kalvin Michael Smith, a working-class black man who has served 19 years in prison for a crime he did not commit. Your unwillingness to get involved demonstrates how you are ignoring the African-American community, which has largely remained supportive of you despite your lackluster record of supporting them.

Attorney General Cooper, you have the power to review the case, to review former FBI Assistant Director Christopher Swecker’s report, and to join the defense counsel, Duke University Professor James Coleman Jr., in a motion to vacate the conviction.

Our state is extensively aware, Mr. Cooper, that you formerly entrusted FBI Assistant Director Christopher Swecker in 2010 to audit thousands of cases from the SBI Forensic Lab.  And when Mr. Swecker’s investigation reported over 200 cases of malfeasance that violated the constitutional rights of defendants, you followed his recommendations. However, in Kalvin Michael Smith’s case, you have actively ignored Mr. Swecker’s review, refusing to even meet with him.

According to the NC Bar Code of Ethics (Rule 3.8) ” … a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”  We believe that prosecutorial ethics require you, Mr. Cooper, to meet with former Assistant FBI Director Christopher Swecker and to acknowledge the truth that his review uncovered, and to meet with Lt. Joseph Ferrelli and Sgt. Chuck Byrom, who spear-headed the Silk Plant Forest Citizen Review Committee.  These two independent reviews by law enforcement professionals came to a consensus: they hold no confidence in the police investigation that led to Kalvin Michael Smith’s conviction.  Mr. Swecker further concluded, “Only a new trial that considers the full record and evidence not available, misrepresented or omitted in the original trial will provide the full measure of justice that the Community of Winston-Salem and every accused defendant deserves.” (Swecker Report, p. 17).

We and a growing populace of North Carolinians are keenly aware that Kalvin’s wrongful incarceration is not an isolated injustice, but a result of the racially charged politics and corruption surrounding our criminal justice system. There is a growing consciousness in our country, particularly because of the efforts of the Black Lives Matter movement, that justice today is indeed still not blind when it comes to skin color.  This was again affirmed in our own state this past week with the release of Howard Dudley, a black man wrongfully incarcerated for 23 years. In fact, we had an opportunity to sit down this past week with Alicia Garza, co-founder of the Black Lives Matter movement, to discuss Kalvin’s denial of freedom and to strategize ways that the larger BLM movement might support our efforts in upholding the justice that you are denying him and our community. As Ms. Garza shared one night during the weeklong seminar she taught on non-violent social change, “Silencing around race is what perpetuates racism.” And Mr. Cooper, for far too long you have remained silent about the racial dis-parities and discrimination in our criminal justice system.

According to data from the NC Commission on Racial and Ethnic Disparities in the Criminal Justice System, during your tenure, black and Latino drivers have remained twice

as likely as white drivers to be searched after a traffic stop, and African-Americans make up 57 percent of the prison population, but only 22 percent of the general population. And then there are more specific incidences of your failings to uphold justice for communities of color, such as the 2013 shooting of Jonathan Ferrell, an unarmed black male college student, by Charlotte officer Randall Kerrick. When the jury failed to reach a verdict, you made the unconscionable deci-sion to not retry the case. This far cry from justice yet again demonstrated that to you, Mr. Cooper, black lives do not matter.

The citizens of North Carolina and black voters especially expect more of you, Mr. Cooper.  Your decision to defend Smith’s conviction, and your more recent decision to actively ignore even substantively commenting on it, is at best cowardice, and at worst a deceptive denial to uphold your oath of office.  Your refusal to even meet with former FBI Assistant Director Christopher Swecker conveys the message that a black man’s life isn’t worth your time or effort.  You did not hesitate to intervene, investigate, and exercise your prosecutorial discretion in the 2006 Duke Lacrosse case to dis-miss the wrongful charges your tenure, black and Latino drivers have remained twice as likely as white drivers to be searched after a traffic stop, and African-Americans make up 57 percent of the prison population, but only 22 percent of the general population. And then there are more specific incidences of your failings to uphold justice for communities of color, such as the 2013 shooting of Jonathan Ferrell, an unarmed black male college student, by Charlotte officer Randall Kerrick. When the jury failed to reach a verdict, you made the unconscionable deci-sion to not retry the case. This far cry from justice yet again demonstrated that to you, Mr. Cooper, black lives do not matter.

The citizens of North Carolina and black voters especially expect more of you, Mr. Cooper.  Your decision to defend Smith’s conviction, and your more recent decision to actively ignore even substantively commenting on it, is at best cowardice, and at worst a deceptive denial to uphold your oath of office.  Your refusal to even meet with former FBI Assistant Director Christopher Swecker conveys the message that a black man’s life isn’t worth your time or effort.  You did not hesitate to intervene, investigate, and exercise your prosecutorial discretion in the 2006 Duke Lacrosse case to dismiss the wrongful charges against three affluent white men. Yet Smith, a working-class black man, is seemingly underserving of your heroics.

We are committed to holding you, Mr. Cooper, accountable for the ethical obligations of your office, as we are aware of both your capacity and responsibility to act.  No longer can you claim to be the courageous crusader for systemic criminal justice reform while continuing to defend the wrongful incarceration of Kalvin Michael Smith.  We are calling on you, Mr. Cooper, to uphold the oath of your office in seeking justice and truth: Justice for Kalvin, who has remained wrongfully incarcerated for 19 years, justice for Ms. Jill Marker, whose actual attacker has still not been held accountable, and justice for the citizens of North Carolina, whose tax dollars have paid to keep this innocent man in prison.

Leaders of the Concerned Students for Kalvin Michael Smith are, Hayden Abene, who is a student at Wake Forest University; Jaylon Herbin, who is a student at Winston-Salem State University; and Virginia Parnell, who is a student at Salem College.