Commentary: Mr. Cooper, end your obstruction of justice

Virginia Parnell/Jet Hollander

Guest Columnists

We, the Silk Plant Forest Truth Committee and Concerned Students, call on North Carolina Attorney General Roy Cooper to end his consistent, knee-jerk reactions that prevent every effort made for a court to learn the true facts of the wrongful 1997 conviction of Kalvin Michael Smith. Not only should Cooper not oppose Kalvin’s recently-filed petition, Cooper should join in it.

Background:  On Friday, March 11, attorneys for Kalvin Michael Smith petitioned the North Carolina Supreme Court to instruct the Forsyth superior court in its review of a particularly ugly episode in the long-running Silk Plant Forest case.  At issue is the creation of a false affidavit by local prosecutors and its subsequent use by state and local prosecutors in 2008 and 2009.  Though he tries to hide in this matter, Attorney General Roy Cooper is at the center of this now.

According to the petition’s attached transcription of a November 7, 2014 conference in a Forsyth superior court judge’s chambers, the judge was about to order a hearing on the matter until Cooper’s prosecutors told the judge, “Depending on which witnesses (Kalvin’s lawyers) are going to call, we may need to get out of the case.”

In other words, Cooper’s prosecutors admitted to the judge that they would likely be called to testify on what they knew about how the false affidavit was used against Kalvin.  When the judge heard that, he abruptly shut down further review. Kalvin’s petition asks the N.C. Supreme Court to order the hearing. Cooper’s prosecutors must not continue to oppose (as they have to date) holding an evidentiary hearing in which they admit they are likely to be called as fact witnesses.

Neither Cooper’s lawyers nor anyone else has denied the affidavit was materially false, or that prosecutors used it against Kalvin in various ways. Indeed, it is public record that the false affidavit was used to influence WSPD detectives reviewing the case, a city council empaneled review committee, and Christopher Swecker, the former Assistant FBI Director independently reviewing the case. Though Cooper’s lawyers repeatedly argue the false affidavit itself was not used in court, they have never denied that it was used to prepare witnesses who testified in court or used with members of the court. Cooper’s lawyers admitted to a conflict of interest on November 7, 2014, and those same attorneys have been actively working on the case, under Cooper, against Kalvin Michael Smith, possibly protecting themselves from exposure of their misconduct.

The issue now:  If Cooper’s prosecutors engaged in no misconduct, the evidentiary hearing will lift the cloud over his office.  But if Cooper’s prosecutors or local prosecutors unlawfully used the false affidavit, let the full truth be known and justice result.  Cooper should also repudiate and discipline local prosecutors for procuring and filing the false affidavit in the first place.  Mr. Cooper must stop hiding behind his staff attorneys and his press spokesperson, who has argued, “Our office has a duty to represent the state in this particular matter. ”Actually, in opposing a court’s review of how prosecutors procured and used the false affidavit, Mr. Cooper is expending tax-payers’ resources to shield his prosecutors.

Cooper’s spokesperson further disingenuously argues, “No court has found cause to overturn the conviction despite numerous appeals.”3 Cooper’s spokesperson conveniently omits that since taking the case in 2008, due to allegations of misconduct against local prosecutors, Cooper’s office has vigorously opposed Kalvin’s every appeal, arguing procedural technicalities to avoid a court’s honest and open review of the facts.  Cooper portrays himself as an innocent bystander as he champions injustice and protects impropriety in this case – thus far succeeding.  We note that no fewer than forty-four judges denied the late Darryl Hunt’s appeals – an innocent man to whom, like Kalvin, no physical evidence of the crime was ever linked. Cooper’s cynical abuse of the state resources and the courts must stop now!  If he once again reflexively opposes Kalvin’s latest North Carolina Supreme Court motion, it will tell the courts and the public all they need to know about Cooper’s motivations.  Attorney General Cooper, join in Kalvin’s petition; do not oppose it. Let the courts and the public know the facts of Kalvin’s wrongful conviction.

For more information: Jet Hollander, Co-chair, Silk Plant Forest Truth Committee 

jet@pre-eminence.com Tel: 336-760-3369 or Virginia Parnell Concerned Students 

virginia.parnell@salem.edu 910-876-5520 

Addendum:

“Only a court of law—not the attorney general—can release Kalvin Smith from prison. Attorney General Roy Cooper met with local ministers concerned about the case this afternoon, and our office has previously reviewed the independent report and discussed it with Mr. Swecker. While we agree that there are systemic issues in the criminal justice system that must be addressed, our office has a duty to represent the state in this particular matter and no court has found cause to overturn the conviction despite numerous appeals. 

Noelle Talley

Public Information Officer

Attorney General Roy Cooper

N.C. Department of Justice

Desk: (919) 716-6484 After hours: (919) 218-1255

email: ntalley@ncdoj.gov

www.ncdoj.gov”

1 Transcript of in camera Meeting at 75, State v. Kalvin Michael Smith (Nov. 7, 2014) (97 CRS 6593-94). Filed with the petition

2 Press statement Mr. Cooper’s spokesperson issued Wednesday afternoon, February 10, 2016 (See addendum for full statement).