IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA KALVIN MICHAEL SMITH, Petitioner

v. TODD PINION, Respondent. MOTION TO APPEAR AS AMICUS CURIAE AND REQUEST FOR JUDICIAL NOTICE NOW COMES the Silk Plant Forest Truth Committee (SPFTC), a local group of concerned citizens of Winston-Salem, North Carolina, and moves the Court for permission to file a Request for Judicial Notice as amicus curiae in the above captioned case on the grounds set forth below. AUTHORITY FOR PARTICIPATION AS AMICUS CURIAE Parties in interest in the federal courts may, at the pleasure of the court, be permitted to appear as amicus curiae when they do not qualify to intervene as of right. See, e.g., Diamond et al. v. Charles et al., 476 U.S. 54, 78 (1986). Since an amicus does not represent the parties but participates only for the benefit of the court, it is solely within the discretion of the court to determine the fact, extent, and manner of participation by the amicus. Northern Securities Co. v. United States, 191 U.S. 555, 24 S. Ct. 119 (1903). The granting or refusal of applications for appointment as amicus curiae is always discretionary. Ginsburg v. Black, 192 F.2d 823, 825 (7th Cir. 1951).

Civil Action No. 1:10-cv-00029

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The term amicus curiae is old Latin that means a friend of the court. United States of America v. Omar Alkaabi, a/k/a Omar AlAKaabi; United States of America v. Tarik I. Alsugair, 223 F. Supp. 2d 583, 592, citing 20A James Wm. Moore, Moores Federal Practice 329.11 (3d ed. 2002). The classic role of an amicus curiae is to assist in a case of general public interest and to draw the courts attention to matters that might otherwise escape consideration. Id. An amicus curiae is not a party to the litigation, and therefore does not necessarily represent the views or interests of either party. Jesse C. Alexander et al. v. William S. Hall, et al., 64 F.R.D. 152 (D.S.C. 1974), citing Brown v. Wright, 137 F.2d 484 (4th Cir. 1943). The SPFTC represents to the Court that its limited participation will not prejudice any party nor delay the hearing on this matter. The submitted material does not directly support either partys position in the case, but the SPFTC believes that it is highly relevant to Plaintiffs habeas petition, and so believes the Court may be substantively informed thereby. Furthermore, the SPFTCs interest in the matter rests on its stated objectives of an open, accountable criminal justice system, and public interest therein. THE SILK PLANT FOREST TRUTH COMMITTEES INTEREST IN THIS MATTER About the Silk Plant Forest Truth Committee The SPFTC is a highly diverse group of Winston-Salem citizens, comprised of men and women of widely varying racial, religious, political, and socio-economic backgrounds. The SPFTC has no ideological or political agenda, and is not associated with any candidate, party, or policy cause. The sole purpose of the group is to have the 2
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facts of one specific case, the Silk Plant Forest case (Kalvin Michael Smith v. Todd Pinion, File #1:10-cv-00029), made public in order to assure public safety and to preserve the integrity of the justice system. The SPFTC has no relation to the city council empanelled Silk Plant Forest Citizens Review Committee. The SPFTC is neither affiliated with, nor an advocate for, any litigant or party in this matter, including Ms. Marker, Mr. Smith, or the Duke University Law School Innocence Project. Except for Ms. Marker, who is faultless and has suffered greatly and merits heartfelt sympathy, the SPFTC neither supports nor opposes any person or party per se in this matter. As an impartial non-party to this action, the SPFTC does not seek to argue the law or the facts on behalf of either party. Instead, the Committee seeks only to bring the Courts attention to an independent, publicly available review of the investigations in this matter. About this Motion Pursuant to Local Rule 7.4, the SPFTC would inform the court of the following: Preparation of Mr. Sweckers Report was funded in advance of investigation and preparation by the SPFTC. Preparation and filing of the present Motion was funded by a modest fee paid by the SPFTC. The SPFTC would assert, on knowledge and belief, that no party to this action provided funding or support for the preparation and filing of this Motion, nor for the preparation of the accompanying report. REQUEST FOR JUDICIAL NOTICE OF INDEPENDENT REPORT Pursuant to Rule 201 and Article VII (in particular, Rule 702), of the Federal Rules of

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Evidence, the SPFTC, as amicus curiae, would ask the Court to take notice of the existence of an independent review of the investigation of the instant case. Specifically, the SPFTC would draw the Courts attention to an independent report prepared by Mr. Christopher Swecker. Christopher Swecker is a 24-year FBI veteran and the former FBI Assistant Director in charge of the bureaus Criminal Investigation Division. About Mr. Swecker Christopher Swecker is a 24-year FBI veteran and the former FBI Assistant Director in charge of the bureaus Criminal Investigation Division. At the time of his retirement in July 2006, Mr. Swecker was the acting Executive Director in charge of eight FBI divisions, comprising approximately 6,000 FBI agents and employees. He oversaw the investigations that led to the capture of top-ten fugitive Eric Robert Rudolph and the dismantling of the Charlotte, North Carolina Hezbollah terror cell. North Carolina

Attorney General Roy Cooper engaged Mr. Swecker to conduct a review of the SBI Crime Lab, which revealed serious deficiencies and led to reform of the lab. Mr. Swecker is a graduate of Appalachian State University, Wake Forest University Law School, and was first in his class for academics and fitness at the FBI Academy. Mr. Sweckers biography is attached herewith as Exhibit B. Motivation for the Independent Report In 2007, the Winston-Salem City Council empanelled the Silk Plant Forest Citizens Review Committee (SPFCRC). After an 18-month review staffed by two veteran

Winston-Salem Police Department (WSPD) detectives, the SPFCRC concluded that it did

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not have confidence in the original investigation or its results, and voted 7 to 2 that they found no credible evidence that Kalvin Michael Smith was at the scene on the date of the crime. Eighteen months later, the senior leadership of the WSPD dismissed all of the key findings of the Citizens Review Committee Report. In 2010, after the senior leadership of the Winston-Salem Police Department dismissed all the key findings of the Silk Plant Forest Citizens Review Committee, a broad and diverse cross-section of Winston-Salem citizens calling themselves The Silk Plant Forest Truth Committee engaged Mr. Swecker to independently review the investigation (and prior reviews of it) and provide them with his independent opinion. The questions the SPF Truth Committee asked Mr. Swecker are found in his report. Mr. Swecker was not asked to render an opinion on whether Kalvin Michael Smith was in fact innocent or guilty. Mr. Sweckers report was made publicly available on the Internet in 2009, and is available at http://www.silkplantforest.com/images/CS_Legal_Review_Final_PDF.pdf. For the Courts convenience, a copy is included herewith as Exhibit A. Key Conclusions of the Report The following are summary highlights of Mr. Sweckers conclusions: [Mr. Sweckers independent review] fully agrees with the Resolutions and Findings of the Silk Plant Forest Citizens Committee and its recommendations. (Exhibit A, p.17.) It is the opinion of this reviewer that due to the flawed nature of the original

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investigation 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 the Community of Winston-Salem and every accused defendant deserves. (Id.) Finally, this review does not advocate yet another full reinvestigation of the case. (Id., fn 22.) CONCLUSION For these reasons, the SPFTC respectfully requests that the Court take judicial notice of the existence of an independent report reviewing the integrity of the investigation(s) in the matter of Kalvin Michael Smith v. Todd Pinion, File #1:10-cv-00029, which is attached hereto as Exhibit A. Respectfully submitted the 19th day of July 2012.

Richard J. Rutledge, Jr., N.C. Bar #38810 301 North Main Street, Suite 2503 Winston-Salem, NC 27101-3835 ! (336) 283-0284 ! (336) 458-4008 Rick@RickRutledgeLaw.com Attorney for Amicus Curiae Silk Plant Forest Truth Committee

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA KALVIN MICHAEL SMITH, Petitioner v. TODD PINION, Respondent. CERTIFICATE OF SERVICE This is to certify that the undersigned has this date served the foregoing document in the above-captioned action upon all other parties to this cause by filing with the Electronic Case Filing system for the Middle District which, on information and belief, will notify all required parties. This the 19th day of July 2012.

Civil Action No. 1:10-cv-00029

Richard J. Rutledge, Jr., N.C. Bar #38810 301 North Main Street, Suite 2503 Winston-Salem, NC 27101-3835 ! (336) 283-0284 ! (336) 458-4008 Rick@RickRutledgeLaw.com Attorney for Amicus Curiae Silk Plant Forest Truth Committee

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