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Kenny Phillips, Michael Sutton found not guilty in attempted murder retrial in 16-year-old case

phillipssutton_verdict.jpg
Matthew Richmond
/
Ideastream Public Media
Michael Sutton, second from left, hugs his attorney Justin Herdman and Kenny Phillips, seated at table fourth from right, cries with his attorney, Diane Menashe, after the not guilty verdict was read.

The jury in the retrial of Kenny Phillips and Michael Sutton, two men convicted of multiple counts of attempted murder in 2007, returned a verdict of not guilty on all counts Tuesday, in a case that rested largely on the credibility of Cleveland homicide detective Daniel Lentz and Sergeant Michael Keane.

The not guilty verdict Tuesday morning in the courtroom of Judge John P. O’Donnell was met with tears from Phillips, Sutton and the dozen or so of their family members and friends who had filled the courtroom each day of the weeklong trial.

“When you got a jury stacked up against you and got a police officer on the stand, you expect the police officer to do the right thing,” Michael Sutton said outside the Justice Center Tuesday about Lentz, who was a patrol officer at the time of Sutton’s arrest. “He needs to be investigated. He lied. It’s clear-as-cut day. He didn’t care about our life. He threw our life away.”

Early in the morning of May 29, 2006, Sutton and Phillips, along with Deante Creel and Akeem Tidmore, were traveling in a car on Woodland Avenue near the 5-way intersection with East 55th Street and Kinsman Road on Cleveland’s East Side.

Lentz and his partner, Keane, testified in 2007 and again at the retrial that they saw Sutton’s Chevy driving recklessly and started to follow it right before the shooting. They claimed to have heard a single gunshot as they were turning onto Woodland, then saw the Chevy pull up next to the victim’s car. They testified to seeing an arm reach out of the Chevy’s passenger side window and fire multiple shots into the car.

In their 2007 trial, Sutton and Phillips were found guilty based primarily on Lentz and Keane’s testimony. Sutton received a 46-year sentence, Phillips’ was 92 years. Phillips was originally convicted of also shooting at Lentz during a foot pursuit following the first shooting.

The prosecution was never able to produce a gun or any shell casings from the site of either shooting. There were no witnesses that confirmed Lentz and Keane’s version of events, despite the crowd that had gathered at the corner of 55th and Woodland prior to the shooting.

The detective who followed up, retired Cleveland police detective Carl Hartman, never secured footage from the cameras at the corner of 55th and Woodland or interviewed witnesses, besides police officers. During the retrial, the defense presented evidence that a photo of a gold car travelling away from the scene at 80 miles an hour right after the shooting was received by Hartman and labeled as a suspect’s car. Hartman said he did not fully investigate that lead either.

A gun shot residue (GSR) test performed on Sutton’s car and Phillips’ hand came up positive. But it came out in retrial that the state’s laboratory no longer performs GSR tests on the outside of cars because residue from brake pads can produce false positives. Also, the Cleveland detective who collected the samples from Phillips had a well-documented history of collecting contaminated samples.

Statements gathered by defense investigators from two fellow officers near the shooting that night led to the overturning of the convictions by the 8th Ohio District Court of Appeals, which ruled that evidence had been withheld from the defense at trial.

Former Cleveland police officer Gregory Jones signed an affidavit in 2015 that said Lentz and Keane could not have seen the shots fired based on where they were that night.

Jones and John Lundy, the other officer who signed an affidavit contradicting Lentz and Keane, said they were at the Marathon gas station at the corner of East 55th and Woodland because a large crowd had gathered there.

They said they saw and spoke with Lentz and Keane at the gas station and heard the gun shots. According to their sworn statements, Lentz and Keane were not in a position where they could have seen the shots fired into the victims’ car. They said they also did not hear any gun shots during the subsequent foot pursuit.

Jones was convicted of kidnapping and rape in 2014. He’s nearing the end of a 9 year prison sentence. While his and Lundy's conflicting statements were a crucial part of the decision to overturn the original conviction, neither testified in the retrial. The defense rested without calling any witnesses.

“We need to really start understanding that [Cuyahoga County Prosecutor] Mike O’Malley had every opportunity to dismiss this case and do the right thing. He repeatedly refused,” said Menashe after the verdict. “And Lentz and Keane, they doubled down. They doubled down in the wake of innocent men being incarcerated, without any concern. And it was really gross to watch.”

Cuyahoga County Prosecutor Michael O’Malley’s office said through an e-mailed statement that they decided to go ahead with the retrial because the victims, Tolbert and Lovelady, “deserved their day in court.”

“There was evidence in this case that the State was duty-bound to present to a jury, and we respect the jury's decision,” said the statement from spokesperson Lexi Giering.

Giering did not respond to a question about whether the jury’s decision will affect Lentz’s future as a trial witness.

Beginning with jury selection, both sides made it clear that the testimony of a single witness – Lentz - would be critical. During closing arguments Monday, Sutton’s attorney, Justin Herdman, attacked his credibility.

“Daniel Lentz contradicts Daniel Lentz,” said Herdman, a partner at Jones Day and former U.S. Attorney for the Northern District of Ohio.

Herdman was referring to discrepancies between Lentz’s testimony in 2007 and in the retrial – that he saw gun shots from the car Phillips, Sutton and two other men were traveling in fired into the car where Kenneth Tolbert and Christopher Lovelady were seriously injured on May 29, 2006 – and what Lentz is heard saying on police radio recordings played in court during the retrial – that right after the shooting he didn’t know where the shots were directed toward.

“And that ladies and gentlemen means that his testimony is not just not credible but that he lied to you,” Herdman said.

Assistant Prosecutor Gregory Paul started jury selection by asking prospective jurors whether they could convict based on the testimony of one witness, referring to Lentz.

During his closing argument, Paul said Lentz and Keane, who confirmed much of Lentz’s story, ran into harm’s way that night and can’t be expected to remember every detail of the night.

He also said the state didn’t need to show why Phillips and Keane shot Tolbert and Lovelady.

“It bears repeating what happened once more, that these officers saw this crime occur right in front of them,” Paul said. “No one has any axe to grind with any defendant at this table. They’re passionate about what they did and what they saw and what they testified to because they know that’s what they saw.”

After the not guilty verdict was read, Phillips, Sutton and their supporters carried a celebration out into the hallway of the 18th floor of the Justice Center and eventually down into the 1st floor lobby.

Phillips said he planned to get a fresh start outside of Cleveland. Sutton wasn’t sure what would be next for him.

“I’ve just been waiting to clear my name for so long,” said Sutton. “It’s been ongoing for so long, I just had to get to this point.”

Matthew Richmond is a reporter/producer at Ideastream Public Media who focuses on criminal justice.