With Great Discretion Comes Great Responsibility

Brady Violations in the Story of Michael Sutton’s Wrongful Conviction.

Nikita Srivastava (’19)

Do you remember the day you finished high school? I want you to go back to that time. Imagine, you’re 17 years old again: You’re hanging out with your friends; you’re excited about the end of high school and the start of a new beginning.  Days before your graduation, you go out with your closest friends and stay out all night. You dance, laugh, and celebrate the first steps to a bright new future. For most of us, that celebration night ends with hugging good-bye, quietly sneaking into our houses without waking up our parents, and sleeping in the next day. For most of us, it’s a great night. And, for most us, the night does not end with us being arrested for an attempted murder we did not commit. Unfortunately, that is what happened to Michael Sutton.

On the night he celebrated finishing high school, Michael found himself with three of his closest friends being arrested. Instead of hugging their friends goodnight and returning to the comforts of their home, Michael and his best friends spent the night in jail for a crime they did not commit. Instead of going off to college and getting his degree in business, Michael was sentenced to 41 years to life in prison.

Michael’s Case

Michael’s case was referred to the Ohio Innocence Project (OIP) by the Wrongful Conviction Project of the Ohio Public Defender’s Office (WCP), who was representing Michael’s co-defendant – Kenny Phillips. The attorneys representing Kenny investigated both Michael and Kenny’s innocence claim. Throughout their investigation, they found two police officers who were there the night the attempted murder was committed. Both of these officers stated that neither Michael nor Kenny committed that crime. After discovering evidence of actual innocence, WCP referred Michael’s case to OIP.  Although WCP represents Kenny and OIP represents Michael, both entities work together on these men’s innocence claim.

I first met Michael in October 2017 while I was working on his case as an OIP fellow with Amona Al-Refaei. Amona was the first to review his file. After going through the trial transcripts and the evidence later obtained by his co-defendant, she believed in his innocence. I distinctly remember how upset she was that Michael’s life was taken away from him before it had even begun. Amona’s determination to have Michael’s story heard eventually led the charge to begin the long process of overturning Michael’s wrongful conviction.

After a four-hour drive to Lake Erie Correctional, I was excited to meet Michael. When we met, I noticed how passionate Michael felt about the people in his life. In fact, he, at the age of 32, had the energy of a recent high school graduate wanting to run into every challenge head-on. Michael clearly shared his story with us. He remembered important, yet tiny, details about that horrible night, which changed his life forever. His whole life revolved around that one night. Michael was emotional but articulate. I could tell he wanted to make sure we understood everything before Amona asked the next question.  He laughed when sharing fun stories about his high school days, and held back the tears when talking about his struggles. Prisoners are often dehumanized by our system, but Michael refused to be seen as anything other than human.

Michael’s Story

Days before his graduation, Michael and his friends were celebrating their last few days of high school. Michael was with his friends and other classmates at Club Modo in downtown Cleveland on the night of May 28, 2006. Michael had to a lot to celebrate that night: he was graduating with good grades and a full scholarship to  University of Akron to study business administration. Michael had no criminal record and had outstanding recommendations. He came from a loving and supporting high school that voted him most popular and funniest. In a nutshell, Michael was ready to start his bright future. Michael wanted to play sports and travel the world. However, he had no idea that one night out with friends would ruin his life forever.

While on the nightclub’s patio, Michael, along with his friends, witnessed Willie Wayne Moore being robbed in a nearby parking lot by a group of people from the King Kennedy Project. Michael knew Willie Moore because they grew up in the same neighborhood. Around 2 a.m., Michael left the club along with his friends – Kenny Phillips, Deante Creel, and Akeem Tidmore. Before heading home for the night in Michael’s Chevy Caprice, they decided to stop first at the Shell Station on Kinsman Road and East 55th Street. Across the street was the Marathon gas station, where it was common for people to go after the night clubs closed. Both the Marathon and Shell stations were crowded that night. While parked at the Shell gas station, Michael saw the same people who robbed Willie Moore at the Marathon station across the street. Michael left the Shell station with his friends and was driving when he saw Willie Moore in a gold Toyota driven by Moore’s brother, Jeffrey. While driving behind the golden Toyota, Michael saw Willie Moore’s arm reach out of the car window and aim a gun at a dark blue car. Then, Michael saw shots fired into the that car which injured both Christopher Lovelady and Michael Tolbert. After seeing gunshots, Michael tried to pull his car over so the police could pursue the shooter’s car; however, he realized that the officers were pulling him over instead. Michael and his friends were terrified. They had just witnessed a shooting and were now being pulled over by the police. Not knowing what to do, Michael decided to pull off onto a side street and exited his car with his arms up, making him the first to be arrested. The victims did not identify Michael or his friends as the shooter. One of the victims even gave a description of his shooter that did not match Michael.

On July 8, 2007, a jury convicted Michael and he was sentenced to 46 years of imprisonment. Kenny was also sentenced, while Deante and Akeem were acquitted of all charges. On direct appeal, the case was reversed in part and remanded for re-sentencing where Michael was resentenced to 41 years. He timely appealed, but the judgment was affirmed. The Ohio Supreme Court declined to accept jurisdiction. So Michael subsequently filed a federal habeas action seeking relief, but the petition was dismissed. Michael believed he exhausted all of his legal obligations but refused to give up hope.

After sharing his story, Michael stated, “I’m ready for this. Let’s do this. Let’s make this happen.” I giggled happily; Michael’s enthusiasm was contagious. After he signed a representation agreement, we expressed our excitement and dedication to his case.

Newly Discovered Evidence in Michael’s Case.

Officers Keane and Lentz testified at trial that Michaels’ co-defendants were shooting at them as they ran away. After Michael’s arrest, the area was sealed off as a crime scene and searched for hours by several officers. No guns, shell casings, bullets, or other physical evidence were recovered. Additionally, two other officers were at the scene as well, but their version of events that night differed significantly than the testifying officers. The other officers’ recollection aligns with Michael’s version of what happened that night. But, those officers never testified in court nor were their statements turned over to defense counsel.

Officer Jones and Officer Lundy were parked at the Marathon Station at the time of the shooting. According to Jones and Lundy, Officers Keane and Lentz were also at the Marathon station, contrary to their testimony at trial that they were behind Michael’s car. It was only after the shots, while Officer Jones observed two cars traveling at a high rate speed eastbound on Woodland, that Officers Keane and Lentz pulled out of the Marathon station and pursued Michael’s car. According to Officer Jones, Keane and Lentz were not in a position to see any shots fired. Jones recalls responding to the area where Michael pulled his car over. At no point did Jones hear additional shots, as claimed by Keane and Lentz.

Officer Lundy recalls that during the shooting, he and Jones were parked at the Marathon gas station at the Woodland Avenue and East 55th Street intersection. Officer Lundy heard shots and immediately called it in to dispatch. According to Lundy, he and Jones then helped apprehend the four suspects following a foot pursuit. Lundy also did not hear additional shots. However, Officer Lundy’s and Jones’ contradicting statements never made it into the courtroom. Michael’s attorney, Michael himself, nor the jury knew those statements existed. And, as a result, the jury convicted Michael.

Brady Violations.

The Brady doctrine is a pretrial discovery rule that was established by the United States Supreme Court in Brady v. Maryland (1963). The rule requires that the prosecution turn over all exculpatory evidence to the defendant in a criminal case. Exculpatory evidence is evidence that shows the accused may be innocent or contradicts the state’s case. Over the years, the United States Supreme Court has stated that prosecutors have a duty to turn over any, and all, evidence to the accused and the burden is not on the defense to seek out Brady material. Yet, Brady violations are still occurring.

In our justice system, prosecutors have a large amount of discretion. This means that they have the ability to either pursue charges or not. In our justice system, the prosecutor has all the power. However, with great discretion comes great responsibility. When any one person holds a position of power, our society places checks and balances. These checks and balances are in our workplace, our local government, our judiciary, and our President. The same applies to our prosecutors. And, the Brady rule is only one of those checks. But, why have Brady?

According to Mark Godsey’s book, Blind Injustice, tunnel vision has a large effect on prosecutors. When they come up with a theory, that is the only explanation of the case. Any evidence that contradicts their theory is easily explained away, seen as untrue, or disregarded. Brady reminds prosecutors that the accused is entitled to all the evidence – especially exculpatory evidence. This rule pulls prosecutors’ out of their narrow tunnels by reminding them that all the evidence must be shared with the accused. When prosecutors violate Brady, they not only hurt the presumption of innocence and violate the constitutional right to a fair trial, but more importantly, they break the public’s trust to seek justice.

First, the United States is one of few countries that presumes the accused is innocent until proven guilty. Our justice system requires prosecutors to prove guilt beyond a reasonable doubt, which is one of the highest burdens in our legal system. A jury cannot convict the accused if that burden is not met. But, why have such a high burden? The answer is simple: someone’s liberty is at stake. If found guilty, the accused is convicted and sentenced. That is why the accused is entitled to all the evidence collected against them, which includes written and oral statements made by all police officers involved in the investigation.

Second, anyone accused has a constitutional right to confront all evidence presented against him or her. Our federal constitution guarantees this right under the Confrontation Clause of the Sixth Amendment. This right allows the accused to have a fair trial. But, why do we have this right? The answer is simple: someone’s liberty is at stake.

Finally, American citizens rely on prosecutors to serve justice and protect the public. We expect the prosecutors to do so by following the rules and laws placed upon them. When Brady violations occur, our trust is broken. Regardless of the accused’s guilt or innocence, the public’s trust is very important. We expect our protectors to serve justice fairly – not sneakily. Knowledge is power, but withholding knowledge keeps that power intact. In criminal cases, prosecutors have a lot of knowledge which gives them a lot of power. But when the public is lied to because crucial information was not shared, the belief in our justice system crumbles. Why do we care about prosecutorial conduct? The answer is simple: someone’s liberty is at stake.

The Evidence Withheld in Michael’s Case.

Michael’s case demonstrates how the prosecutors’ unchecked power leads to wrongful convictions. In his case, two police officers recalled the entire night differently than the officers called to testify. Officers Jones and Lundy even shared their story with the prosecution, but they were never asked to testify. During Michael’s evidentiary hearing on his Motion for Leave to File a Motion for a New Trial, the prosecutors argued that Officer Jones and Lundy were on the witness list, thus satisfying their disclosure requirement. However, the Ohio Innocence Project disagreed by arguing that the law states if the prosecution withheld multiple pieces of favorable evidence that, taken together, undermine confidence in the verdict then the accused is entitled to a new trial (Kyles v. Whitely). Furthermore, the defense attorneys at the time of trial did not know that Officer Jones and Lundy recalled the events differently because their statements were never presented to defense counsel.

Michael’a motion for a new trial motion has been denied by the Cuyahoga County Court. OIP has filed a notice of appeal on Michael’s behalf and a briefing schedule has been set. However, Michael has not given up hope. He advocates for himself by sharing his story online.  His family continues to hold up his torch by organizing events and petitions to bring awareness to his wrongful conviction. Along with many others, Michael’s family protests his wrongful conviction. His family spends countless hours fighting for his freedom and praying for the day he comes home a free man. Michael also takes the time to read about the law relating to his wrongful conviction. He told me once, “Nikita, I’m reading everything about Brady violations in here.” Michael also told me that he’s grateful to his family, his faith, and OIP who continuously fight for him every day.

Michael’s case represents how prosecutors’ tunnel vision can incarcerate two innocent men. His case demonstrates why we, as a society and future advocates, need to shine a light on prosecutorial misconduct; why we need to remind prosecutors that with great discretion comes great responsibility. Michael’s conviction relied solely on the testimony of bias officers, and his innocence relies on the testimony of two officers who know the truth. Hopefully, the judge will a make ruling that will correct the injustice created by Michael’s conviction.

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Click here to learn more about Michael’s case.