Kit Martin vs. the Commonwealth of Kentucky

When I turned in the manuscript for I Will Ruin You, the Kentucky Supreme Court had not yet ruled on Kit’s appeal. I had read the appeal and had some serious concerns about its chances of leading to a new trial. Ultimately, I decided there was no benefit in addressing those concerns in the book.

As it turns out, my concerns were valid. The appeal was Kit’s one and only chance to point out the many problems with the trial and several controversial rulings by Judge John Atkins. While the appeal succeeded in highlighting a number of salient points, it failed to focus on the numerous errors and deceptions made by the prosecution. There were also several factual errors that, at the very least, demonstrated that the appeal attorneys did not have a solid grasp of the facts of the case.

Example one. The following statement appears on Page 6 of the appeal.

Although the car had been severely burned, hairs were collected for forensic testing.

The appeal attorneys wrongly state that hairs were collected from Pam’s burnt car. The hairs were retrieved from Ed Dansereau’s car.

Also on page 6 is this statement.

Cal was found dead in the cellar, from a .45 caliber gunshot wound.

Cal was shot five times.

On page 10 of the appeal there is information related to the condition of Pam’s phone when it was turned into the AT&T store.

When Joan Harmon turned the phone into the ATT store, the phone had been returned to factory settings.

It would have been helpful had the appeal attorneys mentioned that there was testimony that indicated that one way that the phone could have been restored to its factory settings was by repeated attempts to try and unlock the phone. Why would someone who found a phone in their front yard be so obsessed with trying to get into it that they would end up restoring the phone to the factory settings?

On page 16 of the appeal, the appeal attorneys try to question the finding of a CD by Pam Phillips after the murders.

Matt Phillips, Cal and Pam’s son, testified that Diana, Cal’s sister, had seen the disk labeled Top Secret and gave it to Detective Noisworthy, after Cal and Pam Phillips were killed. In closing, the government said Cal had turned over the evidence. The court’s decision to quash the subpoenas resulted in a windfall for the prosecution. Joan could have impeached witnesses about the laptop and CD.

The way it is written suggests that there was something improper with the finding of this disc. In reality, the CD had no significance because it was found in a rental unit that Joan had stayed in for a brief time. Joan could not have impeached any witnesses concerning this disc.

The appeal wrongly states on page 20 that Calvin Phillips owned a Glock 45.

Joan had lived in Pembroke for several years. She, Cal and Pam Phillips were friendly. Joan knew that Pam left early for work. Joan had shot targets in Cal’s backyard. Ostensibly, she knew that she could find .22 and/or .45 casings around the target area. She knew Cal had a Glock .45

Calvin Phillips did not own a Glock .45.

During the trial, defense attorney Tom Griffiths erred in trying to impeach Steven Durham’s testimony about a message he supposedly had delivered to EJ after Kit’s arrest. Tom had mistakenly confused Steven Durham with his dad, Steve Durham.

Steve Durham was a friend of Cal’s and a prosecution witness. The trial court allowed defense counsel to cross Steve Durham regarding his relationship with Joan Harmon. Durham replied that he knew who she was but he didn’t consider her a friend. Durham also said he didn’t remember giving a message from Joan to Elijah about the murders. However, the court would not allow counsel to ask Durham about what the message was because counsel was not going to “backdoor her statement into this case.” The message could have been another statement against Joan’s or Elijah’s penal interests.

The appeal attorneys made the same mistake as the defense attorneys even though it was corrected at trial.

While the errors mentioned above are not egregious, and it could be argued that correcting them may not have had any material effect on the Supreme Court’s ruling, what concerns me the most is what is not in the appeal.

• No mention of Scott Smith’s false testimony to get an indictment.
• No mention of the plea offer turned down by Kit
• No mention of the prosecution’s attempt to mislead the jury by showing them edited clips of Kit’s security camera footage.
• No mention of Kit’s alibi witnesses
• No mention that the metal combination of casing and firing pin of the recovered shell casing was not the right combination for the specialized G2 Research RIP rounds.
• No mention of the many errors of fact and her total mischaracterization of the evidence during Barbara Whaley’s closing argument.
• No mention of the improbability of the prosecution’s theory of the crime, which had not been presented to the jury until the last day of the trial during Barbara Whaley’s closing argument, and which she also never described it to the jury but instead included it as part of a PowerPoint presentation.
• No mention that even the prosecution admitted in a hearing held after closing arguments that there was circumstantial evidence that more than one person was involved in the murders.

I understand that the appeal is primarily focused on legal errors. The appeal did argue that Judge Atkins had ruled incorrectly concerning hearsay evidence and for allowing Joan and EJ to plead the fifth outside of the jury. They wrote this in the conclusion section.

The Court denied Mr. Martin his rights to confront the witness against him, to due process, to present a complete defense and to be free from cruel and unusual punishment under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§2, 7, 11, 17, and 26 of
the Kentucky Constitution. Christian Martin requests a new trial.

However, there is also an introduction section where the appeal authors give a narrative of the crime. The missing information could have been added or included in another narrative section explaining what happened at trial.

From 2012 until his guilty verdict in 2021, Kit had dealt with more attorneys than could fill an incoming class of lawyers to law school. He had depleted his savings. He had told his story repeatedly to a revolving door of attorneys, some who listened and gave expert counsel and others who saw Kit as just another case. I am confident that those representing Kit now are taking the time to listen.