The Kentucky Supreme Court issued its decision today on Kit’s appeal and upheld the original conviction. While this is terrible news for everyone supporting Kit, I want to offer a glimmer of hope. I’ll start with a quote from the book A New Earth by Eckhart Tolle:
Some changes look negative on the surface but you will soon realize that space is being created in your life for something new to emerge.
Echart Tolle
You can read the entire decision here. I’m not a lawyer, so any errors in this post are mine only. Of the arguments made in the appeal, only the arson convictions were overturned. It has little to no effect on Kit’s sentence for the more serious charge of murder. The Supreme Court ruled that the Commonwealth did not provide evidence that any of the victims were still alive when the alleged arsons took place.
The written decision begins with a recounting of the facts of the case. There are several errors in this section of the decision. One error concerned the time when Pam received a call from the delivery truck driver. In the decision, they have Pam receiving the call around noon. It was closer to 10:50 a.m. The decision also states that Pam had ordered the washing machine. Matt Phillips purchased the washing machine as a wedding anniversary gift. In the decision, the Supreme Court mentions that forensic testing of the recovered bullet fragments from both victims was inconclusive. They failed to mention that the recovered shell casing consisted of a different metal combination than the combination typically found on the RIP 45 caliber bullet. The Supreme Court also made a misleading statement regarding the security cameras installed by Matt and Diana.
Following the murders, the Phillips’ son, Matt Phillips, and his aunt, Diana Phillips, installed cameras and otherwise secured the Phillips’ residence.
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What’s missing from the above statement is the timing of when the cameras were installed. The statement implies that the cameras were installed shortly after the murders. The cameras weren’t installed until several weeks after the murders. Kit’s defense was that the evidence used against him had been planted. By implying that the cameras were installed shortly after the murders, they are, in effect, nullifying any arguments that the shell casing could have been planted after the murders.
The Supreme Court next tackled the question of Joan and EJ pleading the fifth. The appeal argued that by not having Joan and EJ take the stand the court denied Kit his right to present an alternate perpetrator defense. The Supreme Court stated that Kit’s defense team was still able to mount an alternate perpetrator defense through the examination of other witnesses. The problem here, though, is that the jury never got to hear from Joan or EJ. Even if it was to invoke the fifth, Kit deserved the right to confront the people he believed were responsible for the crime.
The next item to tackle involved the hearsay testimony from four different witnesses. For this complicated issue, The Supreme Court had to bend themselves into pretzels in order to affirm the lower court’s ruling. For one, they agreed with the lower court that statements made by Calvin to others were admissible because of forfeiture by wrongdoing. In other words, Kit killed Calvin to prevent his testimony in the court-martial, and therefore, he can’t benefit from his own actions. “The burden of proof on admissibility of evidence under the forfeiture by wrongdoing exception is preponderance of the evidence.” When this rule was applied by Judge John Atkins, the trial had not begun. No evidence had been presented. The testimony of Detective Scott Smith regarding cell phone location data had already been ruled as false. All they had was a shell casing that they could not say was even involved in the shooting. Where is the preponderance of evidence? Where is the presumption of innocence? Statements made by Pam Phillips were ruled admissible as a hearsay exception using the “state of mind” exception. This entire argument was dismantled in the dissenting opinion.
After again arguing that the lower court was correct in allowing Joan and EJ to invoke the fifth, they moved on to Marlene LaRock. The Supreme Court ruled that the lower court erred in not allowing her to state her thoughts about the relationship between Cal and Joan, but said the error was harmless. I can’t go into it here, but I can tell you that Marlene has more to say about this case.
The next part of the decision discusses Joan’s possession of Pam’s phone and a message supposedly delivered by Steve Durham to EJ. The decision glosses over Joan’s possession of Pam’s phone and her call to Noisworthy and moves right into the Steve Durham statement. Unfortunately, this whole incident with Steve Durham and his message was messed up first by the defense, then the appeal attorneys, and then by the Supreme Court. It’s too lengthy to go into detail here, but the mixup had to do with the witness Steven Durham being confused for his dad Steve Durham, who was the one who was supposed to deliver the message. And, yes, it is important. The message was for “EJ to keep his mouth shut.” The jury didn’t get to hear that. It’s evidence that supports Kit’s alternate perpetrator defense.
Here, Martin never made a proper offer of proof regarding either Harmon’s statement to Noisworthy or her message to Justin. At most, counsel simply informed the trial court the evidence would show Harmon made some statement against interest, and asked Durham to convey some message about the murders to Justin. The trial court was left in the dark—and indeed, after full merits briefing, this Court likewise remains in the dark—as to the content of Harmon’s alleged statement and message. Nor can we perceive the substance or content of this evidence from context. As such, we have no way to evaluate whether the trial court erred in excluding that evidence. Thus, because Martin failed to meet the specificity required for a proper offer of proof, we cannot find these issues preserved.
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So here the Supreme Court is saying that the defense never told the court what Joan told Noisworthy in her phone call and never told the court what the message was that was supposed to have been delivered to EJ. Atkins sustained the objections by the prosecution regarding both of these statements. The Supreme Court is penalizing the defense because they didn’t argue more persuasively. The defense never got the chance to enter into the record either of these statements.
The appeal had argued that the shell casing should not have been allowed as evidence because of an inadequate chain of custody and the failed polygraph of Diana Phillips regarding her discovery of the shell casing. The Supreme Court argued that there is plenty of precedent for not allowing polygraph evidence, but they completely glossed over the whole chain of custody argument.
The most glaring errors in Kit’s trial occurred during Barbara Whaley’s closing argument. Unfortunately, her many misstatements of fact and her mischaracterization of the evidence were not mentioned in the appeal.
The guns that caused these three people’s deaths were all found in Christian Martin’s house.
Barbara Whaley’s closing argument
So, what happens now? The Supreme Court’s decision to uphold the lower court conviction was not totally unexpected. Most wrongful convictions are overturned after the Supreme Court’s rubber stamp. Some things have been waiting to be implemented in the event of this outcome. The state of Kentucky has not heard the last of this case.
