Conviction fails to end questions
Police and prosecutors re-examine 1996 murder case
Oct. 24, 2011
by Andrew Wolfson
Kerry Porter’s rap sheet showed he was a small-time thief known for stealing cars and scrap metal, not crimes of violence.
Juan Leotis “L.A.” Sanders, in contrast, was “capable of killing everybody in this courtroom just for fun,” prosecutor McKay Chauvin whispered to then-Jefferson Circuit Judge Tom Wine during a bench conference in Porter’s 1998 murder trial.
But that didn’t mean Sanders had shot truck driver Tyrone Camp, the man Porter was charged with murdering, Chauvin argued, persuading Wine to block the jury from hearing evidence that Sanders had threatened a witness.
Sanders and Porter had both been both suspects in the slaying of Camp, who was shot in the back and face two days after Christmas in 1996 as he stood in the parking lot of Active Transportation Co., warming up his truck.
But it was Porter who was convicted of killing Camp and sentenced to 60 years in prison.
Now, 14 years later, police and prosecutors are investigating whether they got the wrong man and whether Porter has been locked away for a crime he didn’t commit.
If he was wrongfully convicted — and no physical evidence tied him to the crime — the police investigation and his five-day trial suggest the miscarriage began with a questionable eyewitness identification, The Courier-Journal’s review of the case shows.
A witness who saw the suspect running from the scene south of downtown Louisville told police on the day of the murder that he probably would not be able to identify the shooter.
Witness Kenneth Brown, who also drove for Active, identified Porter a month later only after he was shown a single photograph of him by the victim’s brother, which experts on eyewitness identification say fatally tainted the ID.
Brown wavered on the identification up to the eve of trial, saying Sanders might have been the man he saw, according to court records.
And now, in an interview, Brown says he was never sure of his testimony and that Porter should be freed.
Court records show that detectives considered Sanders, who was convicted of killing another man seven months later, as Camp’s possible killer but aborted their investigation of him when he “lawyered up,” lead Detective Rodney Kidd said.
The newspaper’s review of the testimony at Porter’s trial also shows that two of the prosecution’s witnesses offered contradictory descriptions of the alleged perpetrator:
One witness said Porter was so drunk less than two hours before the murder that he could barely stagger across a street in Newburg, while Brown said the man he saw at the crime scene raced away so swiftly and gracefully that he looked like an “NFL running back.”
The Courier-Journal previously reported that a cooperating government witness in an unrelated murder investigation told police and prosecutors last year that Porter was innocent.
That witness, Francois Cunningham, said Sanders — after initially offering him $50,000 to do the job — admitted killing Camp himself so that he and Camp’s widow, Cecilia Camp, could share the proceeds of an insurance policy she had bought on her husband.
Prosecutors and police withheld that information from Porter and his lawyer at the Kentucky Innocence Project, who had been working since 1997 to free him, saying they already were cooperating with that attorney and needed to protect Cunningham’s safety.
Cunningham told police and prosecutors in the same statement that Sanders, together with four other men, including Cunningham, participated in the all-day torture murder of another victim, Timothy Tooley Jr., 21, whose body was found in a car trunk in Okolona two weeks before Camp was slain. Lt. Barry Wilkerson, commander of the Louisville Metro police homicide unit, said police are investigating.
In separate interviews, Chauvin, who is now a circuit judge, and Wine, who now sits on the Kentucky Court of Appeals, defended the verdict in Porter’s case, which the jury returned after deliberating for less than an hour.
Chauvin said the case “wasn’t a close call” and Wine said the evidence all pointed to Porter, not Sanders. Jury forewoman Cathy Elstone recalled that Porter’s guilt seemed to be “cut and dried,” and three other jurors agreed.
“The only thing that made it interesting was that Juan Sanders was in the background, and everybody knew he was perfectly capable of doing this,” Chauvin said in an interview. “But there was no evidence against him and a mountain of evidence against Porter.”
In addition to the eyewitness ID, a friend of Porter’s testified that he heard Porter threaten to kill Camp four weeks before the murder and that he saw Porter with a shotgun on the morning of the crime.
Also, a jail inmate incarcerated with Porter testified that Porter bragged repeatedly about killing Camp.
And Porter’s alibi (that he was with a girlfriend in the hours before the murder) was dramatically undermined at trial when the woman testified that she was in a drug-treatment center at the time — and had been there for three weeks.
Commonwealth’s Attorney Dave Stengel, after announcing in September that he was “moving toward” exonerating Porter, said earlier this month that it would take a “very solid and compelling” body of evidence to clear Porter, such as if DNA evidence found at the scene matches Sanders’.
So far, it has not matched Sanders’ DNA, Stengel said.
Porter’s Innocence Project lawyer, Melanie Lowe, an assistant public advocate, said she thinks her client was wrongfully convicted because of “investigative tunnel vision” by police and prosecutors, as well as a bad eyewitness ID and jailhouse snitch testimony.
Porter, inmate No. 126590 at the Eastern Kentucky Correctional Complex, 30 miles south of Morehead, said police rushed to judgment against him because they were under enormous pressure to quell a crack-cocaine-fueled murder spree in which 68 people were killed in 1996 in Louisville.
Tyrone Camp, a model employee who was beloved by family and co-workers, was the last murder victim of the year.
Porter knew he would be a suspect, he told police when they first came to interview him. Five years earlier, he had confronted Camp and ransacked an apartment Camp shared with Cecilia, with whom he had lived for five years and with whom he had had a child.
Chauvin later said at trial that Porter was still jealous of Camp, who married Cecilia and was raising Porter’s son.
“He hated that Tyrone Camp had taken his place, and he hated Tyrone Camp,” Chauvin said in his opening statement.
But Sanders also had reasons to want Camp dead, according to court records. Sanders began dating Cecilia around the time of Camp’s death, witnesses said.
And as Cecilia’s boyfriend — and later husband — he would have shared in Camp’s death benefits. Cecilia collected about $130,000 from her late husband’s estate, according to probate records, as well as the proceeds of a life-insurance policy that Porter’s public defender, Katherine Kingren, said in court papers was worth $150,000.
Detectives initially were stymied in their homicide investigation, records show.
Brown, who had been driving for Active Transportation for three years, told them he had heard two gunshots and gotten in his car and chased the suspect, who was on foot.
But it was dark and Brown said he saw the man for less than 20 seconds in the beams of his headlights, saw only the side of his face, and was never closer than 15 or 20 feet.
About a month later, on Feb. 8, 1997, however, the victim’s identical twin, Jerome Camp, took a single photo of Porter to Brown, who later testified that it was “like a light bulb went off. … It matched the picture of the suspect I had in my head,” Brown testified.
Jerome told Brown that the victim’s family suspected Porter had killed Camp because of their prior history, according to court records.
Learning that Brown had been shown the single photograph and thought it matched the suspect , Detective Gary Kearney on Feb. 10, 1997, presented a photo pack of six mug shots to Brown, who picked out Porter.
Brown insisted later in court that he made that selection because “he was the man who did it” — not because he recognized the man from seeing his picture 48 hours earlier.
But he eventually wavered. At a hearing the next year, after he said Sanders approached him outside the courtroom and stared him down, Brown told Jerome Camp that Sanders may have been the man he saw running from the murder scene, Brown and Camp later testified.
Brown was so uncertain of his identification that on the day before the trial, he insisted that Chauvin and Kidd show him photographs of Porter and Sanders side by side. Brown picked Porter and identified him at trial as the suspect..
But Brown said in an interview this month that he ultimately identified Porter only because Chauvin assured him he had the right man — and that he had physical evidence to prove it, which Brown said he learned years later wasn’t true.
In an interview, Chauvin denied he misled Brown, saying he told him only to tell the truth and not to testify to anything he was unsure of.
Experts on eyewitness identification such as Gary Wells, a psychology professor at Iowa State University who has consulted with numerous law enforcement agencies and the Justice Department, said the identification of Porter was tainted in three ways.
First, Brown was shown a single picture of a suspect, instead of a set of pictures of several suspects.
Single-photo lineups are the most suggestive form of identification, according to Wells and the American Psychological Association. One study of 3,000 identifications found they produced twice as many false identifications as multiple-photo lineups, the group said in a recent Supreme Court brief.
Second, the person who showed Brown the photo — Jerome Camp — indicated that Porter was the likely culprit.
And third, police showed Brown the photo pack with the image of the first photograph still fresh in his head.
“Unfortunately, we have never found a way to undo the taint from tainted memories,” Wells said.
Bad eyewitness identifications are the single greatest cause of wrongful convictions, according to the American Judicature Society, which says 75 percent of the 273 convictions overturned nationwide through DNA testing have involved mistaken IDs.
Porter’s trial lawyer, assistant public defender Katherine Kingren, tried to suppress the identification of her client, saying it was unreliable. But Wine ruled it could come in, saying that even if the ID was tainted, it wasn’t tainted by a police officer, as required under the law to keep it out of the trial.
And even if the ID was suggestive, Wine said then and in a recent interview, the U.S. Supreme Court has said such testimony can be admitted if it meets certain “reliability factors,” including the opportunity of the witness to view the perpetrator and the witness’s level of certainty.
Chauvin said Wine appropriately let the jury decide how much stock to put in the identification.
“A good ID is what a jury says is a good ID,” Chauvin said. “They heard all the evidence and decided it was a good ID,” Chauvin said.
That approach has recently come under attack, however.
Acknowledging a “troubling lack of reliability in eyewitness identifications,” the New Jersey Supreme Court issued sweeping new rules in August making it easier for defendants to challenge such evidence.
And the U.S. Supreme Court on Nov. 2 will hear a New Hampshire case in which it is being asked to rule that bad identifications may be suppressed even if police aren’t the ones who taint them, a proposition supported by the American Psychological Association.
“Taint is taint,” Wells said.
Chauvin says he had more than enough evidence to convict Porter — even without the ID.
Marcus Pendergrast, a friend of Porter’s for 10 years, testified that about a month before the murder, when Porter saw Tyrone and Cecilia enjoying themselves at a cookout, he said: “I am going to kill him. I am going to get him.”
Pendergrast also testified that on the morning of the murder, after getting off work at a Taco Bell, he drove by a house in Newburg where Porter was visiting and saw him in the yard with a shotgun.
On cross-examination by Kingren, Pendergrast admitted he never reported either piece of information to authorities until was trying to negotiate the dismissal of a receiving-stolen-property charge in which he and Porter had been accused of selling stolen aluminum. Pendergrast insisted the charge was dropped because he was innocent, although he acknowledged that one of the conditions for the dismissal was that he testify against Porter.
Chauvin also called to the stand a jailhouse snitch, Greg Gully, who testified that Porter repeatedly bragged about killing Camp while Porter and Gully were held together at the Community Correction Center. Chauvin conceded that jailhouse witnesses usually have little credibility, but Gully was facing a relatively minor felony — failure to pay child support — and records show that he subsequently pleaded guilty without getting a deal.
Gully offered an unusual level of detail, Chauvin noted, testifying that he and Porter were watching an episode of “Baywatch” involving a blind artist who was threatened by a man who shot a clay figure she was sculpting. When the figure’s head exploded, Gully said Porter told him, “ ‘That is what it looked like when I shot Tyrone.’ ”
“It was killer testimony,” Chauvin remembered.
Gully said this month that he stands by his account. But when a reporter informed him that the “Baywatch Database” and other guides to the show and its spinoffs indicate there was no such episode, he said Porter’s confession came while watching a show “like Baywatch.”
Gully also acknowledged in the interview that he had worked as a paid police informant, although he says he wasn’t paid for his statement against Porter.
Kingren tried to suggest to the jury that Sanders, rather than Porter, was the killer, and that Cecilia Camp was involved.
Jerome Camp, who came to believe that Porter was innocent, testified at trial that only Cecilia would have known Tyrone’s schedule and truck number, allowing the killer to ambush him at the truck yard.
Another witness testified that he had taught Sanders how to construct a makeshift silencer out of carpet and duct tape — just like one found at the murder scene. But under cross-examination from Chauvin, the witness acknowledged that Porter also knew how to make one.
Kingren also was able to inform the jury that seven months after Camp was killed, Sanders shot three people on Hemlock Drive, killing one. Sanders was convicted of manslaughter and assault and sentenced to 17 years in prison.
But Wine prohibited any mention that Cecilia drove Sanders to and from that crime scene, and that she was not charged for doing so.
Wine also refused to allow the jury to hear that Sanders had threatened a witness in Porter’s case or Kingren’s theories that Sanders was behind Camp’s murder.
“This is not the O.J. Simpson trial,” the judge admonished her.
Sanders did not respond to requests for comment made through the Kentucky State Reformatory, where he is serving his sentence. Cecilia Sanders, who is listed as his wife on his prisoner visitor list, also didn’t respond to requests for comment.
Wine, who served 14 years as a circuit judge, said he would hate the thought that he sentenced a man “for a crime he didn’t commit.” But he said the evidence pointed to Porter, not Sanders.
Wine also urged skepticism in evaluating Cunningham’s statement on Porter’s behalf, saying inmates sometimes meet in prison and agree to help each other out. Porter and Cunningham were incarcerated together at Northpoint Training Center near Danville for 11 months in 2001 and 2002.
Chauvin said “nothing changes” in Porter’s case unless DNA shows somebody else committed the crime.
Kidd, the lead detective who retired in 2007, remembered Porter’s case as a circumstantial one that “could go either way.”
Asked if he thinks Porter is guilty, Kidd said, “A jury of his peers said it was him, and I have to take their word for it.” But he added: “If he’s innocent, he needs to be turned loose.”
Jan Porter said her son, the fourth of eight children, who likes dogs and motorcycles, had problems with drugs and is no saint. But she said she doesn’t think he is a murderer, either.
“I just want my son home,” she said. “It has been 14 years, and that is enough.”
If he is denied parole, Porter won’t be eligible for release until 2040.
In a 90-minute interview in prison, Porter acknowledged he was addicted to crack and had been arrested three dozen times before the murder. He said he was high on drugs when he was first interviewed about Camp’s murder, and erroneously told detectives he was with his girlfriend.
But Porter said he had no motive to kill Camp. He said he had voluntarily surrendered parental rights to his son, Kerry Porter Jr., because of his drug use and because Camp was in a better position to raise him.
“I didn’t kill Tyrone,” Porter said. “He was doing a good job as a father. He was a better man than me at the time.”
Porter said he spends 12 hours every day studying his case and sleeps with documents under his pillow and taped to his wall. He has refused to take anger management classes, he said, because to do so would require him to admit that he is guilty.
He said he misses good food, fishing and picnics with his family but would stay in prison if an offer for his release doesn’t include a complete exoneration for the murder.
“I want to be vindicated,” he said.