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2 men wrongfully convicted of attempted murder file suit against Cuyahoga County Prosecutor's office

photo of phillips and sutton
Matthew Richmond
Ideastream Public Media
Michael Sutton (third from left), his daughter Legacy and Kenny Phillips (far right) with their attorney, Sarah Gelsomino, and Sutton's mother, Roberta Cook, announce their federal lawsuit against Cleveland police officers and the Cuyahoga County Prosecutor's Office on Sept. 27, 2023.

Two men wrongfully convicted of attempted murder 16 years ago have filed a federal lawsuit against three Cleveland police officers and the Cuyahoga County Prosecutor’s office.

Kenny Phillips and Michael Sutton were convicted in 2007 for multiple counts of attempted murder and sentenced to more than 130 years in prison combined. Their convictions were overturned in 2021 and both were found not guilty after a retrial last year.

In their lawsuit filed Tuesday, Phillips and Sutton say prosecutors concealed the eyewitness accounts of two other Cleveland police officers at the scene whose accounts contradicted the testimony of the two officers who testified against them in 2007 and at their retrial in 2021.

“There's so much that got taken away from us,” Sutton said during a press conference at his attorneys’ office in Cleveland. “It's like, now, we're in the driver's seat. We want to hold whoever needs to get held accountable.”

Former police officers Gregory Jones and John Lundy told one of the three Cleveland police officers named in the suit — Det. Carl Hartman — that Sutton and Phillips never fired at police officers during a foot pursuit, according to the complaint.

Jones, in a 2015 affidavit, also said he told Hartman in 2007 that Daniel Lentz and Michael Keane, the other two officers who testified against Phillips and Sutton and who are named in the suit, could not have seen shots fired from Sutton’s car that night.

Lentz and Keane both testified in 2007 and again in 2022 that they were behind Sutton’s car when shots were fired out of it and into a black Lincoln, striking two people in the car. Both survived.

Sutton said he wants someone held accountable for everything that came after that night.

“That's where our life was paused — from 2006 Memorial Day Night all the way to even today,” Sutton said. “I was locked in a death row cell. I was housed with death row inmates.”

Since his release, Sutton became a father. Phillips said he wants to start a social work organization to help at-risk youth.

Since the 1976 Supreme Court decision Imbler v. Pachtman, prosecutors have had absolute immunity from lawsuits, even in cases where they intentionally withheld evidence of a defendant’s innocence.

Attorney Sarah Gelsomino said that means her firm can’t go after the trial prosecutors or their supervisors.

“What we can do, though, is sue the county for the policies and practices that support and encourage those individual prosecutors to violate the Constitution,” Gelsomino said.

The lawsuit lists a series of overturned cases, spanning from the 1975 conviction of Isaiah Andrew, which was overturned more than 40 years later, up to the 2007 conviction of Phillips and Sutton.

According to the complaint, the policy in the prosecutor’s office has been to withhold witness statements

“We lay out that this is the practice of the Cuyahoga County prosecutor's office since the seventies,” Gelsomino said. “We lay out many, many different examples of times where courts have determined that the prosecutors withheld evidence and that resulted in false convictions.”

The prosecutor’s office has said it did not receive the evidence the suit says was concealed before trial in this case.

Matthew Richmond is a reporter/producer focused on criminal justice issues at Ideastream Public Media.