Miscarriage of justice; reforms urgent to protect innocent

Kerry Porter is still serving 14 years for a murder. Prosecutors discovered evidence exonerating him in March, 2010. His lawyer recently heard the news from a Courier-Journal reporter.
Kerry Porter is still serving 14 years for a murder. Prosecutors discovered evidence exonerating him in March, 2010. His lawyer recently heard the news from a Courier-Journal reporter.

We hope that by the time you read this, Kerry R. Porter will be a free man, after serving 14 years in prison for a murder he did not commit.

Jefferson Commonwealth's Attorney Dave Stengel said last week his office is moving toward clearing Porter on the basis of DNA and other evidence.

It has taken years for Porter to come this close to clearing himself, even with the help of Louisville police, a cooperative prosecutor and an attorney for the Kentucky Innocence Project.

A recent discovery by Courier-Journal reporter Andrew Wolfson brought public attention to the need for expediting Porter's release.

Porter's plight also highlights weaknesses in Kentucky law and court rules:

■ Eyewitness identification is unreliable and the main source of wrongful convictions including Porter's.

As the New Jersey Supreme Court recently ruled, "a vast body of scientific research" raises doubts about the human memory and how police collect and courts use identifications by eyewitnesses.

In Porter's case, the usual strong likelihood of a mistake was compounded when a relative of the victim showed the witness Porter's photo before police did.

Kentucky police should follow model policies for lineup procedures. The International Association of Chiefs of Police and the National Institute of Justice have developed models. Evidence gathered contrary to the model procedures should be excluded.

■ The legislature should expand eligibility for DNA testing. Now only inmates sentenced to death have a guaranteed right to DNA tests.

Even though Porter was not facing execution, a Jefferson Circuit Judge authorized DNA testing, which recently revealed Porter did not handle a homemade silencer on the murder weapon.

Results of DNA tests that could reveal the real murderer are being awaited. Meanwhile, in Northern Kentucky, Campbell Circuit Judge Fred Stine last month refused to allow DNA testing in the case of Virgil Smith, an Innocence Project client who is serving 70 years for a murder of which he says he's innocent.

Stine ruled after a prosecutor argued state law allows DNA testing only for those on Death Row.

Judges already have the discretion — and, we'd say, obligation — to authorize DNA testing in all cases in which there is a substantial probability of wrongful conviction. But since that view is not unanimous, the legislature should put it in statute.

■ The Kentucky Supreme Court should require prosecutors to disclose new evidence of innocence to the defendant and the appropriate court.

In March 2010, a cooperating government witness in another case told police and prosecutors that Porter was innocent and explained in accurate detail how the murder was committed by another individual who had a motive and is now imprisoned on manslaughter and drug charges.

Wolfson discovered the exculpatory evidence while examining a newly unsealed file in a high-profile criminal case. Porter's lawyer did not know about the statement clearing her client until Wolfson interviewed her for an article published last week.

Police and prosecutors withheld the evidence to protect their informant. They should have found a way to protect the informant without withholding evidence of Porter's wrongful incarceration for 18 months, until a journalist found it. The American Bar Association has recommended a disclosure rule that could avoid a repeat of this injustice.

■ Kentucky has no law providing Porter with any financial compensation when he leaves prison and tries to restart his life after 14 years behind bars. He would have to sue and prove official misconduct to collect a dime. The legislature should enact a law compensating those who have been wrongly imprisoned.

Porter's story is the nightmare of a society that values liberty and justice. There are steps lawmakers and courts must take to avert more such nightmares.