Prosecution, defense team up to convince a skeptical judge to release inmate

By Eric Barton, BrowardBulldog.org 

Elroy Phillips

Next month, a federal prosecutor and a defense attorney will stand before a judge in Miami and do something extraordinary. Both sides will present evidence and call witnesses to try to convince the judge to set a man free.

Elroy Phillips has served nearly half of his 24-year sentence on drug charges. But federal prosecutors have agreed to release him after the cop who helped convict Phillips resigned amid accusations that he was dirty.

U.S. District Judge Joan A. Lenard is reluctant to release Phillips. She wants the hearing at which both sides will work together to talk her into signing off on the deal.

Asking prosecutors and a defense attorney to work together in support of a man’s freedom is exceedingly rare, legal experts say, and just how they will pull off this hearing is still unknown.

“It is rare that a case like this is even considered on its merits,” said Bruce E. Reinhart, a former federal prosecutor who approved the indictment against Phillips. “To get to the point where the government concedes on an issue, that’s very rare on its own. But to get to the point where both sides are trying to convince the judge to let a man go, that’s a needle in a haystack.”

Initially, Phillips’ arrest seemed simple.

West Palm Beach Police Department Officer Michael Ghent claimed to have bought a $50 crack rock from Phillips on April 6, 2001, as part of a federal operation to break up a drug ring. Ghent’s testimony was key in convincing a jury to convict Phillips on the drug buy and on related possession charges for drugs and guns found by police when he was arrested.

Lenard sentenced Phillips to 30 years, but after an appeals court sent the case back, she lowered it to 24 years

In 2007, after Phillips had spent five years in federal prison, West Palm police arrested the former star witness, Ghent, on charges that he had taken $12,500 in bribes and sexual favors from a massage parlor. An internal affairs investigation determined he may have sold drugs while working as an undercover officer. Ghent cut a deal with prosecutors that allowed him to do 60 hours of community service and give up his police certification in exchange for the charges being dropped.

From prison, Phillips pored over the evidence from his trial and conducted his own research. He found new pieces of evidence that seemed to support his innocence.

Phillips learned that Ghent was taking a community college course the night of the drug buy and had never clocked in at work that day. Phillips also hired a private investigator who tracked down a confidential informant who supposedly witnessed the transaction; she said she wasn’t there that night.

After Ghent’s resignation from the police department, Phillips asked Judge Lenard in 2009 to reconsider his sentence, in what’s commonly called a 2255 filing. The motion dragged on until earlier this year, when Phillips’ attorney, prosecutors, and an FBI agent interviewed Ghent in Arizona. Prosecutors would later identify at least 11 lies Ghent told in his deposition, including denying that he sold drugs while a cop.

Not wanting to put Ghent on the stand to fight the 2255 filing, prosecutors in May agreed to drop most of the charges against Phillips except for one related to cocaine found in his pocket when he was arrested. That charge carries a two-year sentence, so he would be set free if the judge accepts the deal.

U.S. District Judge Joan A. Lenard

But at a hearing May 16, Lenard declined to act on the prosecutions’ request and said she wanted a detailed filing on why she should release Phillips.

Prosecutors and Phillips’ attorney, Michael Zelman, worked jointly on a 60-page memorandum filed with the court May 31, but Lenard, without explanation, declined to act.

At a status hearing Oct. 5, Lenard also declined to accept the deal and release Phillips. Instead, she ordered both sides to return to her courtroom for in December to help her make up her mind.

Sunny Hostin, a former federal prosecutor and legal analyst for CNN, has read the court filings in the Phillips case at the request of BrowardBulldog.org. She said the joint hearing is unique.

“The entire situation is uncommon. It’s certainly uncommon for federal prosecutors to move to set aside a conviction, and it’s certainly very uncommon for them to work together with the defense.”

Still, Hostin said, the judge’s reluctance is understandable. Judges don’t like to reverse sentences, especially when they were the ones who presided at trial.

“It does make sense to pause and be sure she’s doing the right thing,” Hostin said. “But I would bet she’s going to make this right.”

Reinhart, a supervisor in the U.S. Attorney’s Office at the time Phillips was convicted, says part of the problem in reaching a decision is that the federal law regarding a 2255 filing is “esoteric and confusing.”

Even if the judge determines Ghent was a dirty cop and can’t be trusted, it may not be enough to release Phillips if nobody knew Ghent was dirty at the time of the trial.

“If courts go down that road, inmates would be bombarding them with new pieces of evidence years after convictions,” Reinhart said.

Likewise, Nova Southeastern Law School Professor Bob Jarvis says every witness has flaws, even cops who later are forced to resign. “Just because the cop was dirty and was lying about other things doesn’t mean he was lying this time,” said Jarvis, who has read the recent filings in the Phillips case.

Alex Acosta, a former Miami U.S. Attorney who is now dean of the Florida International University law school, declined to comment on Phillips’ case specifically. He said, however, that whenever prosecutors ask a judge to release an inmate there are special circumstances that don’t necessarily mean the inmate is innocent – only that prosecutors simply don’t want to continue with the case.

“It’s unfortunate that mistakes occur,” Acosta said. “When they do on occasion, we can’t correct them, but we can move to prevent future harm.”

Prosecutors and Phillips’ attorney declined to comment for this article. Speaking by phone from federal prison in Miami, Phillips says he keeps focusing on the day he still believes is coming: the day he walks free. “I just keep my head up,” he says. “We’re still in this fight. Now we have the prosecutors on our side, so now I’m not alone.”

Eric Barton is editor of Fort Lauderdale Magazine. He can be reached at eric@flmag.com.

 

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