Broward Palm Beach New Times

Prosecutors Agree to Release Inmate Who Proved His Innocence
by Eric Barton

May 11, 2012

Elroy Phillips
Phillips has spent 11 years in federal prison
A federal inmate who has served 11 years on drug charges he says he didn't commit has convinced prosecutors to let him out of prison.

Elroy Phillips refused to accept his fate after being sentenced to 30 years on charges of selling drugs to an undercover cop. He conducted records searches, hired a private investigator, and dug up information on the dirty cop who testified against him. Last week, federal prosecutors were finally convinced to dismiss charges against him.

The final step is to get a federal judge to let him go free. U.S. District Court Judge Joan A. Lenard, who originally sentenced Phillips, must now decide whether to accept an agreement signed by prosecutors that would dismiss most of the charges against Phillips and allow him out of prison.

Update: Prosecutors and Phillips' attorney have filed a joint memorandum that explains to Lenard why she has the power to "vacate" his convictions and allow prosecutors to drop the charges. The action is necessary, the memorandum argues, because "false statements by a key trial witness should result in the Court vacating those counts of conviction that rested, even only in part, upon the testimony by that witness."

Phillips' plight has been documented in a series of articles in New Times, starting with a cover story in 2003. His efforts to prove his innocence were outlined in another cover story last year, and Lenard was convinced to give him a hearing to present his new evidence.

West Palm Beach police arrested Phillips in 2001 on charges that he sold drugs to an undercover cop. They claimed to have found drugs on him when he was arrested and then added gun charges for bullets they found in his West Palm Beach apartment.

At his trial in 2003, a cadre of witnesses who had been paid by the government or given reduced sentences testified that Phillips was the head of a drug ring. The most damning testimony came from then-West Palm Beach cop Michael Ghent, who claimed to have bought about an ounce of crack from Phillips.

The jury found Phillips innocent of most of the charges, but Lenard sentenced him to 30 years for convictions that would have earned him months in prison in state court. Phillips immediately began fighting the charges. He won a brief victory when an appeals court found that he had been sentenced wrongfully, but the second time, Lenard sentenced him to 24 years.

Convinced he could prove himself innocent, Phillips filed public records requests from prison. He discovered that Ghent wasn't working the night he supposedly bought drugs from Phillips and was actually in a college class across town. A private investigator Phillips hired, Ralph Marston, tracked down a confidential informant who was supposedly with Ghent the night of the drug sale; she said she had not been there that night.

Phillips also dug up documents on Ghent's own criminal case. Police charged Ghent with bribery and other crimes in 2007 after he shook down a massage parlor for tens of thousands of dollars. Court documents also accused Ghent of running his own drug ring while working as a cop. He entered a deal with prosecutors that allowed the charges to remain off his record in exchange for Ghent serving community service hours.

What finally convinced prosecutors that Phillips should be released was a new deposition of Ghent taken on March 19. Michael Zelman, Phillips' court-appointed attorney, had tracked down Ghent to Phoenix, Arizona, and Ghent was interviewed in the U.S. Attorney's Office there. Under questioning by Zelman and prosecutors, Ghent's recollection of the night when he supposedly bought drugs from Phillips was sketchy. Prosecutors later identified 11 lies that he told during the deposition, including his denial that he had sold drugs while working as a cop.

Ghent would have been the main witness at an upcoming hearing in which Phillips was to present his new evidence to the judge. With Ghent's multiple lies weighing on them, prosecutors began negotiations last month to get Phillips out of prison. Phillips learned on April 29 that his release was imminent. His family brought street clothes to him at the Federal Detention Center in Miami so he could walk out of a court hearing.

On May 4, prosecutors signed a joint motion that agrees to drop all charges against Phillips except for his conviction on the small amount of cocaine found on him during his arrest. That charge carries a two-year sentence, so with credit for the 11 years he has already served, he could be released from prison immediately. Prosecutors also filed court documents seeking Phillips' immediate release on his own recognizance in case the judge needed time to consider whether to dismiss the charges.

But Lenard filed an order late on May 4 questioning whether she has the authority to outright dismiss the charges. She asked both sides to file a memorandum outlining any law that gives her the authority to make such a rare move.

Update: Now that Lenard has the joint memorandum, it's up to her to decide whether Phillips can go free. Such a ruling could come in hours or months, depending on when Lenard wants to act.

For now, Phillips remains in federal prison, knowing that he may be released any day, his street clothes still there with him in his cell. Phillips and his attorney declined to discuss the case until Lenard makes her decision. But during a prison interview last year, Phillips, now 45 years old, said he could be patient until the day he convinces the judge that he's innocent. "I'm an avid chess player, and in chess, you gotta look at the end game, not what's in front of you," he said. "That's what I did here."

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