|Update: 4th Circuit Upholds Retrial Order
Dec 01, 2002
New trial set in drug-conspiracy caseBY TOM CAMPBELL
Through two years in federal prison, Marshall L. King has consistently maintained he is not guilty of the drug-conspiracy charge that put him behind bars.
He has never forgotten, either, he is a former Virginia state trooper because he knows - and has been reminded by at least one assault - prison inmates generally don't like cops.
"There's always that concern in the back of his mind," said his lawyer, Matthew P. Geary. "That and helping me prove he's not guilty is pretty much what he thinks about in prison."
King and his co-defendant, Bruno L. Crutchfield, a former small-town police chief in Southside Virginia, were convicted in November 2000. But on July 8, a U.S. District Court judge in Richmond set those convictions aside.
Judge Robert E. Payne, after hearing evidence put on by defense lawyers starting last year, found key witnesses had lied at trial. He has vacated the convictions and ordered new trials for both King and Crutchfield.
King and Crutchfield now look forward to a new chance for acquittal.
But while Crutchfield looks forward to it from his home, King is locked up in a regional jail. Both were allowed to remain free on bond awaiting their first trial, but this time Payne has ordered bond for Crutchfield only.
Government prosecutors presented evidence on July 22 that King tried, while in jail, to pay another inmate to falsely accuse a state police investigator of soliciting perjury.
That is obstruction of justice, prosecutors said, and shows King should be kept locked up to prevent further such attempts.
The judge heard Geary's renewed arguments Monday that he should release King with financial guarantees and limits on where he can go and what he can do.
Geary argued the start of a new trial could be delayed until the middle of next year or even later if the government appeals Payne's new-trial decision to the federal appeals court in Richmond. That decision is pending in the U.S. attorney's office.
Payne said his decision on bond for King will come within days.
"As Mr. King sits here this afternoon he has not been convicted of conspiracy to distribute cocaine," Geary argued on Monday. "He is presumed to be innocent of the charges against him. . . . This man wants to defend himself and exonerate himself. He wants that trial."
As prosecutors have before, Assistant U.S. Attorney Michael C. Wallace said the government case against King and Crutchfield remains strong despite the disputed evidence. He said they are likely to be convicted again - even if not on the same charges as the first time.
And Wallace reminded the judge that some evidence, both at the trial and since, has indicated King tried to influence witnesses himself.
"Judge, at this point in time, he is still a convicted felon, for all intents and purposes," Wallace argued on Monday. "Mr. King continues to pose a danger to the community. . . . This court should wait on the appeals court's final decision."
Until his arrest, King was a state trooper assigned in the Brunswick County area. Crutchfield was chief of police - and the only policeman - for the small town of Brodnax.
The federal indictment alleged they protected and took money from local drug-dealers, distributed crack themselves and gave crack-addicted women the drug in exchange for sex.
Both were convicted of conspiracy to distribute crack and King was convicted also of "misprision" of a felony - essentially, failure to report a crime.
But the jury acquitted them both of multiple charges based on specific alleged instances of protecting dealers and distributing crack. Most of the witnesses at trial were drug-dealers with something to gain by cooperating with the government or were heavy drug-users with sketchy memories.
Both defendants were jailed immediately when the verdict came in. Five months later, King was sentenced to serve 15 years, eight months. Crutchfield got 12 years, seven months.
After they started serving their sentences, other convicts came forward to say, before the trial, key witness Vincent Maurice Lewis had tried to recruit them to testify against the two officers and to tell the same lies he intended to tell in court. They said Lewis approached them when they were incarcerated in the same regional jail.
The motive for lying would be the chance for reduced sentences as a reward for cooperating with the government.
Evidence also came before Payne in post-trial hearings that Lewis conducted "coaching" sessions in jail for the witnesses he had recruited.
Payne, when he set aside the verdicts on July 8, said he was "reasonably well satisfied" - the term required by case law - that key prosecution witnesses had lied at trial.
And in a hearing on Sept. 23, affirming that King and Crutchfield would get a new trial, Payne used unusually strong language from the bench. He said he could not recall "a verdict in which I have less confidence. . . . This trial has a taint on it that stinks awful."
In subsequent hearings prosecutors argued that Payne had not technically ruled that King and Crutchfield were convicted on evidence that has since been found untrue. But the judge, in a written opinion dated Nov. 18, underscored that his ruling is that key witnesses "lied at trial on material matters that permitted the jury to convict."
Payne said the court system operates in the interest of "justice for the defendant and justice for society. No defendant should be convicted on the basis of lies."
" . . . If the defendants are guilty and if [as prosecutors say] the United States has in reserve evidence not borne of untruth, the defendants will be convicted [in a retrial] by a jury uninfluenced by the testimony of prosecution witnesses who have lied, who have solicited others to lie, and who have been coached in their lies by an essential prosecution witness."