Elroy Phillips sits in prison despite proof of his innocence
Elroy Phillips doesn't look much like a legal expert. With a pair of gold teeth, a short-cropped goatee, and a 245-pound build on a five-foot-ten frame, he looks twice as thick as an average man.
But while serving a 25-year sentence on a drug charge, Phillips has earned a paralegal degree and worked in the law library. He has also helped about 20 fellow prisoners a year with their appeals.
But there's one inmate, a prisoner with seemingly irrefutable evidence of his innocence, that Phillips, known among fellow inmates as Law, has been unable to free: himself.
For all the help he has offered others, the 45-year-old known as Eighty-Six when he was growing up on the streets of Miami sits behind bars charged with a crime legal experts say he likely didn't commit.
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Since West Palm Beach Police arrested Phillips in 2001 for allegedly selling $50 worth of crack to an undercover cop, he has spent the years collecting evidence. His legal work appears to show that the police fabricated evidence against him. A woman whom cops say witnessed the drug buy has since testified she wasn't even at the scene. Personnel records show that the undercover agent who claimed to have bought the crack wasn't on duty the night of the alleged buy. That officer — whose word single-handedly convicted Phillips — has since turned in his badge after facing accusations that he was a dirty cop.
In response, prosecutors and West Palm Beach cops have tried to cover up the shoddy police work. They appear to have doctored documents and lied in official statements. The woman who supposedly witnessed the drug buy even says she was offered money from a federal prosecutor and police officers to stick to the story.
New Times first wrote about Phillips eight years ago ("86ed," September 18, 2003). After he gathered his new evidence, New Times asked a judge, law school professors, and lawyers with no connection to him to analyze his case. All came to the same conclusion: Phillips should at least be granted a new hearing to present his evidence.
It's not that Phillips is an innocent man — he admits he sold drugs when he was younger. He has collected evidence that could be enough to overturn his conviction, and the justice system is supposed to correct such wrongs.
All of his new evidence now sits before U.S. District Court Judge Joan A. Lenard, who originally sentenced Phillips. He asked the judge in 2008 to hold a hearing on his new evidence and then dismiss the charges. With no other appeals left, Phillips hopes Lenard will give him a chance to present his evidence.
The man everyone calls Law says he has faith Lenard will make the right decision. "In this place, everybody is hopeless," Phillips said recently during a prison interview. "From the time I was sentenced, I was going to fight. I've never been hopeless."
Phillips admits the cops once had reason to suspect him. While growing up in the Little River neighborhood of Miami, he got caught up in the drug trade. During a July 14 prison interview, he wouldn't go into specifics, but he said he "worked with Colombians" and wasn't a minor player.
"Nah, I never worked the corners," he says. "But I don't want to go into that. All that's behind me."
Phillips says he gave up selling drugs after high school when he went to Brevard Community College. His hopes for a college degree ended, however, when he shot a man in his home at 2 a.m. December 22, 1992. Phillips claimed the man broke in, so he shot the burglar with the thief's own gun during a struggle. But the jury rejected his self-defense claim and found him guilty of attempted murder. A judge sentenced Phillips to 17 years in prison. He later convinced an appeals court that his lawyer had failed to adequately represent him, and he served only two years in prison.
After his release, Phillips started a landscaping company in West Palm Beach that landed a lucrative contract to maintain the grounds at the Department of Veterans Affairs hospital. He says the cops kept after him, though, because he made good money mowing the lawns, and police couldn't buy that a black man in the ghetto could do so well.
Cops claim Phillips was running a drug operation in 2001 out of a two-story, pale-yellow apartment building at 625 Eighth St. in downtown West Palm. A low-level dealer named James "Pumpkin" Yearby would work the fence out front, collecting money before fetching drugs hidden in an old dresser left out in the yard.
The night of April 6, 2001, at 9:30, undercover narcotics agent Michael Ghent claims he went to buy crack from Yearby in the hopes of gathering evidence against the drug ring. Ghent allegedly approached the apartment building and found Phillips working the fence alone. Ghent said an unidentified confidential informant, or CI, helped the deal go down and that he bought three crack rocks from Phillips for $50.
From the beginning, the bust was suspect. High-tech surveillance equipment the cops and DEA agents had been using to trail Phillips reportedly malfunctioned that night. Other cops who were supposedly there didn't see the deal go down, leaving Ghent and his CI as the lone witnesses. Ghent apparently forgot to fill out a report from the bust.
The DEA had been involved in the investigation, so Phillips's case was sent to federal court. At his trial in 2002, Ghent dug up an unsigned, undated police report that hadn't surfaced before. Phillips's attorney fought to have the surprise evidence kept from the jury, but Lenard allowed it. The jury found Phillips guilty of selling the drugs to Ghent, and Lenard sentenced him to 30 years in prison.
"Unfortunately for me," Phillips says, "juries believe cops over guys like me."
The sentence was severe, especially considering Phillips had been found guilty of selling less than a gram of crack, the weight of a paper clip. It isn't difficult to find more serious criminals who receive lesser sentences. Take, for instance, Edgar Vallejo-Guarin, who pleaded guilty to organizing shipments of thousands of kilos of cocaine from Colombia to the United States; this past June, a federal judge sentenced Vallejo-Guarin to 22 years in prison.
Phillips promised himself that he wouldn't give up fighting. He appealed, and the U.S. 11th Circuit Court of Appeals in April 2006 threw out his sentence, finding that Lenard had given him a lengthy prison term "based on facts neither found by the jury nor admitted by the defendant." It was a minor victory — Lenard didn't reduce his prison term by much; in July 2006, she gave him 24 years.
As a result, Phillips needed to find new ways to prove his innocence, so he worked on learning the law. He earned a paralegal certificate in October 2007, got a job in the prison law library, and took over his own case from his court-appointed lawyers.
His goal was to collect documents and statements that, once pieced together, would prove he didn't sell Ghent the drugs. "I'm an avid chess player, and in chess, you gotta look at the end game, not what's in front of you. That's what I did here."
For six years, Phillips pored through public records he obtained after opening an account with the West Palm Beach Police Department with money his mom had sent him in 2003. He started low, asking for all department regulations covering everything from payroll to undercover drug buys.
Department policy required officers conducting drug deals to use cash clocked out of the evidence room. Likewise, any drugs purchased or seized were required to be checked into the evidence room. If the clerk was gone, officers could check in evidence using an after-hours locker. So Phillips did something his attorneys had never done: He requested the evidence logs to see what had transpired the night of his arrest.
On May 4, 2009, he received a copy showing 84 times that cops took out "investigative funds" in the days before and after his arrest. Nobody had checked out cash April 6, 2001. Ghent hadn't checked out funds since two weeks before the arrest, and the $40 he had taken wasn't for undercover drug work.
The log from the Property & Evidence Section of the department also showed that the next time anyone checked in narcotics was ten days after Phillips's arrest.
Police department regulations also dictated that all employees must clock in using a system called Oracle Payroll. So Phillips asked for records of officers who had worked on his case. Only one of the five cops working on the case had clocked in that day. Ghent wasn't on duty.
Figuring he might be on to something, Phillips requested Ghent's personnel record and received a copy in early 2010. In it, he discovered that Ghent had been at a hostage negotiations class at Palm Beach State College the night of the bust. Ghent took a final exam that night and later accepted a $50 bonus from the police department for completing the course.
At last, Phillips had hard evidence that cast doubt on Ghent's word. "Ghent is a liar," Phillips says, holding a copy of the personnel record, "and this document right here proves it."
Phillips then dug into the court records on his case. He found one document he'd never seen before. It revealed the name of the CI who supposedly witnessed Ghent buy the drugs. (New Times is not printing the informant's name because she could be the victim of retribution if it were revealed that she worked for police.)
Phillips didn't recognize the woman's name, so using $300 sent from his mom, a retired seamstress in Jacksonville, Phillips hired private investigator Ralph Marston last year. He asked Marston to track down the CI. Phillips hoped the informant could reveal that she was never there.
When cops and the prosecutor on the case heard that Phillips was asking around about the CI, they tried to make sure she didn't change her story.
For years, the CI had been helping the West Palm Beach Police Department pull off undercover drug buys and identify the big players in the local drug trade. She was paid for her services, often thousands of dollars to tag along with undercover cops while they bought crack rocks in the neighborhood west of downtown West Palm Beach.
In July 2010, she received an unexpected call from cops who told her she needed to come down to the station, according to court documents. She had filed an abuse complaint against the father of her child, and she was told she needed to give a statement. She arrived at 7:30 p.m., and she was sent to wait in a second-floor conference room.
Officer Brian Arlotta sat down with her and asked about the abuse complaint. After they spoke, Arlotta told her there were others who wanted to speak with her. In walked Capt. Kevin Coppin, who supervised the Western Division of the department, and Janice LeClainche, the assistant U.S. attorney who prosecuted Phillips.
The CI recognized Coppin; he sometimes showed up to pay her for information. But she hadn't met LeClainche. It was rare for a federal prosecutor to be at the police station late on a Friday night, and the CI figured this was about something more serious than her abuse complaint.
Coppin told her there was a problem with a case the CI had worked on. Her name had been accidentally revealed in the court papers; LeClainche had forgotten to redact her name from an exhibit she filed. This could put the CI in danger. Coppin told her Elroy Phillips could be after her.
The CI said there must be a misunderstanding. She said she had known Phillips for years and had never bought drugs from him. "He's my homeboy," she said.
LeClainche handed the CI a copy of the police report Ghent wrote, the one that had mysteriously materialized at trial. In the report, the CI was named as the witness of the drug buy. She hadn't testified at Phillips's trial, and the CI claimed this was the first she had heard about the case. Coppin told her that several officers had been there that night and would testify that she was involved. Again, she denied it.
Later that night, the CI called Phillips's sister Yvelle. The CI's name had been revealed in the court papers, but it didn't identify her by her street name. Yvelle and the CI had been close friends and even watched each other's kids.
"Look," the CI told Yvelle, "I didn't snitch."
Yvelle passed along the CI's name to her brother, who asked Marston to interview her. The private detective had the CI come to his office two days later. Marston recorded the conversation and then had the CI sign a declaration — a legally binding document that could hold enough weight to refute the evidence that put Phillips away.
In the declaration, she claims LeClainche and Coppin threatened to take her children away if she didn't help. She claims the prosecutor even offered her cash to testify she had been the witness that night.
"Name your price," she claims the prosecutor told her.
It was no wonder that Ghent had used her as a bogus witness for his fabricated drug deal, the CI told Marston. She had been having sex with Ghent, she said. She claimed she lived with him and that he had a side business selling drugs. She helped him deal crack in the neighborhood, and he even lent her his service weapon when she went on runs to drop off packages of drugs to low-level dealers.
The whole story might have seemed preposterous — if not for Ghent's history.
Officer Michael Ghent walked into the Relax With Us massage parlor for the first time in October about ten years ago. According to court documents, Ghent gave his undercover name, Mike Malik, and pretended to be a pro football player with a leg injury. He asked to meet with some of the girls.
Over the next few months, Ghent returned regularly for massages. Both Ghent and the girls would get naked first, and then they'd end the massage by masturbating him, sometimes with the girl straddling him.
Eventually, Ghent told Relax With Us owner Bernadette Lesueur that he was an undercover cop. He demanded weekly protection money to keep the parlor from getting busted, according to the documents. Lesueur agreed, but over the next few years, Ghent's demands increased and sometimes became more frequent.
In 2005, he called Lesueur to ask for a $10,000 loan to help him buy a house. She didn't have that much money, but she agreed to give him $5,000. Lesueur would later give him another $4,000, which she believed he was going to invest for her in Iraqi dinars.
He hadn't paid the money back as of May 2006, when he called Lesueur and asked her and her husband to come to his home. After they arrived, Ghent told the couple that he was being followed. He asked if they were wearing a wire and told them to deny it if someone asked about the loan. When they asked about the money, Ghent responded, "My ex-wife kept the house. Get the money from her."
By January 2007, Lesueur had had enough and complained about Ghent to the FBI. The FBI called the West Palm Beach Police Department, which sent Sgt. Patrick Flannery to question Lesueur. Flannery looked deeper into Ghent and found he was having Lesueur's son-in-law buy drugs for him, according to documents.
He also discovered that Ghent had doctored police department paperwork to obtain low-income housing at the Malibu Bay Apartments. Ghent had gotten his supervisor to sign a blank form and later filled it out with false information to claim he was making less than $30,000, which would qualify him. He was actually making at least $57,000. Ghent had told the manager of the apartment complex that he was on "super undercover" status and agreed to help rid her of drug dealers who lived there if given a break on the rent. The manager agreed to cut the rent by $100 a month, but Ghent never kicked out the dealers.
In a recorded phone call between Ghent and Lesueur on January 11, 2007, the cop admitted to taking the $5,000. Lesueur also gave Flannery a copy of a videotape that showed Ghent taking a payment from her husband. Flannery interviewed several of the girls working at Relax With Us, who admitted to masturbating Ghent several times. One of the girls told Flannery she watched Ghent snort a white powder before she began.
West Palm police arrested Ghent on February 22, 2007, and charged him with bribery, solicitation of prostitution, and perjury. He could've faced decades in prison. But two months later, prosecutors gave him a sweetheart deal. He agreed to do 60 hours of community service and give up his certification to work as a cop. In exchange, prosecutors dropped the charges, and Ghent avoided having the crimes on his record.
Relax With Us has since closed, and Ghent declined to comment when New Times reached him in Jacksonville, where he now lives. He hung up the phone when questioned about Phillips. Asked later by text message, he responded, "I don't care what people say, only what god think, god bless you and the ones talkin bout me."
Phillips learned about Ghent's criminal case when he received a copy of the former cop's personnel file. He requested court documents that detailed the accusations against Ghent and filed them in his own case. The cops had claimed that only the CI and Ghent had seen Phillips sell drugs, and now the testimony of both of those witnesses was in question.
Ghent's history as a dirty cop could have instigated a review of cases, such as Phillips's arrest, in which Ghent was the only witness to a crime. Instead, West Palm cops backed the guy they ran off the force.
On December 21, 2009, Phillips received an unexpected record in the mail. It was a new copy of the log of the department's use of investigative funds. The document covered roughly the same dates as the previous one, but this time it was written in different handwriting and included just the right damning information.
It claimed Ghent had taken out $50 for an undercover drug buy. The new record included the right case number for Phillips's drug investigation. But still, the date was off — it showed Ghent hadn't taken out the $50 until a week after Phillips allegedly sold him crack.
The so-called corrected document is indicative of the declarations filed by federal prosecutors in the fall of 2010 in an attempt to keep Phillips from receiving his evidentiary hearing. (The officers and LeClainche did not return phone calls from New Times. Captain Coppin, reached on his cell phone, said he'd call back but never did.)
On September 2, 2010, Coppin signed a seven-page declaration meant to put to rest the court filings Phillips kept submitting.
Phillips had claimed in court documents that the personnel records proved Ghent was in class the night he claimed to have bought drugs from Phillips. But rather than concede that the dirty cop could not be trusted, Coppin conducted a little experiment. He got into his city-issued Ford Crown Victoria and drove to Palm Beach State College's Criminal Justice Institute at 4200 S. Congress Ave. in Lake Worth. He started at 8:52 p.m., which was about when Ghent might have gotten out of class the night of Phillips's arrest. Then he drove 9.9 miles north to the West Palm Beach Police station at 600 Banyan Blvd. It took him 16 minutes. The captain argued in his statement that Ghent had plenty of time after his class to get to the bust at 9:30.
But Coppin's experiment ignored several simple facts. Ghent might have been able to make it to the bust if he had driven straight there. However, police and prosecutors say he ran several errands first. Department policy required him to stop at the police station to clock in and check out money from the evidence locker. If he skipped those steps, violating department policy, and used money out of his own pocket, he still wouldn't have been able to make it to the bust after his next step.
Statements from Sgt. Bradley Emmons and Lt. Brian Kapper claim Ghent then met them at the parking lot of a closed building on the north end of the city. That's where they met the CI. Ghent then frisked her (this would have violated department rules, which specify that a female officer must frisk a female CI). The crew then drove to 625 Eighth St. and tested the wire Ghent was supposedly wearing that night. Emmons and Kapper allegedly parked around the corner in hopes of listening in as the deal went down.
Considering Coppin took 16 minutes to drive just from the college to the police station, it's impossible that Ghent could have completed all the necessary steps and bought drugs from Phillips just 22 minutes after leaving his class.
LeClainche, a federal prosecutor since 1991, also filed a declaration to refute Phillips's evidence. LeClainche wrote she got involved in the Phillips case when she was assigned to work with the DEA. LeClainche denies ever offering money to the CI or threatening her children during the meeting in the police department's conference room. In fact, LeClainche and Coppin claim that during that meeting, the CI called Phillips a killer and said she was afraid of him.
Linda McDermott, manager of the police department's Fiscal Services Department, gave a declaration too. McDermott argued that the payroll system used by the department was unreliable and not an accurate record of the hours Ghent worked that night. McDermott claimed Ghent worked ten overtime hours the week Phillips was arrested, although she offered no documents to support the claim. Department policies required that any overtime or corrections to a payroll record must be made in the Oracle system.
Many of the declarations filed by LeClainche include an identical, boilerplate defense of Ghent. Several of the cops wrote, "During my time I spent working with Agent Ghent on the CAT [Criminal Apprehension Team], I found Ghent to be reliable and trustworthy. Based on my years of experience as a law enforcement officer, I have seen individuals under the influence of narcotics. While working with Ghent on the CAT team, I never saw Ghent under the influence of narcotics." It had been three and a half years since Ghent had been arrested and forced to turn in his badge.
Phillips's records requests and subsequent appeals to the courts produced mixed results. Based on the CI's assertion that LeClainche had pressured her into saying she'd witnessed the crime, Phillips filed a complaint with the Florida Bar against the prosecutor for tampering with a witness. The U.S. Attorney's Office has since removed her from the case.
But his other maneuvers were met with setbacks. Phillips filed a 99-page motion in October 2008 asking for his sentence to be set aside and has followed it up with dozens of documents detailing his new evidence. Judges are inundated with requests like this, and Lenard could have quickly denied it with a one-page ruling. Instead she turned the filings over to U.S. Magistrate Judge P.A. White for a second opinion. White returned with a 67-page report on June 14, 2010, and it wasn't good for Phillips.
White wrote that Phillips's motion is full of "patently frivolous claims" and that he had been unable to show that "the government engaged in prosecutorial misconduct." Phillips's request to have his sentence set aside, White wrote, should be denied.
Phillips is undeterred by the report. Speaking in the visiting room at the Federal Medical Center, a prison in Lexington, Kentucky, he points to the new evidence he has since filed in the case, including the tape-recorded interview with the CI.
"This was never heard before. None of it was," Phillips says, gripping an accordion file holder full of his new evidence. "Judge Lenard, she didn't do this to me. The cops lied. It's not like Judge Lenard did anything wrong here."
Phillips now fears that Lenard could rule without first conducting a hearing on his new evidence. That could happen any day — Lenard, who was appointed by President Bill Clinton in 1995, has full discretion in the case, and it's unlikely her ruling can be appealed.
Legal experts who reviewed the Phillips case for New Times all concluded Phillips at least deserves a new hearing on his evidence. Ric Margolius, a senior circuit judge in Palm Beach County, points out Phillips was convicted on a charge that, in state court, would have equaled six months or less in jail. The three crack rocks Phillips allegedly sold weighed .77 grams — less than a dollar bill. "I have been involved personally in many hundreds of these cases (and possibly thousands). I have never seen or heard about a sentence of this duration until I read your article," Margolius writes in an email.
If Phillips's evidence is right, "then an unconscionable miscarriage of justice has occurred," Margolius writes. "My view is simply that as a judge, I would exhaust every possible remedy, with an eye on legal creativity, to absolutely ensure that no innocent person ever be incarcerated."
After reviewing the evidence, Terri Backhus, a Tampa attorney who specializes in criminal appeals cases, says it's rare to find evidence that appears this definitive. "You hardly ever have affidavits from people saying the arresting officer was not there," she says. "The police will go to any lengths to cover up what they've done, and it appears they're doing that here."
Marston, the PI (and former cop) hired by Phillips, says he took on the case because he saw it as an example of a failure of the justice system. He says it's not uncommon — it's rare for cops or prosecutors to admit to a mistake, even when there's new DNA evidence or witness statements that contradict them. "Prosecutors do not like to cut their losses and admit a mistake," Marston says. "But with Elroy, they know Ghent was a dirty cop. Why not blame this all on him and be done with it?"
For his part, Phillips says he simply needs to focus on the fight. He has a calm personality and has remained certain that his case will meet a good end. "Sometimes when you get upset, you make bad decisions. And I can't get angry right now. I need to be focused."
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