Elroy Phillips, in Jail on a Charge He Says He Can Prove Is Bogus, Will Get Day in Court (Updated)
Phillips, in prison in Kentucky, received the judge's ruling in the mail yesterday.
Photo by Eric Barton
A South Florida man sentenced to decades in prison for a minor drug charge will finally get his chance in court to prove he didn't commit the crime.
U.S. District Court Judge Joan A. Lenard issued a ruling September 8 that grants Elroy Phillips a hearing to present his evidence. Phillips has collected witness statements and documents since his 2003 conviction for selling less than a gram of crack to an undercover West Palm Beach cop.
"I was elated," Phillips said by phone today from a federal prison in Kentucky. "I had a lot of confidence in my case because of the facts. I have the facts on my side."
Update: Magistrate Judge Patrick A. White has set the hearing for February 9 in Miami. A ruling issued September 21 also gives Phillips a public defender and ordered that all paperwork in the case be filed by October 28.
Phillips' plight was detailed in a New Times cover story last month. Experts -- including law
professors, lawyers, and a judge -- said Phillips deserved a chance to at least present his evidence before a judge, and Lenard apparently agreed.
Lenard wrote that case law requires Phillips to get a hearing as long as his claims are not "patently frivolous" or "affirmatively contradicted by the record." The judge wrote that the evidence Phillips has found meets that standard and that a hearing is "necessary."
Lenard specifically mentions five arguments Phillips has made claiming his innocence. The judge's ruling refers to a statement from a police informant who supposedly witnessed Phillips buy drugs from the cops. Phillips hired a private investigator to take the informant's statement, and she told him that she was not there.
Lenard also noted that the arresting officer, Michael Ghent, has since been forced to turn over his badge after allegations that he was selling drugs and shaking down a massage parlor for payoffs.
Only Ghent and the confidential informant were said to have witnessed the drug buy, meaning Phillip's conviction hinges on a witness who now says she had nothing to do with the arrest and a cop who was run out of the force.
Lenard didn't set a date for the hearing but ordered that it be overseen by U.S. Magistrate Judge Patrick A. White. Lenard had asked White to review Phillips' case to determine if he should get a new trial. White issued a 67-page report last year recommending that Lenard should deny the request. But in her new ruling, Lenard ruled that the new evidence Phillips had uncovered warranted a new hearing.
While in prison, Phillips got a paralegal degree and has helped other inmates file appeals. Yesterday, when he got the ruling in the mail, he was scheduled to meet with two inmates to talk about filing papers similar to the ones that got him a new hearing. "I had an appointment with two guys at 6:50, but I couldn't do it," Phillips said today. "I had to get up and walk around. I couldn't do my work thinking about all this."
Sarah Mourer, director of the Miami Innocence Clinic at the University of Miami law school, began looking into Phillips' case after reading about it in New Times. She's looking for an attorney specializing in appeals work who can work for free on the case and will use the law school students to help with paperwork. "The Miami Innocence Project is thrilled to see that Judge Leonard has granted Elroy the opportunity to show his innocence and our clinic will stand by him until justice is done," Mourer said in an email today.
Phillips' son, Elroy Phillips Jr., also learned of the ruling yesterday. He checks the court file almost daily for news of his father's case. "I'm just ecstatic," he said. With the hearing, his father will likely be transferred to a South Florida prison, meaning he can see him for the first time in years. "I'm just so excited about it. This is a big step for us."
More articles on Elroy Phillips:
• West Palm's "most notorious": Big fish or a small scapegoat in the war on drugs?, September 18, 2003
• After a Decade in Prison, Man Proves His Innocence -- Only to See Inaction From Courts, June 16, 2011
• Don't Believe Elroy Phillips Is Innocent? Read the Evidence He Collected Yourself, August 3, 2011
• Elroy Phillips Dug Up Evidence From Prison, but He Still Might Not Get a Chance to Prove His Innocence, August 4, 2011
• Elroy Phillips, in Jail on a Charge He Says He Can Prove Is Bogus, Will Get Day in Court, September 21, 2011
• "In This Place, Everybody Is Hopeless," Says Prisoner With Evidence to Prove He's Not Guilty, August 3, 2011
Eric Barton is editor of New Times Broward-Palm Beach. Email him here, or click here to follow him on Facebook.
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