April 6, 2001, is a day that has haunted Elroy "Eighty-Six" Phillips. That's the day West Palm Beach cops say they bought nearly a gram of coke from him outside an apartment building at 625 Eighth St. They claimed they paid him $50 for the drugs, and for that, he could spend three decades in prison.
The bust was sketchy from the beginning. The surveillance equipment that had been watching Phillips for weeks was oddly missing that night, and the cops claimed they somehow forgot to fill out a police report afterward. An unsigned, undated report showed up at Phillips' federal trial on gun and drug charges.
It seemed like the cops had set Phillips up for a fall, and fall he did. Even though he was acquitted of all the other charges, U.S. District Judge Joan A. Lenard in 2003 sentenced Phillips to 30 years in prison -- far more than the few months most might face for allegedly selling $50 in cocaine.
From there, Phillips, now 44, began a nonstop, decadelong campaign to get his conviction overturned. In 2003, I wrote a cover story in New Times about his efforts, and since then, he's been calling or emailing me a few times a year about some new development or evidence he's uncovered.
Now, a decade after his original conviction, Phillips has brought forward evidence that proves his innocence. The new documents and testimony show that cops never bought cocaine from him on April 6, 2001.
Common sense would dictate that the next step would be Phillips walking free. But
sometimes, as is the case here, the justice system simply fails.
"Welcome to the illusion that is the American justice system," says Randee Golder, the West Palm Beach attorney who represented Phillips at trial.
At the trial in 2002, prosecutors described Phillips as a kingpin and enforcer of the hood off North Tamarind Avenue in downtown West Palm. After his conviction, police Capt. Dennis Crispo, now an assistant police chief, lauded the lengthy sentence for getting a "badass" and "dangerous element" off the streets.
Phillips claimed from the beginning that they targeted him because he had made decent money from his lawn business. Cops can't believe a black man in the ghetto can make good money, he said.
After his conviction, Phillips didn't give up his fight against the coke charge. He appealed and his sentence was reduced to 24 years. But his conviction was upheld, so he hired a private detective.
P.I. Ralph Marston had heard about Phillips' case from a fellow investigator and agreed to take on the case for a couple of hundred bucks, far less than his usual fee. Phillips urged Marston to research the cop who supposedly bought drugs from him and the confidential informant who testified at trial that Phillips was a big-time dealer.
The cop was Michael Ghent, who had worked in the department's organized-crime section. Marston started by hunting for police documents on the drug buy. Police records showed that no cocaine had been put into evidence the night of April 6, 2001.
Even better, records showed that Ghent wasn't on duty that night. His timecard, punched for other days during that pay period, show he never clocked in that day.
In fact, Ghent was attending a hostage-negotiation class that night at Palm Beach State College. Marston then took a statement from Jack F. Maxwell, who was teaching the class (click here for the statement). Maxwell didn't recall if Ghent was in his class that night, but Maxwell said he wouldn't have given Ghent his certificate of completion if he hadn't been there. And Maxwell had given his students a test that night -- a test Ghent took.
Marston figured Ghent must have been a dirty cop, and in February 2007, that appeared to have been confirmed. The West Palm Beach Police Department charged Ghent with bribery, solicitation of prostitution, and perjury. Ghent had allegedly strong-armed a West Palm massage parlor into paying him protection money in cash and sex. Ghent took payments of as much as $12,500 and had sex with women at the now-closed Relax With Us II at least 13 times.
In April 2007, Ghent, who couldn't be reached for comment, cut a deal with prosecutors that allowed him to escape punishment for the charges. In exchange, he agreed to do 60 hours of community service and give up his certification to be a cop (click here for the plea documents). After completing the deal, prosecutors dropped the charges, meaning Ghent avoided having a guilty verdict appear on his record. Ghent walked free on charges that could've landed him in prison for decades.
With the information on Ghent, Marston figured he had what he needed to prove Phillips was innocent. But he kept digging and went looking for the confidential informant who testified at trial. The woman agreed to give Marston a statement about her involvement in the case. She said that Ghent had told her to "set a price" for fabricating evidence against Phillips. Federal prosecutors gave her at least $9,600. And Ghent gave her more -- she told Marston that she began a romantic relationship with Ghent. She said she moved in with him while helping convict Phillips.
Marston, a former Orange County cop, says what bugged him about the case was that cops aren't supposed to fabricate evidence to get a conviction. "I'm not saying Elroy didn't do bad things in the past," Marston says, "but what they say he did, he didn't do."
All this evidence to prove Phillips' innocence may not amount to much. He has exhausted his appeals, and his only option now is to ask the judge who sentenced him to reconsider. Golder, who represented him at trial, says that's unlikely, especially since Phillips doesn't have a lawyer. In 2009, Golder took the rare move of sending the federal prosecutor on the case a letter supporting Phillips' attempts to get a new trial (click here for a copy of the letter).
In 2008, Phillips filed his own motion to overturn his conviction, a 100-page filing typically called a 2255 after the U.S. code that governs it. Lenard has yet to rule on the request and hasn't indicated if Phillips will even get a hearing to present his new evidence.
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Phillips' 68-year-old mother, Cynthia Phillips, looked into hiring an attorney for her son. A retired seamstress, she can't afford the $30,000 it would cost. "One of them told me, 'Unless you have a winning lottery ticket, I can't do anything for you,'" she said from her home in Jacksonville. "I don't have that kind of money, so all I can do is hope and pray they let him out."
For his part, Phillips says he's holding on to the dimming hope that the judge will take notice of the new evidence. By phone from federal prison in Kentucky, he said: "I know it's gonna happen eventually. I just need to stay in the struggle."
If he doesn't, he'll stay in prison until May 5, 2022. He will have spent half his life behind bars for a crime he can prove he didn't commit.
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