Defense attorneys for police officers accused in probe file a flurry of motionsTulsa World by Omer Gillham - January 2, 2011
Defense attorneys for police officers accused of conspiracy and perjury have filed a flurry of motions asking for proof of an actual police conspiracy and asking the presiding federal judge to combine or throw out alleged duplicate charges in the indictment. Two days after failing to get a federal indictment dismissed against Officers Jeff Henderson and Bill Yelton, attorneys for the officers filed 15 pretrial motions on Dec. 22, U.S. District Court records show. The criminal trial for Henderson, 37, and Yelton, 50, has been reset for June 20, records show. Henderson and Yelton are charged in a police corruption probe that became public in November 2009. The officers were charged in the same indictment unsealed July 20. Henderson was named in 58 counts: 22 related to perjury, 20 related to alleged civil rights violations, 12 connected to drug crimes, two witness tampering charges, one firearms count and one attempted bribery count. Yelton was charged with seven counts: four related to alleged civil rights violations, two related to purported witness tampering and one connected to a perjury allegation. An eighth charge of alleged retaliation against a witness was added in September by U.S. Attorney Jane W. Duke, a special prosecutor from eastern Arkansas leading the investigation of police misconduct. Attorneys Stephen Jones and Robert Wyatt IV represent Henderson, while Anthony Allen and Scott Graham represent Yelton. Duke said her office would file a response to the pretrial motions filed by the officers' attorneys.
Combine and conquer
On Dec. 20, U.S. District Judge Bruce Black of New Mexico rejected a motion to dismiss all counts against Henderson and Yelton. On Dec. 22, the deadline for pretrial motions, Jones and Wyatt filed a motion asking Black to combine or merge 20 counts of perjury into two counts. The perjury counts involve 10 allegations each that Henderson lied on the witness stand in two separate cases, the indictment states. In one case, Henderson allegedly gave 10 false answers when questioned about an alleged drug buy in May 2007 that sent Larry Wayne Barnes Sr. and his daughter, Larita Annette Barnes, to federal prison. The Barneses were freed from prison after the informant said the buy never occurred, records show. In a second case, Henderson allegedly gave 10 false answers when questioned about the presence of a defendant before an arrest on a weapons charge, records show. The defendant, Ronald Crawford, was not present at his address Jan. 5-6, 2009, yet Henderson repeatedly stated on the witness stand that he was, the indictment states. During Crawford's hearing, Henderson was asked several times if Crawford was present at his residence before the arrest. Henderson answered in the affirmative each time, court records show. Jones and Wyatt argue that Henderson's answers during Crawford's trial are essentially the same substance involving the same oath, same hearing and same day at the same location. The same legal argument applies to the alleged perjury counts involving the previous Barnes case, the lawyers contend. To divide his answers into 20 counts of perjury could subject him to multiple punishments or double jeopardy in violation of the Fifth Amendment and federal court rules if a jury found him guilty of such crimes, the lawyers argue in their motions. Henderson denies any wrongdoing as a police officer, including committing perjury under oath. In a similar motion, Jones and Wyatt ask Black to combine or dismiss eight counts of drug conspiracy or drug possession. Making a similar argument grounded in the Fifth Amendment and multiplicity rule, the lawyers state that multiple counts of drug possession and drug conspiracy for alleged crimes committed in the same time frame and place would subject their client to duplicate punishment for one criminal act, records show. In addition to Henderson and Yelton, Officers Nick DeBruin, 38; Bruce Bonham, 53; and retired officer Harold R. Wells, 59, were charged in a separate indictment July 20. Their trial is scheduled for March 21. The police probe involves allegations that police have stolen drugs and money, planted drugs on defendants, intimidated witnesses and violated the civil rights of numerous people. Thus far, 27 people have been freed from prison, had cases dismissed, sentences reduced or have been granted new trials as part of the police investigation, a Tulsa World investigation shows.
Request for statements
An additional pretrial motion by Jones and Wyatt includes a request for statements expected to be used by Duke to show alleged conspiracies between Henderson and other police officers or the former federal agent Brandon McFadden, 34. The motions ask for statements and other evidence showing the government's legal grounds for claims of police conspiracy. Henderson is accused of 11 conspiracies involving distributing of drugs, suborning perjury, deprivation of civil rights and witness tampering, the indictment shows. One of Henderson's chief accusers is McFadden, a former ATF agent who worked with Henderson on numerous drug busts. McFadden has implicated himself and Henderson in the alleged conspiracy to frame the Barneses in May 2007, court records show. McFadden pleaded guilty to drug conspiracy May 6 in federal court and is cooperating with Duke's office. The indictment against Henderson also mentions numerous unindicted co-conspirators who may be offering testimony during the police trial, records show.
In addition to McFadden, former police officers expected to be witnesses are Eric J. Hill, Callison Kaiser and John K. Gray. Gray pleaded guilty June 14 to stealing money during an FBI sting in 2009. He is cooperating with federal prosecutors. Hill and Kaiser have admitted stealing money during a drug arrest. They have been given prosecutorial immunity and are cooperating with Duke's office, a World investigation shows. Additional pretrial motions include efforts by Yelton and Henderson to be freed while they await trial. Jailed July 20, the officers have failed in two attempts to be released on bail while they await their trial. During a July detention hearing, Yelton and Henderson were ordered held without bail because the court determined they were a danger based on testimony from the hearing, records show. In August, Black affirmed the detention order, stating, "The court finds there are no conditions that would assure public safety and affirms the order of the magistrate judge." Jones' motion states that new evidence has possibly come to light that could permit Black to reconsider the ruling to keep the officers jailed.