The man accused of embezzling the money he had collected for information about the death of Erica Smith in 2003 will get his day in court after all.
Judge Burke F. McCahill ruled Wednesday, Aug. 1, that Roosevelt Henderson should be allowed to withdrawal his guilty plea and enter a plea of not guilty. In February, Henderson entered an Alford plea, where a defendant pleads guilty, but maintains his or her innocence.
"We have to make sure that there is due process and fairness to everyone involved," McCahill said before his ruling. "The court has to have confidence in every plea because we are going to be sentencing someone and giving them a felony record."
HENDERSON IS accused of taking money from two different accounts he set up after Erica Heather Smith disappeared and her body was later discovered. The case remains unsolved.
One of the accounts was for a reward for anyone with information about the case. The second account was for a foundation, intended to be used for a possible educational scholarship or other fund in Erica's name.
Last August, a judge found there was enough evidence to move forward with the embezzlement case, but did not support a charge of money laundering that Henderson was also facing. In September, Henderson was indicted by a grand jury on the embezzlement charge.
Several week ago, Henderson retained new counsel, Joe Ritenour, replacing attorney Raymond Kline. Ritenour filed the motion for the Alford plea withdrawal.
If he is found guilty, Henderson faces a range of possible sentences, from up to one year in the county jail and a fine of $2,500 to up to 20 years in a state prison.
DURING THE AUG. 1 hearing, Jennifer Wexton, one of Henderson’s attorney’s, cited different reasons for the plea withdrawal. When Henderson entered his Alford plea, Wexton said, he did not think that the prosecution would have to prove his fraudulent intent if he had gone to trial.
"That is just not true," she said.
While Wexton said the effectiveness of Henderson’s prior counsel, Raymond Kline, was not the basis of the hearing, she said that Henderson had a viable defense that he could have presented at trial.
McCahill also said he had concerns stemming from times when he had been given documents by Henderson’s former counsel that had not been signed by the defendant.
"The quality of the counsel is not the main question, but it certainly raises concerns about the quality," he said.
AT THE CENTER of the argument for plea withdrawal were two different letters that Henderson had submitted to investigators in the Sheriff’s Office. Included in the Sheriff’s Office file on the Henderson case that was given to both the Commonwealth’s Attorney’s office and Henderson’s attorneys was a letter from late November 2002 in which Henderson indicated his intent to pay back the reward funds.
"He offered to pay it back to the Smith family," Wexton said. "He offered to pay it back to the Sheriff’s Office. He was told neither of those would be appropriate payees."
While reviewing the case file, Henderson’s attorneys found references to a second letter that was submitted to the Sheriff’s Office, this one dated Nov. 7, 2002.
"That letter was never provided to the commonwealth, not provided to previous counsel and not provided to current defense counsel until [July 31], but it was in the Sheriff’s Office investigation file," Wexton said.
Steve Sincavage, an assistant commonwealth’s attorney, said that the investigators in the case had no specific recollection of receiving the Nov. 7 letter, but said the investigators would not have proceeded as they did if the letter had not been received.
"The reason the second letter was generated was because upon receipt of the newly discovered letter, it was deemed insufficient," Sincavage said.
The issues with discovery were the main reason behind McCahill’s ruling.
"We do have an order of discovery in the Circuit Court," he said. "The commonwealth was certainly required to turn over statements from the defendant."
FOLLOWING MCCAHILL’S decision, Sincavage said the Commonwealth’s Attorney’s Office would be looking into the possibility of bringing new charges against Henderson, but did not indicate what those charges could be. Henderson will appear in court Tuesday, Sept. 11, at 9 a.m., one day after the grand jury meets.