FRANKLIN DRUG-BUST MISTAKE ANGERED JUDGE

NORFOLK -- The judge who acquitted a Franklin drug defendant in August told the prosecutor he was "shocked" and "stunned" that the state's witnesses misidentified the man as a crack dealer, court records show.

The transcript of the Aug. 24 trial that freed Dexter D. Howell -- an acquittal that led authorities to throw out all 37 state cases from Franklin's June drug bust, the town's largest ever -- shows a judge aghast at a blunder that nearly convicted an innocent man.

Franklin police Sgt. David B. Welch and a confidential informant in the yearlong drug investigation both misidentified Howell, 27, as the man who sold the informant a $20 rock of crack cocaine the afternoon of Feb. 11.

Howell, court records show, was in jail at the time and could not have sold the drugs.

"I am candidly shocked that an error of this magnitude could have been made in our courts," said Southampton Circuit Judge D. Arthur Kelsey. ". . . It appears to be a textbook example of the limitations of in-courtroom identification -- which grieves me."

Kelsey found Howell not guilty of the cocaine distribution charge and excused him from the courtroom moments later.

Because the informant who wrongly identified Howell was used in the other Franklin drug cases, Southampton County Commonwealth's Attorney Richard C. Grizzard is dismissing all of them.

In an interview Tuesday, Grizzard said the informant's mistake made his testimony in the other cases worthless.

Seven other people charged federally in the same citywide drug sting have been convicted or have pleaded guilty. An eighth man's case was dismissed Tuesday in U.S. District Court.

Lawyers for two of the federal defendants said they will seek to have their clients' convictions overturned.

Those two defendants, Lashun Burton, 20, of Franklin, and Tyrell Brown, 21, were accused of selling the most crack of all 45 defendants -- several ounces each, prosecutors said. Both were convicted of conspiracy and drug distribution charges Aug. 9 and are awaiting sentencing.

The faulty informant "was instrumental in convicting my client on several counts," said Brown's attorney, Robert C. Neeley. "He was the only person to see my client selling drugs . . . This certainly should have some bearing on his case."

Howell's incarceration came to light when he took the stand in his own defense Aug. 24. As soon as Kelsey heard Howell's testimony, he called a recess and sent Grizzard to get Howell's jail records.

Grizzard, according to the transcript, seemed as surprised as the judge. "It's obvious he could not have been the individual identified by Sgt. Welch and the informant as making the sale on Feb. 11," Grizzard told the judge. "They are convinced of their identification, but obviously it can't be if he's in jail."

Shortly thereafter, in an unusual move, Kelsey called the sergeant back into the courtroom and questioned him from the bench.

"Sergeant, as I understand it, this gentleman was in jail on the day of the arrest?" the judge asked.

"That's what I understand, Your Honor, yes sir," Welch answered.

"Do you know of any other gentleman that is related to this defendant, that looks like the defendant; has any similar appearances to the defendant?"

"No, sir," Welch said.

Welch was unavailable for comment Friday.

In a Tuesday interview, Welch said that on the night of the drug buy, he was listening to a transmission from the informant's body wire and twice heard him call the dealer "Dexter."

In court, Welch also said he'd known Howell for "three or four years."

"I still in my mind think it was him," Welch told the judge, saying he was about 25 feet from the suspect. "I would testify to it again today if I was asked."

"Then what explanation do you have for this?" the judge asked.

Welch's answer: "I don't have an explanation."

Franklin police have not said whether they have identified the man who actually sold the informant the crack cocaine on Feb. 11.