DEFENSE ATTORNEYS 'DECIDED TO GO FOR THE HAIL MARY PASS'

Man caught with trailer load of pot found not guilty

The defendant claimed he never got out of the cab when the second load --
the pot -- was put on the truck.

Defense attorneys David Boone and Michael Morchower have done enough drug
cases to know this one sounded like a loser.

In March -- on a Friday the 13th no less -- their client had been caught on
Interstate 81 in Wythe County driving a tractor trailer loaded with just
under a ton of marijuana.

State police estimated its street value at $6.5 million, and called it the
largest highway seizure of pot in Virginia history.

What's more, a drug agent maintained that the truck's driver, a Jamaican
immigrant who now lives in New York, had admitted knowing that the
plastic-wrapped bundles of marijuana had been stuffed in the back of the
truck alongside a load of mangos from Texas.

"We felt we were doomed," Boone said.

Boone and Morchower, both Richmond attorneys, told their client that juries
almost always believe police officers, and they rarely turn loose a
defendant when huge amounts of drugs are involved. If he pleaded guilty, he
could get as little as six years in prison. If he went to trial and lost,
he was looking at 12 to 14 years.

"Ninety-nine percent of my clients would have folded," Boone says. "I would
have folded."

But O'Neil Henry wouldn't give in. He swore he didn't know about the pot in
back of the truck. He wanted to take his case to a jury.

On Monday in U.S. District Court in Roanoke, Boone said, he and Morchower
"decided to go for the Hail Mary pass" -- they argued that the state
trooper had changed his story about Henry's "confession."

On Monday evening, after less than three hours behind closed doors, the
jurors announced their verdict: Not guilty.

Assistant U.S. Attorney Anthony Giorno said he doubts that defense
attorneys' efforts to attack the state police agent's testimony was the
"make-or-break issue" in the case.

At least one juror, Lloyd A. Young of Roanoke, agreed. "I don't think that
made any difference. They pick on them poor police officers -- like they're
the ones on trial."

Young said he simply believed Henry's testimony that he never got out of
the cab when his tractor trailer's second load -- apparently the shipment
of pot -- was put on the truck.

"It was a crazy trial," Young said. "I just don't think there was enough
evidence to convict him."

A co-defendant, fellow New Yorker Dennis A. McCarthy, 35, is scheduled for
trial today.

Henry, who is a naturalized U.S. citizen, didn't have a criminal record
before he was arrested this past spring in Wythe County. He has driven a
delivery truck for the New York Times for the past seven years, and says he
occasionally picked up extra money as a long-distance driving partner with
McCarthy.

He said he and McCarthy took on a three-quarters' load of mangos in Texas
along the Mexican border and then filled the rest of the trailer with a
second load arranged by a man that McCarthy talked to at a truck stop
farther north.

Henry claimed in court that he stayed in the cab while the second cargo was
loaded. With the doors open, he said, he couldn't see what it was, and
McCarthy never told him.

Just before noon March 13, Henry was behind the wheel and McCarthy was in
the sleeper when State Police Sgt. H.F. Wray spotted an illegal blue light
bulb on the back of their cab.

He pulled them over, ran a license check and found that both of their
driver's licenses had been suspended for failing to pay fines.

Wray asked if he could search the truck. He said both agreed.

By then, Special Agent Andrew Metro had arrived. Wray opened the back of
the trailer and saw stacks of black clothing bags. He drew his gun and
ordered the truckers down on the ground, and Metro handcuffed them.

Wray opened one bag and found bales wrapped in plastic. He slit one open
and found marijuana inside.

Metro said in a police report that when he questioned Henry about 45
minutes later, Henry told him: "I'm not sure where we were when we picked
up the marijuana. I wasn't paying attention to where."

Boone says he told Henry last week that the case looked bad for him, but
Henry told him: "I'll trust in God."

On Friday, Boone and Morchower got a fax from Giorno. The prosecutor said
he had been going over the evidence with Metro, and Metro had informed him
of a new piece of information: "I was advised by Agent Metro that when Mr.
Henry was lying on the ground ... after marijuana was found, he made a
spontaneous statement that, 'This was my first time, I knew we shouldn't
have done it.'"

Boone said he and Morchower were perplexed that this seemingly damning
statement had not been included in previous police reports, or passed on to
the prosecutor until the Friday before the trial.

But on the witness stand, Metro said that Giorno's fax was inaccurate:
Henry hadn't just blurted it out -- he had made the statement only after
Metro began questioning the two men as they lay on ground. This was an
important point, because Henry hadn't yet been read his rights.

And, Metro testified, Giorno didn't have the wording of the statement right
either -- Henry had actually said "We should not have done it. I needed the
money."

Metro said it was all just a misunderstanding between him and Giorno.

Giorno said in an interview later that he takes full blame for any
confusion: "I don't believe that Andy Metro was attempting to mislead me or
anyone else."

When Henry's turn to testify came, he claimed he hadn't said anything to
Metro while he was on the ground. And he said his later statement about
"when we picked up the marijuana" had been based on what the officers had
told him -- that there was pot in the truck.

At 8:15 p.m. Monday, the jury indicated it had a decision. Henry was
sobbing -- Boone says his tears were splashing onto the defense table -- as
he waited for the verdict.

Then Henry's brush with the law, which had begun on a Friday the 13th, was over.

Outside the courtroom, he turned to Boone and told his lawyer: The jury had
acquitted him on his 37th birthday.

Checked-by: Joel W. Johnson