EX-COP TO GET NEW SENTENCE

Henderson's 7-Year Term Called 'Unfair'

Former Charlotte County sheriff's narcotics detective Wyatt Henderson may
not have to spend seven years and three months in prison after all.

A federal appeals court Monday ordered the trial court to resentence him
for his December 2003 conviction in the pistol-whipping of a 17- year-old
marijuana peddler.

The decision brings a sordid era for the sheriff's narcotics unit closer to
an end. Henderson was arrested in 2002 on federal police abuse charges amid
a turf war in which he vied with other supervisors for control of the unit.

During the episode, Henderson filed a suit citing his suspension for
discharging a firearm inside the narcotics office was actually in
retaliation for him complaining that other narcotics unit members goofed
off by driving golf balls or lighting firecrackers while on duty.

Eventually, however, Henderson's credibility came under fire after
sheriff's internal investigators confirmed he had submitted a phony college
diploma with his job application. His claims to have been named deputy of
the year and trooper of the year in the past were also proved false.

Henderson, in his appeal, also requested a new trial. He claimed his trial
was unfair because the judge made a half dozen errors in excluding or
admitting certain evidence and testimony.

But the appellate court, in a 32-page opinion, ruled unfounded all but one
of Henderson's claims. And that one claim didn't have a substantial effect
on the outcome of the trial, the appellate court ruled.

"We're happy that the conviction was upheld and we're looking forward to
justice in this case being completed," said Assistant U.S. Attorney Douglas
Molloy.

The 11th District Court of Appeals in Atlanta concluded Henderson's 87-
month prison sentence was unfair because the trial judge, Anne Conway,
counted Henderson's use of a firearm in the assault of the marijuana
peddler as a factor that helped bump Henderson into a mandatory sentencing
range of between 87 months and 110 months.

But since his conviction, the U.S. Supreme Court decided in a similar case,
Booker v. United States, that the facts used to place defendants into
various sentencing ranges must be proven beyond a reasonable doubt.

Henderson's use of a firearm to strike the victim, then-17-year-old
Christopher Grant, was determined only on a "preponderance of the
evidence," the appeals court concluded.

The appellate court also noted that Conway, in sentencing Henderson to 87
months, said that she thought "that probably under the circumstances,
that's a little high ... but that's what the guidelines call for and that's
what I'm obligated to sentence him."

The court noted that judicial rules now allow judges to use their
discretion in deciding whether to stay within the federal sentencing
guidelines.

Henderson could not be reached for comment Tuesday.

Henderson, 46, was convicted of three federal counts: violating the
victim's civil rights by using excessive force, lying to a sheriff's
supervisor to cover up a federal crime and lying to the FBI.

The lies included Henderson's claim to the FBI that he tossed his handgun
in through the window of his patrol car a moment before taking the victim
to the ground during his arrest. Henderson "knew he didn't do that," Molloy
had told the court.

The incident occurred May 21, 2002, after undercover detectives lured
Grant, then 17, to the Port Charlotte Beach Complex to sell some marijuana.
As detectives in unmarked cars closed in, Grant fled in a mini-van.

Henderson, who was the first to pull over the vehicle, ordered Grant to get
out at gunpoint and lie face down. Henderson, who is 6 feet 5 inches tall
and weighs about 250 pounds, then put his knee in the suspect's back and
drove him to the ground.

Fellow former sheriff's narcotics detective Keith Bennett testified he saw
Henderson make a striking motion toward the left side of Grant's face.

When Grant got up, he said, "Why did you have to hit me with the gun?"
Bennett testified.

Bennett and other detectives also testified that Henderson made
incriminating comments after the incident.

At one point, Henderson threw a cell phone across the narcotics office and
said, "Jesus Christ, you can't pistol-whip anybody anymore," Bennett and
fellow former detective Grant Davis testified.

The detectives also said Henderson advised them to omit information about
the pistol-whipping from their reports.

In his appeal, Henderson argued that Conway allowed the prosecution to
elicit improper expert-witness testimony from Grant's oral surgeon. The
surgeon, Dr. Patricia Scott, testified that it was her opinion that a
hairline fracture in Grant's jaw was likely caused by a blow from the side.

The problem with the testimony was that the U.S. Attorney's Office had
failed to provide sufficient notice that Scott would be called as an
expert. So the judge had ordered her testimony to be limited to the facts
about Grant's injuries, not her expert opinions.

However, during Scott's testimony, the judge allowed the witness to testify
about her opinion as to the cause of the fracture.

The error was "harmless" because there was ample other evidence to indicate
that Grant was struck in the jaw by Henderson, the appellate court ruled.

Henderson's appeal also argues that the trial judge should not have
excluded the defense's expert witness on police procedure. The expert would
have testified that an officer who is about to engage in a fight on the
ground should toss his gun away to avoid a suspect getting control over it.

The trial judge excluded the testimony on the grounds that it wouldn't help
the jury understand a fact at issue in the case -- and she had the
discretion to make that call, the appellate court ruled.

Also, Henderson objected to the judge's exclusion of polygraph tests.
Henderson had been given one polygraph test by the FBI. A second test was
done by a polygrapher hired by the defense.

At first, Henderson's responses were scored "inconclusive." After he took
the tests again, however, his responses were considered "truthful."

The appellate court, however, pointed out the scientific community remains
"polarized" over whether polygraph tests are reliable. Therefore, the judge
made no mistake in excluding that evidence.

Henderson also argued the judge erred by allowing the prosecution to
present evidence that former sheriff William Clement, who had hired
Henderson shortly after the sheriff's 2000 election, was removed for fraud.

Henderson argued that the information about Clement could suggest to the
jury "guilt by association," which is not a proper use of evidence of
"other crimes, wrongs or acts."

However, the appellate court concluded that the evidence was actually used
to rehabilitate Bennett's testimony on whether he was bitter over
disciplinary sanctions under Clement.

Clement disbanded the narcotics unit and fired Bennett and Collins. Clement
in 2003 was fined $38,500 for campaign finance violations and charged with
felony official misconduct stemming from his actions to conceal a $5,000
donation from millionaire Barbara Hunt, a friend of Henderson's.

Henderson is out of jail pending appeal on a signature bond. He will be
summoned to a sentencing hearing that won't be scheduled for at least 30
days, according to a court clerk.