- Associated Press - Saturday, October 25, 2014

LOUISVILLE, Ky. (AP) - A federal judge is weighing whether to dismiss murder charges against two men accused of killing a federal informant after a Kentucky state trooper mishandled and destroyed evidence. The trooper has since resigned after admitting he didn’t have authorization to dispose of the evidence.

U.S. District Judge Amul Thapar has scheduled a hearing on Nov. 3 in Lexington to review the actions of former detective Jeff Senters.

The hearing comes in the case of Jimmy D. Benge and Gerald Lee Sizemore. Prosecutors are weighing whether to seek a death sentence for the men if they are convicted of conspiring to kill Eli “Big Eli” Marcum in December 2012.

Prosecutors say the pair killed Marcum in Clay County because he gave information to federal investigators about a drug pipeline from Florida.

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Believing authorities already had the knife used to kill a federal informant, Kentucky State Police Detective Jeff Senters threw out a different knife and a burned phone cable found near the stabbed and torched body of Eli “Big Eli” Marcum. No one witnessed the disposal of the items, and no one authorized it.

Senters’ actions prompted the former Trooper of the Year to resign and drew the attention of a federal judge, who is considering dismissing charges against three men in a possible death penalty case because potentially exculpatory evidence isn’t available for testing.

U.S. District Judge Amul Thapar scheduled a Nov. 3 hearing to review Senters’ actions and determine if the case should be dismissed.

Records obtained by The Associated Press detail how Senters helped gather evidence on a rural ATV trail in southern Kentucky, where he found a knife and a yellow cord near Marcum’s remains in December 2012. The records also show, and Senters said, he returned to a witness a cellphone used by Marcum the day of his death without checking the calls made on it, violating state police policy that would require keeping it until the case was over.

Two men, Jimmy D. Benge and Gerald Lee Sizemore, face a possible death sentence if convicted on federal charges of conspiring to kill Marcum because he gave the Drug Enforcement Administration information about a pill pipeline running from Florida to Clay County in the drug-riddled Appalachian area of Kentucky. A third man, Vernon “Red” Delph, pleaded guilty on Oct. 17 to his role in the death and helping dispose of Marcum’s remains.

Benge is charged with paying Sizemore an undisclosed sum to kill Marcum. Senters, the state trooper, resigned Aug. 16. His phone number could not be found and he did not respond to two letters mailed to his address seeking comment.

Marcum went missing in early December 2012. As part of a plea agreement, Delph told prosecutors that Sizemore stabbed and choked Marcum before the two men took the body to a rural area and lit it on fire. After family members found Marcum’s remains along a dirt road in rural Clay County on Dec. 8, police recovered items at the scene, including a small knife a quarter-mile from the remains and a partially burnt telephone cord one yard from Marcum’s head.

At an evidentiary hearing in federal court in Lexington in July before he resigned, Senters said the knife and cord were tossed out because they didn’t appear to have any connection to Marcum’s slaying and he consulted with both the Clay County coroner and the state police DNA analyst before destroying the items on Oct. 1, 2013. Senters said the knife used to kill Marcum appeared to be larger given Marcum’s six-inch puncture wound and the blade found at the scene was small.

“And once I called about the cord and what the lab had told me, no, I didn’t think that the knife, nor the cord, were valuable - or was valuable in this case,” Senters said.

In Kentucky, it is a felony to destroy evidence that may be used at trial without a judge’s order. At the time Senters destroyed the knife and cord, a Clay County judge had also issued an order requiring the preservation of any evidence in a state case brought against Delph.

Defense attorney Kent Wicker said the destroyed evidence could have been used for DNA testing and fingerprinting to explore whether anyone else may have been involved in Marcum’s death. Wicker said the phone could have shown who Marcum spoke with in the hours before his disappearance.

Assistant U.S. Attorney Jason Parman wrote in court briefs that the items were of little to no evidentiary value and their disposal shouldn’t impact the outcome of the case.

In an interview in February, a defense investigator asked Kentucky Medical Examiner Dr. John Hunsaker whether, in his opinion, one of four knives, including the one Senters identified as the murder weapon, was used to kill Marcum. Hunsaker answered “no.”

Senters said he didn’t know agency policy on getting rid of items collected at a crime scene and thus didn’t intend to destroy potentially exculpatory evidence.

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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