A lawyer asked a Shelby County judge Thursday to reinstate a lawsuit he says could resolve suspicions that accused murderer and rapist Cleotha Henderson received police protection.
Attorney Gary K. Smith argued before Circuit Court Judge Mary L. Wagner that Memphis police detectives had numerous opportunities to arrest Henderson before the 2021 rape of Alicia Franklin and the 2022 abduction and murder of Eliza Fletcher yet failed to do so.
“They knew who he was and where he was – exactly. They still didn’t arrest him,’’ Smith said of Henderson, a convicted kidnapper who served 20 years in prison prior to Franklin’s rape and Fletcher’s murder. Henderson, 39, is charged with both crimes.
“They knew how dangerous he was … He was clearly being protected by the city for some reason,’’ Smith said.
Smith is representing Franklin, 22, who sued the city of Memphis last fall contending police failed to properly investigate her rape, leading to Fletcher’s murder a year later. Judge Wagner dismissed the suit in March on technical grounds, but Smith is asking her to reconsider her ruling.
Wagner told attorneys for Franklin and the city she expects to issue a written order on Smith’s request soon.
Smith told reporters after the hearing that reinstatement of Franklin’s suit would open the city to discovery, a legal process in which information is obtained through subpoenas and testimony of witnesses. That process could get to the bottom of why police failed to arrest Henderson, Smith said.
“Was he an informant? Through the discovery process, we can determine that. Was he a friend of someone in the police department that spread the word to protect him? We don’t know. The discovery process will reveal that,’’ Smith said.
Lawyers for the city declined comment after the hearing.
In a pleading filed Tuesday, the city’s attorneys said they “adamantly deny’’ police were shielding Henderson, calling the assertion a “speculative” theory.
The developments follow reporting by the Institute for Public Service Reporting that found police didn’t pick up Henderson for questioning on an outstanding warrant for allegedly orchestrating burglaries at a FedEx Freight shipping facility while working there as a security guard in the summer of 2021, weeks before Franklin’s rape. Police failed to question Henderson again in June 2022 – three months before Fletcher’s murder – when he finally was arrested on the FedEx Freight warrant and spent three days in the Shelby County Jail. Those charges were later dismissed and the court records expunged.
“Most suspects want to talk,’’ Michael L. Milnor told The Institute last winter. A former Virginia police chief and detective who runs Justice 3D, a police consulting services firm, Milnor said, “It may be one of those situations where you’ve got to go find him and you just got to sit down in the car and talk to him wherever you find him … but somebody in that (police department) should have been able to get their hands on him.”
Answering Franklin’s suit in December, attorneys for the city admitted police didn’t dust for fingerprints in the vacant apartment where Henderson allegedly attacked Franklin at gunpoint on Sept. 21, 2021. The city also said in its court filing that “MPD did not interrogate Cleotha Abston from September 21, 2021, until September 3, 2022,” when Henderson was arrested for Fletcher’s Sept. 2 death. Police did unsuccessfully “seek to interrogate” Henderson in October 2021, the city said in the 25-page document, but offered no explanation.
In making their case Franklin’s attorneys are citing an affidavit signed by Henderson’s girlfriend, Gwen Brown, which they say shows that MPD may have been protecting Henderson from arrest and prosecution.
In the affidavit Brown says a female Memphis Police Department detective asked to question her days after Franklin’s rape.
“She asked me if Cleotha Henderson was going to be around when she came to talk with me. (She) explained that if Cleotha Henderson was present, she would have to arrest Cleotha Henderson because there were outstanding warrants for his arrest. I told her he was not there.’’
Arguing before Judge Wagner for the city, attorney Tannera Gibson said Frankin’s attorneys were “editorializing” about Brown’s affidavit, which doesn’t establish any misconduct by police.
“It doesn’t bring you anything that would change the outcome in this particular case,” Gibson said.