Two men plan to plead guilty in a federal drug case in which prosecutors had considered whether to seek the death penalty.
Attorneys for Jimmy D. Benge and Gerald Lee Sizemore filed motions saying the two will plead guilty in a case that involved the death of Eli Marcum.
A federal grand jury had charged that Benge, Sizemore and Renus "Red" Delph conspired to murder Marcum in Clay County in December 2012 because of a suspicion that Marcum had given police information about Benge's drug operation.
Delph, who pleaded guilty in October, had admitted helping to dispose of Marcum's body. He could have been a key witness if Benge and Sizemore had gone to trial.
Never miss a local story.
Delph said he saw Sizemore hold Marcum around the neck and stab him so deeply that Sizemore "effectively skewered" Marcum's midsection, according to court documents.
Benge is charged with leading a drug conspiracy in which he paid for addicts and drug runners to get pill prescriptions at out-of-state clinics, then sold the pills.
Delph's plea deal did not disclose whether he would have been required to testify against Benge and Sizemore, but such deals often require cooperation with prosecutors.
A grand jury made special findings in the case that would have allowed prosecutors to seek the death penalty for Benge and Sizemore.
Delph avoided that possibility with his plea.
Federal death-penalty prosecutions are rare in the federal district that covers the eastern half of Kentucky, including Lexington.
It appears that there have been only two cases involving slayings outside prisons that were charged as capital cases in recent years.
The other was against Eugene Slone, who allegedly killed two people in Knott County in 2012 because he thought they had given police information on his drug activities.
U.S. Attorney General Eric Holder decided against seeking the death penalty against Slone.
In the federal court system, prosecutors can recommend a death sentence, but the U.S. attorney general ultimately makes the decision.
No decision had been announced in the Benge case. The pending guilty pleas would indicate the government has agreed not to seek the death penalty in the case.
Attorneys for Sizemore and Benge had argued the charges against them should be dismissed because a state police detective who investigated — but has since resigned — threw away a small knife that was lying on an all-terrain vehicle trail near Marcum's body and a piece of telephone cord found a few feet from Marcum's head.
The items should have been available for the defense to test in asserting that Benge and Sizemore were not involved in the crime, their attorneys argued.
The prosecutor in the case, Assistant U.S. Attorney Jason D. Parman, argued against dismissing the charges, saying the detective had no reason to think the items were of any value in the case.
U.S. District Judge Amul Thapar had not yet ruled on dismissing the charges.