842United States Court of Appeals,
Ninth Circuit.
Gary BENN, Petitioner-Appellee,
v.
John LAMBERT, Superintendent of the Washington
State Penitentiary, Respondent-
Appellant.
No. 00-99014.
Argued and Submitted Nov. 5, 2001--Pasadena,
California.
Filed Feb. 26, 2002.
Following affirmance
on direct appeal, 120
Wash.2d 631, 845 P.2d 289,
of his state murder convictions and death sentence, and denial of state habeas
relief, 134
Wash.2d 868, 952 P.2d 116,
petitioner sought habeas relief. The United States District Court for the
Western District of Washington, Franklin D. Burgess, J., granted petition and
ordered new trial. State appealed. The Court of Appeals, Reinhardt, Circuit
Judge, held that: (1) prosecution's withholding multiple pieces of critical
impeachment evidence that would have seriously undermined credibility of key
prosecution witness violated Brady; (2) prosecution's withholding experts'
findings that fire had accidental origin,
which would have undermined prosecution's profered motive for killings,
aggravating circumstance, and premeditation, violated Brady; and (3) state court's determinations
to contrary were unreasonable application of established Supreme Court law.
Affirmed.
West Headnotes
[1]
Habeas Corpus
842
District court's decision to grant a petition for a writ of habeas
corpus is reviewed de novo. 28
U.S.C.A. § 2254.
[2]
Habeas Corpus
452
A state court decision is "contrary to" clearly
established federal law for purposes of Antiterrorism and Effective Death
Penalty Act (AEDPA) if it fails to apply the correct controlling authority from
the Supreme Court. 28
U.S.C.A. § 2254(d).
[3]
Habeas Corpus
450.1
A state court decision constitutes an "unreasonable
application" of clearly established federal law if the state court
identifies the correct governing legal rule but unreasonably applies it to the
facts of the particular state prisoner's case.
28
U.S.C.A. § 2254(d).
[4]
Habeas Corpus
452
A state court's addition, deletion, or alteration of a factor in a
test established by the Supreme Court constitutes a failure to apply controlling
Supreme Court law under the "contrary to" clause of Antiterrorism and
Effective Death Penalty Act (AEDPA). 28
U.S.C.A. § 2254(d).
[5]
Habeas Corpus
450.1
When analyzing the state court decision to determine if there was
"clear error," habeas court must
first consider whether the state court erred;
only after it has made that determination may it then consider whether
any error involved an unreasonable application of controlling law for purposes
of habeas petition. 28
U.S.C.A. § 2254(d).
[6]
Criminal Law
700(2.1)
[6] Criminal Law
700(4)
In order for nondisclosure to constitute Brady violation, evidence at issue must be
favorable to the accused, because it is either exculpatory or impeachment
material, the evidence must have been suppressed by the State, either willfully
or inadvertently, and prejudice must result from the failure to disclose the
evidence. U.S.C.A.
Const.Amend. 14.
[7]
Criminal Law
700(2.1)
Evidence is deemed prejudicial, or material, for purposes of Brady violation only
if it undermines confidence in the outcome of the trial
U.S.C.A.
Const.Amend. 14.
[8]
Criminal Law
700(2.1)
For purposes of determining prejudice under Brady rule, the withheld evidence must be
analyzed in the context of the entire record., analyzing all suppressed evidence
together. U.S.C.A.
Const.Amend. 14.
[9]
Criminal Law
700(6)
Disclosure requirements set forth in Brady apply to a prosecutor even when the
knowledge of the exculpatory evidence is in the hands of another prosecutor.
U.S.C.A.
Const.Amend. 14.
[10]
Criminal Law
700(4)
Prosecution's failure to disclose
multiple pieces of critical impeachment evidence that could have been used to
undermine credibility of jailhouse informant who testified that defendant had
admitted committing murders was sufficient to violate Brady; state failed to disclose that witness,
while acting as informant in other cases, had stolen both drugs and money and
lied to police about it, that detective had written deactivation memo stating
that witness could no longer work as informant because he could not be trusted,
that witness had broken into police evidence room and stolen drugs, that witness
had smuggled guns into prison and then told prison officials about their
presence after concealing his own involvement; and that witness continually used
drugs during his time as informant. U.S.C.A.
Const.Amend. 14.
[11]
Criminal Law
700(4)
Prosecution's failure to disclose additional impeachment evidence
concerning key witness in murder prosecution was not rendered immaterial and
nonprejudicial by disclosure of other impeachment evidence, where additional
evidence that witness was drug abuser, that he had record of criminal misconduct
while acting as informant for police, that he had repeatedly lied to police,
that he had not been prosecuted for his drug use, and that he was using drugs
during trial, was far more damaging than disclosed impeachment evidence of
witness's history as a paid informant in drug cases, his prior convictions,
reduction in his arson sentence, and fact that state was paying his motel and
food bills. U.S.C.A.
Const.Amend. 14.
[12]
Criminal Law
700(3)
Nondisclosure of specific Brady impeachment evidence that key
prosecution witness had lied to police about defendant's involvement in series
of murders unrelated to homicides for which he was on trial, as evidenced by his
failure to produce promised videotape, was prejudicial.
U.S.C.A.
Const.Amend. 14.
[13]
Criminal Law
700(4)
The Brady rule requires prosecutors to disclose
any benefits that are given to a government informant, including any lenient
treatment. U.S.C.A.
Const.Amend. 14.
[14]
Criminal Law
700(4)
Government committed Brady violation in failing to disclose to
defense that prosecutor arranged during trial to have key prosecution witness
released without being charged after he was stopped for traffic offense and
picked up on outstanding warrants and that prosecutor's office dismissed charges
brought by local police department against witness for burglary; undisclosed
benefits that witness received would have impeached him more effectively than
disclosed evidence that he was granted immunity from arrest during trial.
[15]
Criminal Law
700(2.1)
[15]
Criminal Law
700(4)
State cannot satisfy its Brady obligation to disclose exculpatory and
impeachment evidence by making some evidence available and asserting that the
rest would be cumulative.
[16]
Criminal Law
700(4)
Undisclosed evidence that an informant had previously participated
in a heroin investigation was important impeachment evidence that could have
been used to discredit the informant's trial testimony that he had not
previously participated in that type of investigation.
[17]
Criminal Law
700(4)
In determining whether the failure to disclose impeachment evidence
about prosecution witness is sufficiently prejudicial to rise to the level of a Brady violation, court analyzes the totality
of the undisclosed evidence in the context of the entire record.
[18]
Criminal Law
700(4)
While the good faith or bad faith of the state is irrelevant when
material impeachment evidence has been withheld from the defense, stricter
standard of materiality--a standard of materiality that is more favorable to the
defendant--applies when the prosecutor has
knowingly relied on or condoned the use of perjured testimony.
[19]
Habeas Corpus
480
State appellate court determination that failure to disclose
impeachment evidence about key prosecution witness was not prejudicial Brady violation was unreasonable application
of clearly established Supreme Court law, warranting federal habeas relief,
where nondisclosure of impeachment evidence, which would have revealed that
witness, who offered only testimony supporting some of state's profered motives
for killing, would have revealed witness to be unreliable, a "liar for
hire," and "ready to perjure himself," coupled with failure to
disclose that witness would testify until day before trial, undermined
confidence in the outcome of murder trial.
[20]
Criminal Law
700(3)
Prosecution's failure to disclose exculpatory evidence that fire at
defendant's trailer was accidental and not result of arson was sufficient,
standing alone, to constitute Brady violation in murder trial in which
evidence could have served to rebut prosecution's theory that murder was
motivated by arson- insurance fraud scheme.
[21]
Criminal Law
700(3)
Failure to disclose material, exculpatory Brady evidence that fire at defendant's
mobile home was not result of arson was not excused by disclosure of earlier,
tentative report suggesting that fire might have been accidental, where that
report was later displaced by interim report in which experts found no basis for
believing that fire was accidentally caused by furnace.
[22]
Criminal Law
700(3)
Failure to turn over exculpatory expert reports indicating that
mobile home fire was accidentally caused, which undermined prosecution's theory
that murder was motivated by arson-insurance fraud scheme, constituted Brady violation even though defendant could
have independently discovered experts' conclusions by interviewing them, where
prosecution had supplied defendant with earlier inculpatory
evidence that experts' views supported state's theory.
[23]
Criminal Law
700(2.1)
Defendant furnished with inculpatory evidence by the state is not
required to assume that the state has concealed material information and has
thereby obligated him to ascertain the Brady material on his own.
[24]
Habeas Corpus
480
State court determination that prosecution's withholding
exculpatory evidence regarding accidental origin of fire was not material Brady violation constituted unreasonable
application of clearly established Supreme Court precedent, warranting federal
habeas relief, where evidence undermined prosecution's theory that murder was
motivated by arson-insurance fraud scheme and its main support for the
aggravating factor of common scheme or plan, as well as its contention that the
killings were premeditated, and prosecution misled defendant by disclosing
portion of experts' findings that, when read alone, would lead to conclusion
directly opposite to one they reached.
*1044
Suzanne Lee Elliott,
& David B. Zuckerman, Seattle, WA, for the petitioner-appellee.
John
J. Samson,
& Donna
H. Mullen,
Assistant Attorneys General, Olympia, WA, for the respondent-appellant.
Appeal from the United
States District Court for the Western District of Washington, Franklin D.
Burgess, District Judge, Presiding. D.C.
No. CV-98- 05131-FDB.
Before:
REINHARDT, TROTT and W.
FLETCHER,
Circuit Judges.
OPINION
REINHARDT,Circuit Judge.
The State of
Washington, through the superintendent of the Washington State Penitentiary,
appeals the district court's decision to grant Gary Michael Benn's habeas corpus
petition, arguing that the district judge erred in holding that the Washington
State Supreme Court decision was contrary to or involved an unreasonable
application of Brady
v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963),
and its progeny. Because we
hold that the state court's decision that there was no Brady violation in Benn's case constitutes an
unreasonable application of clearly established Supreme Court law,
we affirm.
I. FACTUAL
BACKGROUND
On February 10, 1988,
Gary Michael Benn made a 911 call to the Pierce County Sheriff's Department from
the home of his half-brother, Jack Dethlefsen, and reported finding his
half-brother's body as well as the body of his half- brother's friend, Michael
Nelson. Officer Junge of the
Pierce County Sheriff's Department arrived at the scene three minutes later and
observed the bodies of the two victims on the floor in the living room.
Both men had been shot once in the chest and once in the back of the
head. He checked them for
vital signs and found none. The
bodies were still warm and bleeding, suggesting that both men had been killed
recently.
There was a bullet
hole in the couch in the living room consistent with someone having been shot
while on the couch. There
were also bloodstains that matched Dethlefsen's blood type on both the couch
itself and on a newspaper that was on it.
The medical examiner testified that Dethlefsen was shot in the chest
while on the couch because only the chest wound would have allowed him to move
around and end up on the floor where the police found him.
There was a .45
caliber handgun on the floor between the two bodies and a baseball bat next to
Dethlefsen's body. Dethlefsen's
head rested next to a gun cabinet and the glass face of the cabinet, which had a
shotgun in it, had been broken. Police
found a boot print that matched Benn's boot on a piece of broken
glass next to Dethlefsen's elbow. There
was also blood on one of Benn's boots with spatter patterns consistent with
Benn's having shot Nelson in the head while standing next to his body.
Benn was charged with
two counts of premeditated murder with the aggravating circumstance that the
murders were part of a common scheme or single act, and was given notice of the
government's intention to seek the death penalty. The defense conceded at trial that Benn had shot both
Dethlefsen and Nelson, but claimed that the shootings were in self-defense after
a spontaneous argument between Benn and Dethlefsen. The prosecution, however, contended that Benn had
planned the killings primarily in order to cover up his participation with the
victims in an arson-insurance-fraud scheme.
At trial, the prosecution relied heavily on various inculpatory
statements that Benn had allegedly made to Roy Patrick, a "jailhouse
informant" *1045 who was in Benn's cell block while Benn was
awaiting trial, as well as on highly circumstantial evidence relating to the
alleged arson.
A. ADDITIONAL
EVIDENCE AT TRIAL
On the day of the
shootings, Benn had been at Larry Kilen's barbershop before he went to
Dethlefsen's house. While at
the barbershop, Benn spoke to Dethlefsen on the phone and Kilen heard him say
"What the hell is going on? I
will be right back--I will be right there.
What's the matter? What
is that?" Benn told Kilen that
Dethlefsen was drunk and wanted him to come over because
he had fallen down. Multiple
witnesses at trial testified that Dethlefsen was an alcoholic, and his autopsy
revealed that he had a blood alcohol content of 0.07 at the time of his death. Similarly, Nelson's autopsy revealed that he had a
blood alcohol content of 0.11.
Benn denied that he
went to Dethlefsen's house with the intention of harming either Dethlefsen or
Nelson. A police search of
Benn's car revealed that he had a .22 caliber pistol in the car that he had not
taken inside the house with him. Benn
did not testify at the trial and much of his version of the events was presented
through statements he made to his brother, Monte Benn ("Monte").
Monte testified that
Benn had described the following series of events to him: When Benn went into Dethlefsen's house on the day of the
shootings, he found a piece of paper on the kitchen counter with Gail Fisk's
phone number on it. Fisk was
Benn's ex girlfriend with whom he had been trying to reconcile. Benn thought
that Dethlefsen and Nelson were harassing Fisk because he had seen Nelson's car
at Fisk's house on occasion. Benn
had questioned Dethlefsen about Fisk previously but Dethlefsen had denied
harassing her. After Benn
discovered the note with Fisk's phone number on it, he took the note into the
living room and confronted Dethlefsen.
In response, Dethlefsen said, "Well Benny, you got me" and
reached for the .45 caliber gun that he routinely kept on his living room coffee
table. Benn then grabbed the
gun and shot Dethlefsen in self-defense.
After being shot, Dethlefsen moved toward the gun cabinet.
Nelson then got up and threw a beer can at Benn. Benn remembered shooting
Nelson, but did not remember much else.
Monte testified that
he got the impression that the shooting was in self- defense.
He also told the jury that Dethlefsen had a reputation for violence in
the community. Other evidence
presented at the trial corroborated parts of Benn's story.
Experts testified that the path of the bullet that struck Dethlefsen's
chest and then entered the back of the couch was consistent with Dethlefsen
being in the act of rising from the couch at the time he was first shot.
Moreover, Deputy James Jones testified that Dethlefsen probably broke the
glass face of the gun cabinet "as he fell ... after being wounded" or
while he was "trying to get a weapon."
The defense theory was that Benn shot Dethlefsen a second time because
Dethlefsen was trying to get another gun. During the investigation, the police
also found an empty beer can underneath Nelson's right knee.
This was consistent with Benn's claim that Nelson threw a beer can at him
while he was standing next to the living room table near where the bodies were
found.
Roy Patrick, a
"jail house informant" who shared a cell with Benn when Benn was
awaiting trial, testified on behalf of the prosecution.
According to Patrick's testimony, Benn confessed to him and asked Patrick
to help him find someone "on the outside" who would be willing to take
the blame for the murders. Patrick
testified that Benn drew diagrams of the murder scene and gave
him details about the murder to relay to the person he found *1046 so
that the person's statements would be believable.
The prosecution's
theory was that the shootings were part of a common plan or scheme.
Patrick's testimony provided critical support for that theory.
Specifically, he testified that Benn told him about his involvement in a
conspiracy with Dethlefsen and Nelson to perpetrate an insurance fraud.
According to Patrick's testimony, Benn, Dethlefsen, and Nelson staged a
"burglary" of Benn's trailer and collected the insurance.
Then, a few months later, they burned down the trailer and collected
insurance again. Both times,
however, Benn refused to share the proceeds with Dethlefsen and Nelson.
Nelson and Dethlefsen then threatened to disclose the crimes to the
police, and Benn killed them to keep them from doing so.
Benn did in fact
report a burglary of his trailer on October 12, 1987, but the only evidence of
an insurance fraud with respect to that burglary (aside from Patrick's
testimony) was the fact that Benn reported that ivory carvings were taken in the
burglary and the police recovered some ivory figures from Dethlefsen's bedroom
closet after he was killed. After
the trial, however, a friend of the family stated that the half-brothers both
owned ivory figures from Alaska.
Similarly, there was a
fire at Benn's trailer on December 11, 1987, but there was little, if any,
evidence, aside from Patrick's testimony, that the fire was intentionally
started. There was testimony
that Dethlefsen, an electrician, had worked on the furnace in Benn's trailer and
that some possessions that Benn normally kept in the trailer were not there on
the day of the fire. Additionally, Benn did tell Monte that he was nervous about
fire insurance fraud charges being filed against him because he claimed more
than he should have after the fire, but he never told Monte that he had started
the fire. The prosecution emphasized that Benn sent in a payment for his home
insurance on the day of the fire. According
to the insurance agent, however, the payment was not late and it was to cover
January and February insurance. Benn had already made payments to insure the trailer
for December, the month of the fire.
The defense attempted
to prevent the arson-insurance-fraud theory from being mentioned at trial by
arguing in a motion in limine that there was no evidence of arson.
In ruling that the information was admissible, the trial court said
"This is probably the key decision in this case."
The trial judge went on to state that:
So far as the probative value is concerned, it goes to the very
heart of the case. It is the
kind of evidence that the State must and needs to prove if it's going to prove
the aggravating factor that is involved in this case, and if it is going to
prove premeditation. Without
it, the State doesn't have a case for aggravated murder, or maybe doesn't have a
case for pre-meditated murder.
It is an essential ingredient.
In addition to
testifying about Benn's burglary-arson-insurance-fraud motive, Patrick also
testified that Benn wanted to kill Dethlefsen because Dethlefsen had removed
Benn from his will and had given Benn's portion of his estate to a friend named
William Hastings. Hastings
testified that he was listed as a beneficiary in Dethlefsen's will, although
there was nothing in the estate because Dethlefsen was so much in debt.
Hastings did, however, get $40,000 from a separate life insurance policy.
Patrick did not say anything about a life insurance policy.
Finally, Patrick
testified that Benn told him that he had tried to hire someone named
"Pete" to kill Dethlefsen for $500 but then changed his mind. Benn
told Patrick that he wanted whoever took the rap for the murders to kill Pete.
The prosecution *1047 emphasized this point in closing arguments noting
that Benn tried to "reach out" and kill someone from prison.
The defense sought to
impeach Patrick on cross-examination by establishing that Patrick was in jail
with Benn because he had pled guilty to and was awaiting sentencing for
second-degree arson. There
was a 6 to 12 month sentencing range for this offense and the prosecution had
originally asked for a 9 month sentence.
Based on Patrick's cooperation, he received 6 months rather than nine.
With good time credits for his work in prison, however, Patrick would
have needed to serve only an additional 35 days even if he had received
the 9 month sentence originally sought by the prosecutors.
Moreover, the prosecution downplayed the importance of the sentence
reduction in closing arguments by stating "[t]he reward that he got was
that in a 6 to 12 month sentence, he got six months instead of nine months.
Big reward."
The defense also
sought to impeach Patrick by eliciting testimony that Patrick had been ordered
to pay costs and restitution for his arson conviction and had failed to do so;
that he had previous convictions for fraud by wire, burglary, and arson;
that he had been paid for his testimony as an informant; that the State was paying for his food and hotel expenses
while he was testifying; and that
the subpoena used to bring Patrick to the State of Washington for Benn's trial
protected him from arrest or criminal process while he was in town.
During the trial, a
third party told the defense that the police had executed a warrant to search
Patrick's hotel room based on a tip that Patrick was dealing drugs from the
room. His room had been
searched and crack pipes, a bong, rolling paper, a razor blade, and a copper
brillo pad were recovered, but no arrests were made.
The prosecution knew about this search and failed to disclose information
about it to the defense. The
defense did not learn the name of the confidential informant who had provided
the information for the warrant until after the trial.
At a later evidentiary hearing, the informant, Melvin Stevens, testified
that Patrick was doing drugs while he was in Washington for Benn's trial.
Stevens also said that Patrick told him that Benn
did not commit the murder, but that Patrick knew enough to convict him and
needed the money.
[FN1]
FN1. As part of its factual findings following the post-conviction
evidentiary hearing, the Pierce County Superior Court found that Stevens was not
a credible witness.
Sherrie Woodard was one of the individuals who was with Patrick
when his hotel room was searched. She
testified at the state court evidentiary hearing that Patrick told her that he
planted drugs in places in order to make busts when he was working as an
informant and that Detective Padukiewicz, Patrick's supervisor, knew about it.
She also said that Patrick would keep some of the drugs from the busts
and that the detectives knew about this as well.
When Woodard went to Patrick's hotel room during the Benn trial, she saw
a large amount of money that Patrick said the police had given to him. Patrick also suggested to her that he was willing to
lie to get out of trouble. She
said Patrick's reputation for truthfulness was not very good.
Upon learning about the hotel room search during the trial, the
defense moved for a continuance to have the opportunity to question Woodard and
others involved in the hotel room search; however,
the judge denied the motion.
Walter
"Pete" Hartman testified on behalf of the prosecution and said that
Benn offered to pay him to kill Dethlefsen.
Hartman said that he initially thought it was just talk and that he never
took Benn up on his offer. [FN2]
Denver Carter, a former *1048 roommate of Benn's, testified for
the prosecution as well and said that Benn admitted to him that he had shot
Dethlefsen and Nelson. At one
point, Carter said that Benn told him that a man named "Pete" owed him
a favor and that Benn had a job for him, but that Benn never mentioned what the
job was. Benn told Carter
that, when Benn called Dethlefsen's house on the day of the murder, no one was
supposed to answer the phone, but Benn never explained what that meant.
FN2. Benn directed his counsel at trial not to cross-examine Hartman
"for fear that his family would be harmed." Benn told his lawyer that he was convinced that Hartman
was threatening his family even though his family said there were no such
threats. The defense called
no witnesses until rebuttal because of these fears. During the trial, Benn's competency was re-evaluated
three different times with conflicting expert opinions about whether he was or
was not competent. Each time,
the trial court ultimately deemed him competent and allowed the proceedings to
continue. Benn learned during the
post-conviction proceedings that he could
have impeached Hartman with the witness's admitted intoxication and hearing
difficulties at the time he spoke with Benn.
After deliberating for
approximately seven and a half hours, the jury returned a verdict of guilty on
both counts of premeditated murder. The
jury also found that the murders were part of a common scheme or plan but did
not find that they were the result of a single act of the defendant.
The jury then recommended that Benn be sentenced to death, and he was.
B. EVIDENCE
REVEALED AFTER TRIAL
Although on December
16, 1988, over two years before the trial began, the defense requested that the
prosecution disclose all evidence in its possession that was favorable to the
defendant, a great deal of impeachment evidence relating to Patrick, as well as
important exculpatory evidence relating to the alleged arson-insurance-fraud
allegation, was not turned over to the defense until after both the guilt and
penalty phases of the trial had ended.
(1) Impeachment Evidence Related to Patrick
Even though the
prosecuting attorneys had taken their first statements from Patrick over a year
before the trial, Patrick's identity was not disclosed to the defense until the
day before trial when he was added to the witness list. [FN3]
Pierce County Assistant Prosecuting Attorney Michael Johnson lied to the
defense and stated that Patrick's identity could not be disclosed because he
was in a witness protection program.
It was later discovered that he was never in such a program.
FN3. Walter "Pete" Hartman and Denver Carter were also
surprise witnesses who were not on the original witness lists.
Both of these witnesses were "discovered" by the prosecution
during the trial, well after opening statements had been delivered, and after
the defense theory had been presented to the jury.
The day that Benn's
trial was scheduled to begin, the defense brought to the court's attention the
fact that Brady material relating to Patrick had not
been provided. The defense
noted specifically that it did not have information about Patrick's prior
contacts with the police, including whether Patrick had made statements in the
past that had turned out to be incorrect. The trial court agreed and ordered the
prosecution to turn over any written material relating to Patrick's contacts
with law enforcement in the year prior to the murders.
No such material was ever produced.
The court also stated that "the prosecutor would have an obligation
to tell [the defense] if there's prior situations where the informant had not
been truthful." Prosecutor
Johnson acknowledged this obligation and stated that they "ha[d] been
notified of no such situations, your Honor."
The prosecution never turned over any information
that Patrick had engaged *1049 in improper conduct while acting as an
informant. It was later
discovered that the prosecution did not attempt to obtain this information from
any of the police detectives working on the case.
Additionally, the defense later discovered that Detectives Ronald Lewis
and Thomas Padukiewicz, both of whom supervised Patrick while he was assisting
in law enforcement investigations, knew that Patrick had stolen both drugs and
money during drug busts and that he had lied to the police about it.
The defense was never told about this.
Detective Padukiewicz had even gone so far as to write up a
"deactivation memo" stating that Patrick could no longer work as an
informant because he would not abide by department rules.
The defense was never told about Patrick's deactivation.
The defense was also
not informed that Patrick had broken into the evidence room of the California
Bureau of Narcotics Enforcement while working as an informant and had stolen
drugs that the police had previously seized. Nor was the defense told that, as a
result of this offense, Patrick was charged with burglary and numerous counts of
obstruction of justice and ultimately pled guilty to burglary.
The state did not
inform defense counsel that Patrick had admitted to making false charges while
in prison on a fraud conviction in the early 1980's. Patrick had believed that
he could get his time reduced if he reported the presence of firearms within the
prison. He therefore had
shotguns smuggled into the prison and then
told the officials that he had found them.
The prison officials discovered the scheme, and Patrick's prison sentence
was extended.
The prosecution failed
to disclose that Patrick was given $150 during Benn's trial as an advance
payment for a video-tape that Patrick claimed he had in his possession, showing
a prostitute being murdered by Benn and several other men. Patrick said that the
video was related to the "Green River case," a high profile serial
murder investigation. Patrick
never produced the tape, and the detectives working on the case said that they
thought Patrick was lying about its existence, and that his story about Benn
being involved in the "Green River" murders was "trash."
The detectives also stated that they had spoken with the prosecutors in
Benn's case about the tape and the money that was paid to Patrick.
The prosecution, however, never told the defense about either the false
tale of a "Green River" murder tape or the payment that Patrick had
received.
When Patrick was in
Washington for Benn's trial, he was stopped for a traffic offense and arrested
because of some outstanding warrants.
He called Prosecutor Johnson from jail, and Johnson ensured that he was
released without being charged. The
defense was never told about the arrest or Johnson's actions.
During the trial, the
Fife County Police Department submitted police reports to
the Pierce County prosecutor requesting that Patrick be charged with burglary.
The prosecutor's office entered an "NCF" (no charges filed) the
same day that closing arguments ended in the penalty phase of Benn's trial. This
fact was never disclosed to the defense.
During Benn's trial,
the prosecution arranged to postpone the filing of a warrant that was going to
be issued because Patrick had violated probation. Patrick's probation officer
had been told by the prosecutors not to do anything on the violation report or
the order to issue a bench warrant. The
warrant did not issue until two weeks after the verdict in Benn's case.
The prosecution never told the defense that it had prevented the issuance
of the warrant.
Testimony at the state
habeas evidentiary hearing revealed that Patrick had acted *1050 as an
informant in a murder case prior to Benn's trial, although at the trial he
denied ever having done so previously.
The defense was never told that Patrick had been an informant in a prior
murder case and that in that case also he had claimed that the defendant had
confessed to him while in jail.
At trial, Patrick
denied that he used drugs while acting as an informant; however, testimony at a post-conviction evidentiary hearing
revealed that he continuously used drugs during his time as an informant and
that the police knew about it. This
information was not disclosed to the defense.