Wednesday, February 27, 2002
SEATTLE POST-INTELLIGENCER REPORTER
A man once condemned to die for two slayings should get a new trial because Pierce County prosecutors hid evidence that would have destroyed the credibility of a jailhouse snitch who testified against him, a federal appeals court ruled yesterday.
Gary Michael Benn was sentenced to die in 1990 for shooting to death his half-brother and a longtime friend. In his trial, his former cellmate told jurors Benn confessed to the murders and was looking for someone to pin it on.
But the cellmate, Roy Patrick, had an admitted habit of lying, according to court papers. He once smuggled shotguns into prison so he could get credit for "finding" them. He stole drugs and cash while working as a police informant.
He even lied about evidence against Benn, claiming he had a videotape of Benn and several other men killing a prostitute and suggesting it was linked to the Green River killings. Patrick was given $150 to produce the tape -- before investigators concluded it didn't exist.
The 9th U.S. Circuit Court of Appeals' ruling, which affirmed an earlier decision by U.S. District Judge Franklin Burgess, found that prosecutors should have revealed Patrick's checkered past.
"Such reprehensible conduct shames our judicial system," wrote Judge Stephen Trott, calling the case "a textbook example of the abuse of executive power."
Benn's attorneys, David Zuckerman and Suzanne Lee Elliott, agreed.
"I think it tells prosecutors, if you're going to present the testimony of a snitch, you have to reveal just how dirty that snitch is," Zuckerman said.
The court held that prosecutors should have disclosed information about Patrick's recent run-ins with the law, including a police raid that allegedly turned up drug paraphernalia.
Patrick was also arrested for outstanding warrants and called the assistant prosecutor handling Benn's case, Michael Johnson, "who ensured that he was released without being charged," the judges wrote.
Johnson has since retired, but the prosecutor's office said errors in the Benn case were inadvertent and made by both the prosecution and the defense.
"Obviously, we don't condone withholding information," said Barbara Corey-Boulet, assistant chief criminal deputy prosecutor.
She said if the ruling stands, her office is fully prepared to retry the case -- even without the testimony of Patrick, whom she said killed himself recently in California.
On Feb. 10, 1988, Jack Dethlefsen and Michael Nelson were each shot once in the chest and head at Nelson's Puyallup-area home. Benn called 911 himself and maintains he shot both men in self-defense during a heated argument.
Prosecutors argued that Benn, now 56, killed the men because they were pressuring him to share insurance proceeds from an arson and burglary the trio staged. Patrick's testimony bolstered that theory.
P-I reporter Tracy Johnson can be reached at 206-467-5942 or firstname.lastname@example.org