Monday, March 24, 2003
http://seattlepi.nwsource.com/local/113856_cbenn24.shtml

Death penalty off table in 1988 case
Appeals court ordered new trial for man accused of killing 2

THE ASSOCIATED PRESS

TACOMA -- Pierce County will not seek the death penalty for Gary Benn if he is convicted at his second trial on charges of aggravated first-degree murder.

Benn, 57, is awaiting retrial in the 1988 killings of longtime friend Michael Nelson and Benn's half-brother, Jack Dethlefson, in Puyallup.

At his first trial, he was convicted of aggravated first-degree murder -- the only crime punishable by death in Washington state -- and sentenced to die.

The conviction was twice upheld by the state Supreme Court.

But the conviction was overturned in U.S. District Court, a decision affirmed by the 9th U.S. Circuit Court of Appeals early last year. The U.S. Supreme Court declined to review the 9th Circuit decision granting Benn a new trial.

Prosecutor Gerry Horne, who expressed frustration with the appeals court, cited a variety of factors in deciding not to again seek execution for Benn, including loss of testimony because of witness deaths, the wishes of victims' families, the decline in Benn's health and the fact that he has not been a problem for prison authorities over the past 13 years.

In its ruling last year in San Francisco, the 9th Circuit called the case a "textbook example" of abuse of power, saying a prosecutor withheld trial evidence.

"Benn must be given that to which he is fully entitled and which he has not yet received: a fair trial," Judge Stephen Trott wrote.

"They lost their way in an effort to get a conviction," said Benn's attorney at the time, Suzanne Lee Elliot of Seattle.

The court noted that, among other things, Pierce County Prosecutor Michael Johnson was not upfront with defense attorneys about the background of a jailhouse informant whose testimony helped win the conviction. The informant has since committed suicide.

The three-judge panel found that Johnson, now retired, did not disclose that the informant allegedly was dealing drugs from a Tacoma hotel while waiting to testify against Benn. The informant told the court that Benn confessed to the killings, which prosecutors said was part of a cover-up of a mobile home fire Benn was accused of setting.

The court said prosecutors gave the defense a misleading report that did not clearly say whether the fire was accidental or arson.

At the time of the 9th Circuit ruling, Chief Deputy Prosecutor Barbara Corey-Boulet said her office could win the case without the informant's testimony.