The News Tribune  
Tacoma, WA

Copyright 2002

Tuesday, March 19, 2002

Editorial

Too many flaws in first Benn trial; Death penalty case should be scrupulously prosecuted

Gary Benn of Puyallup, an inmate on Washington's death row, deserves a new trial. The Pierce County prosecutor's office would benefit as well.

Benn was sentenced to die by a Pierce County jury in 1988 for committing two murders related to an insurance scam. Last month, a three-judge panel of the 9th U.S. Circuit Court of Appeals handed down a blistering critique of the prosecution's conduct of the case.

One of the judges declared that "such reprehensible conduct shames our judicial system." The opinion affirmed a decision by U.S. District Court Judge Franklin Burgess of Tacoma to grant Benn a new trial. According to Burgess, the late Roy Patrick - a key prosecution witness - was "a liar for hire."

Pierce County Prosecutor Gerry Horne could push for an appeal to the U.S. Supreme Court. But the ends of justice - and his office's reputation - would be better served by granting Benn a new trial.

To a large degree, the "aggravating circumstances" leading to Benn's death sentence were established by the testimony of Patrick, a jailhouse snitch who was dirty to the core.

Ordinarily, prosecutors would be skeptical about the veracity of information offered by such informants, but in this case they took a chance. Patrick, who once shared a jail cell with Benn, offered physical evidence: a document with diagrams of the murder scene in Benn's handwriting and with Benn's fingerprints on them. According to Patrick, Benn and his victims were part of two insurance scams.

Prosecutors argued that Benn killed his accomplices to keep them from telling the police about the crimes.

Before trial, prosecutors are supposed to reveal any potentially exculpatory evidence about a prosecution witness to the defense, who could then attack the witness' credibility during cross-examination. In this case, Patrick had much to hide about his shady past - and much of it stayed hidden before and during trial. For example, Benn's attorneys never found out that Patrick's police handlers had "deactivated" him as an informant because he had stolen drugs and money during drugs busts and then lied to police. That's bad, but his lying didn't end there.

Prosecutors failed to reveal that Patrick, while in prison in the 1980s, had lied in an attempt to shorten his sentence and that he lied about a nonexistent videotape implicating Benn as the Green River serial killer. In perhaps the most damning characterization of all, the court also said deputy prosecutor Michael Johnson lied to the defense when he erroneously claimed Patrick was in a witness protection program and used it as the reason to withhold Patrick's identity.

Horne and chief deputy prosecutor Barbara Corey-Boulet strongly disagree with the circuit court's characterization of prosecutors' motives. They say Johnson told the defense what he believed to be true at the time. According to Horne and Corey-Boulet, other improperly withheld information was due to prosecutorial negligence - not an intentional effort by prosecutors to deceive the defense.

But that's still not good enough. The failure by prosecutors to hand over important information on Patrick's lack of credibility clearly violated Benn's due process rights, "irrespective of the good faith or bad faith of the prosecution," as the 9th Circuit panel noted.  The need for prosecutors to respect those rights is important in all criminal cases, but it is absolutely critical in cases involving the death penalty.

Horne is confident the evidence is strong enough that a retrial of Benn would produce the same result. That may be so, but any conviction that could result in the death penalty must follow the scrupulous application of trial procedures. That condition has yet to be met in the Benn case.