Tuesday, March 19, 2002
Too many flaws in first Benn trial; Death
penalty case should be scrupulously
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
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"
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
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,
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
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
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
good faith or bad faith of the prosecution," as the 9th
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.