Court Voids a Death Penalty for the 4th Time

For the fourth time this month, a federal appeals court in San Francisco has overturned a death sentence.

The ruling Tuesday by the U.S. 9th Circuit Court of Appeals, which has jurisdiction over California and eight other Western states, overturned both the death sentence and the guilty verdict of Gary Benn, who was convicted of killing two people in Puyallup, Wash., in 1988.

The four overturned death sentences were the most the court has ordered in a month. The three other reversals came in cases from California. All the cases date to the 1980s.

The ruling comes at a time of considerable ferment over the death penalty nationally and in the state of Washington.

Last year, the Washington Supreme Court overturned three death sentences, the most in any year since the state enacted its new death penalty law in 1981. Since then, 30 individuals in that state have received death sentences and half have been reversed, for a variety of reasons. In addition, six of the guilty verdicts were overturned.

The Washington Supreme Court is considering changes in the methods used to appoint lawyers to defend capital cases because of revelations last year in the Seattle Post-Intelligencer about poor representation by defense lawyers. The newspaper found that one out of five defendants in capital cases in Washington had been represented by attorneys who had been or were later disbarred, suspended or arrested.

On Tuesday, a three-judge panel of the 9th Circuit ruled that Pierce County, Wash., prosecutors had improperly failed to disclose information about a jailhouse informant who testified that Benn had confessed the crime to him in jail.

Judges Say Prosecutors Had Duty to Disclose

The case is one of a growing number in recent years where convictions or death sentences or both were overturned by courts after post-trial revelations that cast serious doubt on the veracity of a jailhouse informant.

The appeals court said Tuesday that prosecutors had failed to disclose a voluminous amount of information that would have cast doubt on the credibility of a key witness. The appellate judges said that the prosecutors had a clear duty to turn over this information under the landmark 1963 Brady vs. Maryland decision of the U.S. Supreme Court, which requires that prosecutors provide defense attorneys with any information that might exonerate their client.

The informant’s credibility was so suspect that some Pierce County detectives had written a formal memo deactivating the informant, Roy Patrick, stating that he could not be used any more because he would not abide by department rules. The defense was never told about this, the 9th Circuit said.

“The defense also was not informed that Patrick had broken into the evidence room of the California Bureau of Narcotics while he was working as an informant and had stolen drugs that the police had previously seized,” Judge Stephen Reinhardt wrote for the court.

“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,” Reinhardt wrote. His opinion was joined by judges William A. Fletcher and Stephen S. Trott.

In addition, the prosecutors failed to inform Benn’s defense lawyers that Patrick had admitted making false charges in prison on a fraud conviction in the early 1980s.

“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,” Reinhardt wrote.

Moreover, during Benn’s trial, the Police Department of another county in Washington submitted 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,” Reinhardt wrote.

In addition to Patrick’s credibility problems, the 9th Circuit chastised the prosecutors for failing to disclose information that cast doubt on the underpinnings of the case--the prosecution theory that Benn had murdered two men to keep them from telling police about his role in an alleged insurance fraud scheme involving arson.

‘Misleading’ Report Turned Over to Defense

Part of the alleged scheme involved a fire at Benn’s trailer in December 1987. A report by fire inspectors concluded that the fire was accidental. But prosecutors turned over to the defense a report that was “misleading,” and failed to disclose the fire inspector’s conclusion tha the fire “could not have resulted from arson,” Reinhardt wrote.

The 9th Circuit held that both the prosecutor’s failure to disclose information about Patrick and about the fire report standing alone would be a violation of the prosecution’s obligations under the Brady decision.

The appeals court also ruled that the Washington Supreme Court had made a “clearly erroneous ruling” when it upheld the conviction. The state Supreme Court said that even though the prosecution had failed to meet its disclosure obligations, Benn had not been prejudiced.

Judge Trott, who was both a state and federal prosecutor before being appointed to the appeals court by President Reagan, wrote a trenchant concurring opinion excoriating the Pierce County prosecutors in even stronger language than used by Reinhardt, who is one of the most liberal judges on the 9th Circuit.

“The law and the truth-seeking mission of our criminal justice system, which promise and demand a fair trial whatever the charge, are utterly undermined by such prosecutorial duplicity,” Trott wrote. “Such reprehensible conduct shames our judicial system.”

Seattle attorney Suzanne Lee Elliot, who represented Benn on appeal, said: “I think the 9th Circuit hit the nail on the head. If a prosecutor is going to use a jailhouse informant, the jury has a right to know how dirty that snitch is.”

John Samson, an assistant state attorney general, said he was not sure if Washington would seek review from the U.S. Supreme Court.

If the decision stands, Pierce County “absolutely” will retry Benn, said Barbara Corey-Boulet, chief deputy in the felony division of the Pierce County prosecuting attorney’s office. “We think we still have a solid case. Roy Patrick is now dead, but he was not a critical witness.”