Judges order murder retrial

Associated Press

SAN FRANCISCO — Citing it as a "textbook example" of abuse of power, Washington state may not execute a man convicted of double murder because a prosecutor withheld trial evidence, a federal appeals court ruled Tuesday.

The 9th U.S. Circuit Court of Appeals ordered a new trial for Gary Benn who was convicted for the 1988 slaying of his half-brother and a longtime friend in Puyallup.

"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.

While Benn’s conviction for killing his half-brother, Jack Dethlefsen, and friend, Mike Nelson, was upheld twice by the Washington Supreme Court, the federal appeals panel said an overzealous prosecution tainted the outcome.

"They lost their way in an effort to get a conviction," said Benn’s attorney, Suzanne Lee Elliot of Seattle. "Nothing else seemed to matter."

The court noted that, among other things, Pierce County prosecutor Michael Johnson was not upfront to Benn’s attorneys about the background of a jailhouse informant whose testimony helped win the conviction. The court said it is part of a prosecutor’s constitutional oath to present evidence that may cast the prosecution’s own witnesses in a bad light.

"If a prosecutor fails to abide by this undertaking, it is the duty of the judiciary emphatically to say so," Trott wrote. "Otherwise, that oath becomes a meaningless ritual without substance."

Chief Deputy Barbara Corey-Boulet of the Pierce County Prosecutor’s Office criticized the decision, saying the county would retry Benn if the appeals court’s decision stands. She said the office would win the case without the informant, whose testimony was only the "frosting on the cake."

The informant, Roy Patrick, recently committed suicide, Corey-Boulet said.

She added that it is office policy for prosecutors to hand over all materials, including evidence that is damaging to their case.

She derided the 9th Circuit as well.

"It’s easy in a court that is opposed to capital punishment to find errors in a case," she said.

The San Francisco-based court has blocked six death-row inmates from being executed this month.

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

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

Washington Assistant Attorney General John Samson said the office was considering asking the 9th Circuit to rehear the case, or it may request the U.S. Supreme Court to intervene.

The case is Benn vs. Lambert, 00-99014.