# Gary Benn v. John Lambert, Superintendent of the Washington State Penitentiary

> Court of Appeals for the Ninth Circuit · February 26, 2002 · 283 F.3d 1040

URL: https://www.frixlaw.com/law-library/cases/9494851

## Case

- **Full name:** Gary BENN, Petitioner-Appellee, v. John LAMBERT, Superintendent of the Washington State Penitentiary, Respondent-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 26, 2002
- **Citations:** 283 F.3d 1040; 2002 Daily Journal DAR 2161; 2002 Cal. Daily Op. Serv. 1758; 2002 U.S. App. LEXIS 2899; 2002 WL 264622
- **Precedential status:** Published
- **Opinion:** Concurrence by Trott
- **Judges:** Reinhardt, Trott, Fletcher
- **Cited by:** 222 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494851

## How later opinions describe it (automated extraction)

- holding that the prosecution’s failure to disclose multiple pieces of critical impeachment evidence that could have been used to undermine credibility of the jailhouse informant who testified that defendant admitted committing the murders was sufficient to violate Brady
- explaining that undisclosed evidence was material where it “would have substantially undermined the state’s principal theory of motive and its main support for the aggravating factor ..., as well as its contention that the killings were premeditated”
- holding that the prosecutor erred in “failing] to disclose multiple pieces of critical impeachment information that could have been used to undermine the credibility of ... a prosecution witness whose testimony was crucial to the state’s claims”
- explaining that disclosure of benefits conferred on informant “could have allowed the jury to reasonably conclude that [the informant] had a motive other than altruism for testify- ing on behalf of the [s]tate” (internal quotation marks omitted)
- holding that undisclosed 5 evidence of a crucial government witness’s drug use during the defendant’s trial was 6 material because it would “reflect on [that witness’s] competence and credibility as a 7 witness”

## Opinion text

TROTT, Circuit Judge,
Concurring:
Lord Acton, the celebrated 19th century British historian and student of politics, formulated an observation about government and human nature that aptly, and regrettably, fits this case: “Power tends to corrupt, and absolute power corrupts absolutely.” It was for this reason that over one hundred years earlier, the Framers of *1063 our Constitution meticulously separated the powers given by the People to our government and erected against each a structural series of checks and balances designed to confront the potential for abuse. Then, by enacting the Bill of Rights, the Framers made certain that basic principles of a fair and just trial could not be episodically overridden, even by a unanimous legislature, an overzealous executive, or a wayward judiciary.
In large measure, the Framers were influenced by Charles de Secondat, baron de Montesquieu, an astute student of history and politics in his own right, who, in his seminal work The Spirit of the Laws, said:
Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power: but constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary, from the very nature of things, power should be a check to power.
This case provides us with a textbook example of the abuse of executive power contemplated by Montesquieu, Lord Acton, and the Framers of our Constitution. Rather than adhere to the clear letter of the law, which itself is the ultimate check against arrogation of power, the prosecutor apparently deliberately withheld from the trial court and from the jury admissible evidence that would cause any fair-minded person to have grave reservations about the credibility of a key government witness. The State’s transgressions are well identified in dissent by Justice Johnson of the Supreme Court of Washington:
The State withheld information from Benn’s attorneys prior to and during his trial that the State was under direct court order to produce. The State violated the trial court’s discovery order by failing to promptly provide a taped statement and documents received from Patrick regarding Benn’s case. The State also violated a direct court order to produce information specific to Patrick’s previous dealings with law enforcement officers.
Testimony from the reference hearing also shows the State failed to list Patrick as a State witness until the eve of trial and prevented Benn’s attorneys from interviewing Patrick until the day before trial by erroneously claiming Patrick was involved in a witness protection program. The State’s misconduct deprived Benn of his Sixth Amendment right to fully cross-examine Patrick.
In re Benn, 134 Wash.2d 868 , 952 P.2d 116 , 153 (1998) (Johnson, J., dissenting).
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. Although our Constitution guarantees to a person whose liberty has been placed in jeopardy by the State the right to confront witnesses in order to test their credibility, that right was willfully impaired in this case. By unlawfully withholding patently damaging and damning impeachment evidence, the prosecutor knowingly and willfully prevented Benn from confronting a key witness against him. Such reprehensible conduct shames our judicial system.
Prosecutors routinely take an oath of office when they become stewards of the executive power of government. That oath uniformly includes a promise at all times to support and defend the Constitution of the United States. Fortunately, the great majority of all prosecutors appreciate the solemnity of this oath. However, if a prosecutor fails to abide by this *1064 undertaking, it is the duty of the judiciary emphatically to say so. Otherwise, that oath becomes a meaningless ritual without substance.
To his credit, Washington’s Attorney General does not defend the prosecutor’s indefensible behavior, each aspect of which is accurately described in Judge Reinhardt’s thorough opinion. In oral argument, counsel for the respondent readily conceded egregious wrongdoing, but argued nevertheless that on this record, the wrongdoing did not prejudice the petitioner. With all due deference to the Supreme Court of the State of Washington, I respectfully disagree, as do my colleagues, with the State’s assessment of this issue. Thus, I join in Judge Reinhardt’s explanation of our reasons and conclusions compelled here by the Constitution, and in my colleagues’ decision in this case. Benn must be given that to which he is fully entitled and which he has not yet received: a fair trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494851. Public record. Not legal advice.