Appeals Court Voids Death Sentence of Man in Gruesome Double Murder

A federal appeals court on Friday overturned the death sentence of a Lassen County man who has been on death row in San Quentin for nearly 20 years, ruling that the killer’s attorney provided unacceptably deficient representation.

The U.S. 9th Circuit Court of Appeals held 3 to 0 that attorney Thomas Buckwalter “was constitutionally ineffective in failing to investigate and present potentially compelling mitigating evidence to the jury” about his client Benjamin W. Silva.

The appellate panel ordered a new state court sentencing hearing for Silva, now 49, overturning a ruling by a federal district judge in Los Angeles.

However, the appeals court upheld Silva’s convictions on first-degree murder and kidnapping, stemming from the gruesome deaths of two college students in Madeline, Calif., in January 1981. The trial judge in the case said he had never seen any crime “more heartless or coldblooded.”

“I am pleased, obviously, and glad it was a unanimous decision,” said USC law professor Michael J. Brennan, who, along with San Francisco attorney Philip Trevino, represented Silva in his federal appeal. “Phil and I both have believed for many years that Mr. Silva was entitled to further state proceedings.”

Robert M. Foster, a deputy attorney general, said he was disappointed with the ruling. He said the state would ask the 9th Circuit to rehear the case with a larger panel of judges. He said the three-judge panel had mischaracterized Buckwalter’s performance.

Buckwalter, who is now the district attorney in Modoc County, said he would have no comment until a final ruling has been rendered.

According to testimony and court records, Silva and two other men, Joe Shelton and Norman Thomas, used a red light to simulate a police car and stop Kevin Thorpe, 21, and Laura Craig, 20, on U.S. 395 near Madeline.

The three men forced the couple to drive to Shelton’s property and took their cash and belongings, court records show.

“Thorpe then was chained to a tree while Craig was taken inside a cabin and repeatedly sexually assaulted,” according to the 9th Circuit decision.

The following day, Silva and Shelton killed Thorpe by shooting him numerous times at close range with an M-11 machine gun. Then, Thomas testified, at Silva’s direction, he dismembered Thorpe’s body.

Several days later Craig was shot twice and killed by the side of the road.

Thomas told police of the murders a few weeks later after being found in possession of a firearm in violation of his probation. In exchange for the evidence he provided, murder charges were dropped against Thomas, and he received an 11-year sentence.

Shelton was tried later that year and received a life sentence after being convicted of killing Thorpe and Craig.

Because of publicity at the time, Silva’s trial was moved to San Bernardino County. Thomas served as the key witness against Silva, who was convicted of killing Thorpe but acquitted of murdering Craig.

In 1988, the California Supreme Court, in a 6-1 ruling, upheld the guilty verdict and the death sentence against Silva. The U.S. Supreme Court declined to review the case. Then, new lawyers asked a federal judge to review the case, and a number of delays ensued.

U.S. District Judge Dickran Tevrizian rejected the defense attorney’s contention that trial lawyer Buckwalter’s performance had been inadequate at either phase of the trial.

The 9th Circuit said that although Buckwalter’s performance during the guilt or innocence portion was “far from ideal,” it still “met minimum standards of reasonableness.” But the appellate judges said the attorney was so inadequate during the penalty phase that he harmed Silva’s cause.

“Buckwalter’s failure to investigate Silva’s background and to prepare evidence relating to his family history, mental health and substance abuse problems resulted in an egregious failure to uncover and present a raft of potentially compelling mitigating evidence” to the jury in the penalty phase, Judge Betty B. Fletcher wrote.

Her opinion was joined by Judges Sidney R. Thomas and Kim M. Wardlaw.

Buckwalter had told a federal magistrate that he was hamstrung because Silva had threatened to disrupt the trial if Buckwalter contacted his parents and that this possibility prevented him from even secretly trying to investigate Silva’s background, lest his client find out.

Silva admitted telling Buckwalter that he did not want him to use his parents as witnesses, but said he never ordered Buckwalter not to talk to them or threatened to alienate the jury, Fletcher wrote.

Whatever was said, an attorney’s “duty to investigate mitigating evidence is never entirely removed nor substantially alleviated by his client’s direction not to call particular witnesses to the stand,”’ Fletcher wrote.

“Put another way, even if he could call Silva’s parents as witnesses, Buckwalter still had a duty to determine what evidence was out there in mitigation in order to make an informed decision as to how to best represent his client,” Fletcher added.

Among the evidence unearthed by Silva’s new lawyers, Fletcher emphasized, was that he had been “severely abused and neglected as a child by alcoholic and impoverished parents; that he may suffer from organic brain disorders resulting from fetal alcohol syndrome ... and that at the time of the crime, he was probably suffering from amphetamine-induced organic mental disorders and withdrawal symptoms.”

Consequently, Buckwalter’s performance was not only well below professional norms, it prejudiced Silva’s chance at the penalty phase and undermined confidence in the outcome, Fletcher wrote.