By Maureen O’Hagan

March 31, 2003

Seattle Times

When the state want­ed to exe­cute Benjamin Harris, they said he was per­fect­ly sane. When his con­vic­tion was over­turned, they locked him up for being crazy. And recent­ly, the state con­sid­ered Harris sane enough to ask him to tes­ti­fy as a pros­e­cu­tion wit­ness in court.

Such is the unusu­al tale of Benjamin Harris, the only per­son ever exon­er­at­ed from Washington’s death row.

The catch is he nev­er went free.

In a lit­tle-known twist, Harris was tak­en to Western State Hospital in Lakewood, Pierce County, after his con­vic­tion and sen­tence were over­turned. That was after a judge ruled he was men­tal­ly com­pe­tent and a jury ruled he should not be con­fined. ​“It’s a very inter­est­ing case,” said Laurie Lola Vollen, a vis­it­ing schol­ar at Berkeley, who’s just begun a pro­gram to help rein­te­grate ​“exonerees” into soci­ety.

​“It’s about using the men­tal-health card essen­tial­ly as a tool of the state. They play it when they want to lock him up, and they deny it when they want to exe­cute him.” Harris remains at the psy­chi­atric hos­pi­tal to this day, held for six years in what was sup­posed to be a 90-day tran­si­tion pro­gram. That makes almost 20 years of con­tin­u­ous con­fine­ment.

​“In essence, he’s still in prison for a crime he nev­er com­mit­ted,” said for­mer state sen­a­tor Neil Hoff, a Tacoma lawyer who is now rep­re­sent­ing him. Harris, he said, is nei­ther dan­ger­ous nor men­tal­ly ill. ​“They found me com­pe­tent to be exe­cut­ed,” Harris said. ​“Now they’re say­ing I have all these prob­lems. That’s not the way to play the game. It’s time to get on with my life.”

But pros­e­cu­tors dis­agree. Harris is not only respon­si­ble for the mur­der of a Tacoma auto mechan­ic, he’s also grown to be seri­ous­ly and dan­ger­ous­ly men­tal­ly ill. And here lies the crux of the prob­lem: Is Benny Harris men­tal­ly ill or sane? Is he a killer or an innocent man? 


Local char­ac­ter

The mur­der vic­tim, Jimmie Turner, took two bul­lets that sum­mer of 1984, one in the head and one in the neck. When his body was found near his garage in Tacoma’s Hilltop area, there was talk that he was mixed up in crime and that sev­er­al peo­ple may have want­ed him dead. In those days, Harris was a well-known local char­ac­ter who saun­tered the streets in a snazzy suit and hat. ​“That was my trade­mark,” Harris recalled recent­ly. ​“I was pret­ty hap­py-go-lucky back then.” Most morn­ings, he’d stop by the local cof­fee shop where lawyers and leg­is­la­tors went for break­fast and gos­sip. ​“He would shake hands and walk through as if he was run­ning for pres­i­dent,” Hoff recalled. Harris, who con­sid­ered him­self a police infor­mant, often bragged about his con­nec­tions.

After Turner was shot dead, Harris went, unprompt­ed, to a detec­tive he knew and said he was­n’t involved. Then he said he would help them solve the case. Based in part on Harris’ infor­ma­tion, Gregory ​“Gay Gay” Bonds was charged that July with mur­der. But soon, the cops turned their atten­tion to their all-too-will­ing infor­mant. On Aug. 10, Harris was charged with pay­ing Bonds to kill Turner in a mur­der-for-hire plot. Within 10 weeks, he would be sen­tenced to death.


A mess of things
Murray Anderson, who died in 1994, was an expe­ri­enced defense lawyer, but he gave Harris’ case the atten­tion of a shoplift­ing charge, a judge lat­er said. His rep­re­sen­ta­tion, or lack of it, made a mess of things for both Harris and the state.

From the start, Anderson did­n’t both­er to chal­lenge the pros­e­cu­tor’s deci­sion to seek death, a move that is rou­tine and could very well have been suc­cess­ful, experts now say. His prepa­ra­tion for tri­al in Pierce County Superior Court was 1 hour and 48 min­utes talk­ing to Harris and 12 hours of oth­er work.

Anderson did­n’t inter­view most of the peo­ple who could be called to tes­ti­fy, speak­ing to only three of 32 peo­ple. And, he did­n’t con­tact a sin­gle per­son Harris said could help him. His assis­tant, Tom Haist, han­dled some of the key parts of the case, even though he was just six months out of law school.

Anderson lat­er said that his only strat­e­gy for tri­al was this: Harris should con­fess to shoot­ing Turner. His rea­son­ing was that the state’s cap­i­tal case rest­ed sole­ly on the alle­ga­tion that Harris paid Bonds to do the crime. Without the mur­der-for-hire ele­ment, it was a run-of-the-mill mur­der case, not pun­ish­able by death. So if Harris said he did the crime, he could­n’t be found guilty of pay­ing Bonds to do it and could­n’t be sen­tenced to death. At least, that was the the­o­ry.

​“Murray forced me to make a con­fes­sion,” Harris said. ​“It was about as stu­pid as it can get,” said Seattle attor­ney Allen Ressler, who rep­re­sent­ed Harris on his appeals. Anderson even put his client on the stand. Harris tes­ti­fied that he and Bonds crept up on Turner that night, and Bonds fired first.

​“After Gay Gay shot him, he flipped the gun over to Benny, Old West style, and Benny did him in,” Haist recalls of his tes­ti­mo­ny. ​“The whole sto­ry seemed unlike­ly.” And it was. The police depart­men­t’s foren­sics showed that one per­son fired both shots, a fact that did­n’t come up at tri­al. In clos­ing argu­ments, Anderson told the jury that Harris ​“does­n’t have the same moral code as we expect.” He also said his client belonged to ​“a class of men who don’t work, car­ry guns” and ​“kill peo­ple.” The jury’s deci­sion was swift: guilty. And on Oct. 31, 1984, they sen­tenced him to death. Bonds went on tri­al, too, but with a dif­fer­ent attor­ney. He was acquit­ted.

Appeals dragged on
Harris was sent to death row at the Washington State Penitentiary near Walla Walla, and for 10 years, appeal after appeal was reject­ed. Twice, Harris came with­in weeks of exe­cu­tion, but the death war­rants were stayed.

As the appeals dragged on, his lawyers began argu­ing that he was men­tal­ly ill. That’s because men­tal­ly ill peo­ple, those who can’t under­stand their cir­cum­stances, are not exe­cut­ed in this state. Even from the start, police and oth­ers had ques­tioned Harris’ men­tal state.

To this day, Harris holds some ideas that are indis­putably, well … odd. He believes, for instance, that the Mafia and the Ku Klux Klan may be linked to Turner’s mur­der and that the tri­al judge was spot­ted near the scene of the crime. And there may have been some Cuban con­spir­a­tors, too.

But over the years the state repeat­ed­ly fought the idea that Harris was men­tal­ly unsta­ble, first dur­ing a hear­ing to have a guardian appoint­ed and again dur­ing a hear­ing about his com­pe­ten­cy to be exe­cut­ed. ​“The state argued at every junc­ture that he was com­pe­tent, that he was sane,” Ressler said. Then in 1994, Harris’ appeals reached the desk of U.S. District Court Judge Robert Bryan. Bryan found that Harris’ tri­al was so flawed that his guilt was in seri­ous doubt. Anderson was to blame.

​“The one per­son in the court­room who is pro­fes­sion­al­ly oblig­at­ed to dis­play a sense of loy­al­ty and advo­ca­cy has described Harris in such a way that left him with lit­tle or no cred­i­bil­i­ty, no human­i­ty and no means to be iden­ti­fied as a peer of the jury,” Bryan wrote.

Bryan over­turned Harris’ con­vic­tion, rul­ing he must be retried or set free. Prosecutors were not hap­py. ​“This is a man who at one point admit­ted he killed this per­son,” said Kathleen Proctor, of the Pierce County Prosecutor’s Office. It turned out that retri­al was out of the ques­tion: Key wit­ness­es were either dead, in prison for mur­der them­selves, or sim­ply unwill­ing to tes­ti­fy. It looked as if Harris was going to go free.

With release loom­ing, the state decid­ed on anoth­er tac­tic: Harris was now men­tal­ly ill. To prove it, they used Harris’ own argu­ments — the ones his lawyers made to save him from exe­cu­tion — against him, said John Ladenburg, the Pierce County pros­e­cu­tor at the time. ​“The argu­ment the state end­ed up buy­ing is he had become more and more men­tal­ly imbal­anced in prison,” Ladenburg said. First they tried to con­vince a judge that Harris was incom­pe­tent to under­stand court pro­ceed­ings.

When that failed, they tried to get him civil­ly com­mit­ted as dan­ger­ous­ly men­tal­ly ill, but a jury ruled he should not be con­fined. But the state per­sist­ed and in 1997 got a court order send­ing Harris to Western State. For years, he has been in a pro­gram designed as a short-term tran­si­tion for peo­ple read­just­ing to soci­ety.

Free to wan­der
A well-kept, stout and bald­ing fel­low with large round glass­es, Harris does not give the ini­tial impres­sion he is seri­ous­ly men­tal­ly ill. He speaks in nor­mal cadence and talks calm­ly about cur­rent events and his case. ​“Believe me, I would know if I was delu­sion­al,” he said. ​“I’ve seen it (at the hos­pi­tal). I don’t resem­ble that even slight­ly.” His good behav­ior means he’s earned a hos­pi­tal job and has long been allowed to leave the grounds dur­ing the day. ​“If he’s delu­sion­al,” Hoff asked, ​“why would they let him wan­der around Tacoma?”

Earlier this month, Harris received a sub­poe­na from the Pierce County pros­e­cu­tor ask­ing him to tes­ti­fy against a nurse charged with molest­ing a patient at Western State. Recently, Hoff has been threat­en­ing to file a law­suit against the state and the coun­ty for wrong­ful­ly con­fin­ing Harris. The threats may have had some effect. At a late-February hear­ing, offi­cials said they might con­sid­er releas­ing Harris if they could come up with a detailed plan for life on the out­side. Hoff says that’s good news. Still, he wor­ries. Harris has health prob­lems. He has no place to live. Would a halfway house or group home accept him? How would he pay his way? ​“I haven’t real­ly tried to get him out before because there’s no place for him to go,” Hoff said.

While Hoff thinks Harris should be freed, he has to con­cede that his clien­t’s life isn’t so bad. ​“You take a man who’s been on death row and give him free­dom to go to a movie or stroll the grounds, he’s rea­son­ably con­tent,” Hoff said. ​“He’s like the canary. You put him in a cage for 10 years and then open the cage, the bird will fly right back in there.”