Burns will not seek the death penalty in Silva murder case
Burns made the announcement in a press release on Friday, Nov. 3.
Silva, 53, was convicted of the abduction, robbery and murder using an automatic weapon 24 years ago in Madeline, but the murder conviction was overturned last year, making Silva eligible for parole.
No one can predict what decision the parole board might make, but even the possibility that Silva could be free again is unacceptable to Burns.
“The status of the case of the state of California versus Benjamin Wai Silva has been such that I knew the case needed to be retried,” Burns wrote in his release. “If the case was not retried, Ben Silva would be immediately eligible for parole consideration. I could not and would not rest on the hopes that the parole board would do the right thing and deny parole.”
Once Burns made the decision to re-try Silva, he had to decide what penalty he should seek. While Burns’ first decision may have been an easy one, his second decision was not.
“Having made the decision to re-try Ben Silva for the death of Kevin Thorpe,” Burns wrote, “the next question became what punishment would I seek. The state of the case is such that I have a choice: I can choose to proceed by way of a sentence of life without the possibility of parole or I can choose the death penalty. That decision is mine and mine alone.”
Although Burns believes Silva should die for his role in the murder, he said he will not seek the death penalty.
“In my heart, I believe Ben Silva should die for his crimes and, as a supporter of the death penalty, I would have no difficulty being a part of that,” Burns wrote. “However, after consulting my senior staff, reviewing the evidence available to me after 25 years of appeals and discussing the case with the victim’s family’s representative, I chose life without the possibility of parole.”
In July 2005, the Ninth Circuit Court of Appeals reversed Silva’s murder conviction and ordered the prosecution to retry or re-sentence him because of misconduct by then Lassen County District Attorney Paul DePasquale.
According to the court records, DePasquale and Silva’s defense attorney Tom Buckwalter, a former district attorney in Plumas and Modoc counties, made a secret deal not to tell the jury about an agreement to delay a mental evaluation of Thomas until after the original trial. Thomas was the chief witness for the prosecution against Silva.
“We leave Silva’s convictions on the kidnapping, robbery, and firearms charges undisturbed,” the decision said, but the court ordered Lassen County to “retry Silva within a reasonable time or re-sentence him based on these remaining convictions.”
The remaining charges subject Silva to two life sentences and he faces 15 years in federal prison on related charges, but he could be eligible for parole.
Silva, Joe Shelton and Norman Thomas kidnapped Thorpe and his girlfriend, Laura Craig, college students who passed through Madeline on their way to Oregon returning from winter break, according to the district court decision authored by Judge B. Fletcher.
In a trial held before Silva’s, Shelton was convicted of murdering both Thorpe and Craig. He was sentenced to life in prison without parole, according to court records. He appealed and was sentenced to life in prison.
Former Lassen County Superior Court Judge Joseph Harvey sentenced Thomas to seven years in prison for his part in the crimes. He entered a plea to reduced charges after providing key prosecution testimony against Silva and Shelton.
Silva and Shelton killed Thorpe by inflicting multiple gunshot wounds from an automatic weapon, according to Fletcher’s decision. Thomas then dismembered Thorpe's body with an ax (purportedly on Silva's orders) and stuffed the remains into several trash bags, which were each buried in shallow graves.
Craig was shot twice and killed by the side of a road. Thomas informed police of the murders later that month after he was found in possession of a firearm in violation of his probation.
Crucial evidence withheld
The court found the prosecutor in the original case, Lassen County DA Paul DePasquale, withheld evidence. DePasquale did not tell defense attorney Tom Buckwalter, former Plumas and Modoc county district attorney, about an agreement to delay a mental evaluation of Thomas, the chief witness for the prosecution, until after the original trial.
The Ninth Circuit Court of Appeals decisions said, “The prosecutor’s own conduct in keeping the deal secret underscores the deal’s importance.”
The decision also said, “Here, Thomas’ attorney Rex Gay declared in his uncontroverted affidavit that the prosecutor agreed with Gay’s assessment that a psychiatric evaluation of Thomas could be damaging to the State’s case against Silva.”
“… If the jury had been presented with evidence of the prosecution’s own doubts as to Thomas’s mental capacity, the jury might not have believed Thomas’s account with regard to either murder.”
“… In sum, because evidence of the undisclosed deal could well have undermined the credibility of a vital prosecution witness, ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”
The court concluded, “In our justice system, the prosecuting attorney occupies a special position of public trust. Courts, citizens, and even criminal defendants must rely on these public servants to be honorable advocates both for the community on whose behalf they litigate and for the justice system of which they are an integral part. When prosecutors betray their solemn obligations and abuse the immense power they hold, the fairness of our entire system of justice is called into doubt and public confidence in it is undermined.”
It said, “The reliability of the jury’s verdict as to Silva’s role as the triggerman in Thorpe’s murder was compromised by the Lassen County District Attorney’s unscrupulous decision to keep secret the deal he made to prevent an evaluation of the competence of the state’s star witness. The particularly atrocious nature of the crimes with which Silva was charged cannot diminish the prosecutor’s — and our court’s — duty to ensure that all persons accused of crimes receive due process of law.”
Lassen High wrestling hosts Purple and Gold Scrimmage
The Lassen High School wrestling team held its annual Purple and Gold Scrimmage on Wednesday, Dec. 4 in the Lassen High gym. The wrestling team broke up into two teams, purple and gold, and faced off in a night of wrestling that gave fans a taste of what they can expect in the coming season. Lassen...Read More...
Cougars face tough teams to prepare for a victorious season
TJ McCauley attempts to keep the ball away from a Fresno City College player during the championship basketball game of the El Camino Tournament on Sunday, Nov. 24. The Lassen Community College Cougars have been competing in pre-season tournaments and have earned several wins. Photo by Scott Nordstrom Dec....Read More...
Susanville native to play in college bowl with Boise State
Darren Lee, a Lassen High School graduate and former Lassen High football player, now plays football for Boise State and will be going with the team to a college bowl game in late December. Photo by Boise State Media Relations Dec. 6 — A Susanville native is making strides in his football career...Read More...