Tuesday, Jan. 31, 2006 • Judge rules against motion to dismiss 1988 murder charge, prosecution tests DNA evidence

Lassen County Superior Court Judge Stephen Bradbury did not grant the defense motion to dismiss a 1988 murder charge against Inmate Wayne Lee Bowen, 47.

On Friday, Jan. 27, Bradbury said he will reserve ruling on the motion to dismiss until he has sufficient factual evidence from the trial to determine if the 17-year delay made it impossible for Bowen to get a fair trial.

Bowen is charged with the July 1988 murder of Kevin Behm, then 22, of New York.

 After Bowen was bound over to face trial in July, Prosecutor Dave Druliner, of the California Attorney General’s office, said he could not comment on why it took so long to bring the case to court. He said Bowen was brought to Susanville from state prison in Vacaville, where he was sent after he was convicted of solicitation for murder.

  Druliner said Bowen and Behm were allegedly involved in a number of burglaries in Lassen County in July 1988 and had a falling out or conflict.

  Bowen then allegedly took Behm to an isolated location on Eagle Lake Road, about a 1/4-mile north of the current Forest Service building, and shot him twice in the back of the head. Deer hunters found the remains just east of the road and reported them to the Sheriff’s Department at 7:30 p.m. on Oct. 12, 1988, according to a press release issued at the time.

The press release said the remains were severely decomposed and investigators had to study the scene and evidence to identify the body. The state cremated Behm’s remains in 1990, according to defense attorney Christopher L. Cella, who presented the motion to dismiss.

Cella argued because of the delay in prosecution, Bowen’s legal right to a fair trial has already been prejudiced, or lost.

Cella said because of the delay, Bowen lost his right to have his defense examine the body. Cella added the defense brought up the serious issue at the preliminary hearing of whether the remains were those of Kevin Behm.

At the preliminary hearing, Public Defender David Marcus disputed Behm, known as “the kid,” was murdered, saying, “His mom in New York thinks the kid’s still alive. She gets phone calls from him.”

Cella alleged the attorney general’s office only decided to prosecute the case because Bowen was soon to be released from prison. He also said the defense is unable to locate a number of witnesses who could testify Bowen was somewhere else when the murder occurred. Bowen was diagnosed in 1997 with Hepatitis B and C, which causes memory loss leaving Bowen unable to assist in his defense, Cella said.

Referring to a letter from Bowen’s doctor, Bradbury said, “I do not have a factual basis to make a finding that Mr. Bowen is impaired to an extent that it deprives the defendant of his ability to assist counsel in his own defense.”

Cella also questioned the fingerprint and dental evidence, saying the fingers were less decomposed than other skeletal remains. He added Behm’s dentist in New York questions whether the dental evidence matched Behm’s records.

“The bottom line, your honor, is this case cries out for DNA evidence,” Cella said on Friday.

Maggy Krell, of the attorney general’s office, who argued against the dismissal, said Cella did not establish the cause and effect required by law between the delay and any loss of Bowen’s right to a fair trial. She also said the AG’s office is currently doing a DNA analysis on a fragment of skull tissue and should have results in a month.

“That’s news to us,” Cella said.

Krell said investigators will compare the results to a DNA profile they are attempting to establish from the victim’s family.

Bradbury asked Marcus if the defense would like an opportunity to do its own analysis of the skull tissue.

“Frankly, I don’t want to spend the money,” Marcus said after pointing out he won’t need the test if the AG’s DNA analysis finds the victim is not Behm.

Marcus also said he plans to make a trip to New York with the defense investigator.

Bradbury set a Wednesday, March 29 court date to hear any new motions, hold a status conference and set a trial date, saying the case will obviously take much longer if the defense and prosecution end up with dueling DNA experts.